Should a Secret Tape Be Kept Secret?  | American Journalism Review
 AJR  Columns :    FIRST AMENDMENT WATCH    
From AJR,   October 1997

Should a Secret Tape Be Kept Secret?   

A federal appeals panel rejects a suit challenging ABC.

By Jane Kirtley
Jane Kirtley (kirtl001@tc.umn.edu) is the Silha Professor of Media Ethics and Law at the University of Minnesota's School of Journalism and Mass Communications.     


Can a reluctant source expect that her conversation with a journalist will be kept private?

Beverly Deteresa is an American Airlines flight attendant who was assigned to the first class cabin on a June 1994 trip from Los Angeles to Chicago. One of the passengers was O.J. Simpson.

On June 19, Anthony Radziwill, an ABC producer, came to the door of Deteresa's condominium, identified himself and asked if she would be willing to appear on a television program.

Although initially hesitant, Deteresa nevertheless talked with Radziwill on her doorstep for several minutes, expressing frustration at inaccurate news reports about the flight. She volunteered that Simpson had not, as reported, kept his hand in a bag during the trip. Deteresa concluded the conversation with the promise she would "think about" appearing on the show.

When Radziwill called Deteresa the next morning, she declined to go on camera. Radziwill informed her that he had audiotaped their entire conversation the previous evening and that a camera operator had videotaped the interview from a nearby street.

Deteresa's husband called ABC and asked the network to refrain from airing either of the tapes. That night, ABC broadcast five seconds of the videotape on "Day One," with a voiceover summarizing Deteresa's remarks, but did not identify her by name. No part of the audiotape was used.

ýeteresa sued in federal court in Santa Ana, California, arguing that the producer and the network violated the California eavesdropping statute by taping the conversation without her knowledge or consent. She also claimed violation of the federal eavesdropping statute as well as common law invasion of privacy.

The district court threw out all of Deteresa's claims. A divided appellate panel in Pasadena affirmed its ruling.

The entire panel agreed with the dismissal of most of Deteresa's claims. It found the network hadn't violated the federal eavesdropping statute, which permits recording conversations with the consent of one party unless the tape is made for an unlawful purpose.

The court found no evidence that Radziwill made the tapes to violate Deteresa's privacy, or for any other illegal reason. Similarly, the court ruled that neither taping constituted a significant invasion of privacy. The videotape showed Deteresa standing in public view, and the audiotape recorded a voluntary conversation with an individual who had identified himself as a journalist. No intimate details of anyone's life had been recorded or broadcast.

The majority also agreed that ABC did not violate the state eavesdropping statute, which prohibits recording a "confidential communication" without the consent of all parties. Deteresa could not reasonably have expected that her conversation with a journalist would remain private, the majority said.

The dissenting judge, Robert H. Whaley, had a different view. He suggested that the California legislature may have intended that the speaker, rather than the listener, should control the confidentiality of a conversation, at least if an electronic recording is involved. Adopting the majority's position would amount to a rule that "individuals who talk to reporters presumptively consent to the secret recording of those conversations."

As a legal matter, the conflict between the First Amendment right to gather news and the 12 state laws prohibiting secret recordings long predates Deteresa's case.

In 1978, the U.S. Supreme Court let stand a ruling that the Florida statute requiring all-party consent to recordings does not violate the First Amendment. But in 1992, a trial court judge in Pennsylvania threw out criminal charges against a journalist accused of violating the state's all-party consent statute when he recorded a telephone interview without telling a murder suspect he was doing so. That court found that the suspect had no expectation of privacy because he had previously spoken with the same journalist and had been quoted at length.

Many a news subject, public and private figure alike, has regretted talking to a journalist, and many try to withdraw consent after the fact. If that doesn't stop the story, some sue.

Surreptitious recording remains an ethical minefield for journalists. But to allow eavesdropping laws to be used to punish truthful and newsworthy speech would be nothing less than prior restraint. As the dissenting panelist recognized, the real issue presented by cases like Deteresa's is not privacy. It is who controls the dissemination of news.

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