Freedom of the press is guaranteed by the First Amendment to the Constitution. Still, it doesn't mean journalists can just do anything in pursuit of a scoop. There are rules and even the most dedicated reporter must adhere to them, however devoted to the truth.
Questions about what journalists are allowed to do were recently considered in a reporter's legal primer published by the Columbia Journalism Review. It looked at recording police in public and regular people on the phone, asking how far a reporter can go to get us what we want to know.
Recording Police in Public OK
Last week, the Northern District of California ruled that a uniformed police chief, speaking at a public meeting in his capacity as chief, violated a man's First Amendment rights by threatening to arrest him for recording. The two were speaking about the meeting after it was over when the chief threatened to lock the man up.
The court wrote, "[T]he First Amendment protects a 'right to film matters of public interest.' In other words, 'the First Amendment protects the filming of government officials in public spaces.' Restrictions on recording police officers in public places 'interfere ... with the gathering and dissemination of information about government officials performing their duties in public.'
The holding was consistent with others nationwide. Reporters and regular citizens may generally record public officials in their official capacities.
Recording Phone Calls Without Consent
Although federal wiretapping laws consider one person consent to a recording of a phone call, reporters cannot just record anything without asking permission. The extent to which a recording is illegal will depend on where all the speakers are located.
States all have different statutes on recordings. Which ones will apply in a given situation is not always clear. The law can get very dicey when it comes to phone conversations, particularly conference calls.
Some states use a one-party consent rule while others require all-party consent. As CJR asked, "If a person lives in Virginia but has a DC cell number and is on vacation in California, and she receives a call from a guy in Massachusetts and wants to record their conversation, which law applies?" And what about a pocket dial -- can such calls be recorded legally?
If there's a conflict, the most prudent thing to do is comply with the most restrictive rule, the primer suggests.
The Best Bet
Of course, the safest bet is to get permission from people you are recording, whether you are a reporter or not. Failing to do so can subject you to federal and state criminal charges, and possibly to a civil suit.