Antonio Brown’s “Ain’t No More Games” video, California’s two-party consent law and what you need to know about recording your sources

The saga of former-Raider-turned-Patriot wide receiver Antonio Brown took a strange legal turn this week, thanks in part to a law that actually matters to you as a student journalist.

Brown, a talented and yet volatile player, began this season with the Oakland Raiders by complaining about rules surround his helmet, complaining about his injured feet and ripping his own general manager for levying fines against him. He then asked for his release on social media and the Raiders complied gladly.

In the middle of all this, Brown published a hype video of himself playing with his kids and working out. The video included content from a call between Brown and his coach, Jon Gruden.


What makes this problematic is that it appears Gruden knew nothing about the recording of the call, and California has a law against that.

(NOTE: I put this together early Tuesday, only to find out when I woke up this morning that Brown has been accused of rape in a lawsuit. Deadspin posted both the formal complaint on its website along with text messages included in it that Brown is accused of sending to plaintiff Britney Taylor. I had an easier time understanding the legal jargon in the court filing than I did translating Brown’s off-color texts. With all this in mind, I think we can all agree that Brown now has more on his plate from a legal standpoint than worrying if Gruden is coming after him over a phone call. )

States have specific laws when it comes to recording people on the phone (or other similar communication devices), but most laws center on how many people on the call have to know the recording is occurring:

  • One-party consent: This means that only one of the two people on the call needs to be aware that the call is being recorded. In other words, if you live in a one-party-consent state, you can call someone and be recording from the moment of the dial tone. You are not legally obligated to tell that person you are recording or to get that person’s permission to record the call. (Whether you should be up front about this as an ethical consideration is a totally different argument.) According to the Digital Media Law project, 38 states and the District of Columbia operate under this approach.
  • Two-party consent: This means that all people (usually only the two people on the call, but in the case of conference calls etc., everyone involved has to be on board) have to know about the recording and approve of it. California is one of the 12 states that operate this way, which theoretically presents a problem for Brown.

(To find out which way your state swings on this, you can go to this guide from the Reporters Committee for Freedom of the Press, which lays out everything in both a grid and a state-by-state analysis for you.)

On one of the Sunday pre-game shows, former Steelers coach Bill Cowher mentioned that it was illegal for Brown to do this. Once I checked to make sure he was right, I reached out to Chip Stewart, a faculty member at TCU and one of my favorite legal eagles, to see what he thought the shake out from this would be, if anything.

His response was kind of what I figured, given that the Raiders wanted to get away from this Dumpster fire as fast as possible:

I’d say it’s not likely Brown would be prosecuted for doing this, but presuming that the conversation – Gruden calling and Brown recording – took place in California, and that the parties reasonably expected that nobody was recording it, then yes, it is technically a violation of California law.

Section 632 of the California Penal Code makes recording a conversation without the consent of all parties to that conversation a crime punishable by up to a $2,500 fine or up to a year in jail. But that’s not really going to happen.

I doubt Gruden would make such a big deal of it that he’d want to file a complaint to a prosecutor, and likewise, I doubt prosecutors would take this up on their own initiative to prosecute and drag everyone to court as a witness.

Further complicating this situation, news reports filed late Monday and early Tuesday noted that Gruden had known about the recording and had given his blessing to Brown’s use of it in the video:

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