A New Threat  | American Journalism Review
 AJR  Columns :    FIRST AMENDMENT WATCH    
From AJR,   September 2001

A New Threat   

A ruling in a Massachusetts wiretapping case could inhibit the media’s oversight of the government.

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.     


Media organizations and their lawyers were relieved when the U.S. Supreme Court ruled in May that the First Amendment protects journalists from being prosecuted under federal or state wiretap laws for publishing the contents of an illegally intercepted telephone call.

Bartnicki vs. Vopper was hailed as a clear reaffirmation of the principle that reporters may publish truthful information of public importance--so long as they did nothing illegal themselves to obtain it.

But what would be the result if the journalist made the tape recording? The Massachusetts Supreme Judicial Court may have supplied the answer, at least for the moment, and it isn't good news for journalists.

In October 1998, an Abington police officer stopped Michael J. Hyde, who was driving a noisy white Porsche with a burned-out license-plate light. Three other officers arrived, and they ordered Hyde and his passenger out of the car, frisked the passenger and examined a plastic bag on the floor of the car, which turned out to contain compact disks.

According to the court opinion, "the stop quickly became confrontational." No traffic citation was issued, and Hyde and his companion were allowed to leave with only an oral warning.

Six days later, Hyde filed a formal complaint at the Abington police station. He supplemented his complaint with an audiotape recording of the roadside exchange that he had made without the officers' knowledge or consent. The internal investigation that followed exonerated the officers. In the meantime, Hyde was charged with violating the Massachusetts wiretap law, which prohibits the secret recording of any "oral communication" without consent of all parties.

Hyde asked the court to dismiss the case, arguing that the wiretap law was intended to protect individuals' privacy, not police officers who, he claimed, could have no expectation of privacy in the course of carrying out their official duties. The trial judge disagreed; the case went to trial, and Hyde was convicted of four counts of violating the Massachusetts law.

Hyde appealed to the state's highest court, which affirmed the conviction in July. In an opinion by Justice John M. Greaney, the majority ruled that the plain language of the statute covered the circumstances of this case and unambiguously prohibited the secret recording of anyone's speech, except in limited circumstances, such as by law-enforcement officials during the course of an investigation. Greaney dismissed Hyde's arguments that the police had no expectation of privacy while conducting a traffic stop, predicting that, if recordings like his were allowed, "every police encounter would be available for secret recording."

Chief Justice Margaret H. Marshall, joined by a second justice, dissented. Drawing an analogy between Hyde's recording and the infamous Rodney King beating videotape made by bystander George Holliday, she warned that had that incident occurred in Massachusetts, rather than California, "Holliday would have been exposed to criminal indictment rather than lauded for exposing an injustice."

Marshall also argued that the purpose of the wiretap law was to protect secret conversations in which there is a legitimate expectation of privacy, not the wrongdoings of police officials. She cautioned that the majority's ruling would threaten the ability of the news media to monitor government activities. The chief justice observed that, "had Michael Hyde...been a news reporter he could have faced the same criminal consequences that the court now sanctions."

Only about a dozen states require "all party" consent to the audio recording of a conversation, so the rationale behind the Massachusetts ruling would not apply in most jurisdictions. But it is symptomatic of the deference that legislatures and courts increasingly award to the concept of privacy, leading to absurd results. Coincidentally, Louis Brandeis lived in Boston when, in 1890, he coauthored the article in the Harvard Law Review that first proposed the creation of a legal "right to privacy" in the United States. Would Brandeis, who deplored the government's use of surveillance devices as much as he loathed an intrusive press, agree with the outcome of this case?

The fundamental flaw in the majority's reasoning is the assumption that the police have a right to privacy when conducting a traffic stop. The U.S. Supreme Court has made clear that drivers and passengers who are pulled over by police have a diminished expectation of privacy. Surely the officials who intrude into an individual's private automobile should have even less. And surely the public's interest in keeping an eye on the police should outweigh whatever privacy interest they have.

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