Legal Commentary

Nightline is Coming to Talk to Me

By Professor University of Miami School of Law

In a sign either that I'm getting stronger or that I'm nuts, I've agreed to be interviewed on camera by a crew from ABC's Nightline tomorrow a bit after class. They want to know about when it's OK to film and record people in public (and sometimes put it on YouTube).

Many states — including Florida — have two-party consent laws requiring that speakers agree to be recorded (one-party consent laws only require that the person doing the recording consent). Oddly, most of those states don't use a similar rule for photos or videos, most likely because many of these laws were drafted with wiretapping/phone recording in mind as the evil to be controlled; state public policy is/was that citizens have a reasonable expectation of privacy in their telephone communications. But no one was thinking about videos, perhaps because video equipment was exotic and expensive; allowing photos in public is also consistent with the “plain view” doctrines that apply in the context of police investigations.

But even on its own terms, the two-party consent rule runs into the First Amendment if the conversation is in a public place, and even more so if it is with a public official … say, a police officer. Conversely, there is also the issue of the citizen's privacy right if a third party (or the state) seeks to publish the recording. Currently common law privacy torts cover outrageous interference with privacy in public places, but these are very very limited circumstances such as accident victims speaking to first responders (medical privacy) or upskirt photos (legal pudeur). Only California has tried to legislate an anti-paparazzi rule, and even this is carefully circumscribed to avoid very real First Amendment concerns.

As for the photos, that's getting harder and harder too in the face of spurious claims of “security” and “anti-terrorism” that have been raised, usually arbitrarily and without actual legal authority, to prevent still photography of public buildings.

I gather the ABC cameras will also be visiting local celebrity photography-is-not-a-crime Carlos Miller.

The segment won't air for some time, though.

Full post as published by Discourse.net on September 02, 2010 (boomark / email).