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:
10:39 AM PT — Antonio Brown’s camp is now suggesting Jon Gruden gave CONSENT for the NFL player to post the video of the call AFTER the conversation was recorded.
AB’s producer, Alejandro Narciso, called into the Dan Le Batard radio show Monday morning to explain how things went down.
<SNIP>Alejandro says they sent the edited footage to Gruden to get his thoughts and approval — and Gruden sent a barrage of text messages back raving about the clip.AB’s camp took the positive comments as “consent” and decided to move forward with publishing it. If Alejandro’s story is true, it cuts well for AB but doesn’t really absolve him if Gruden decides he wants to move forward with prosecution.
Even before this new info came to light, Stewart said he didn’t think anything would come of it, unless the call got used for some sort of financial benefit to Brown, such as its placement in an ad or paid promotion. Still there are some other legal issues pertaining to the video that go beyond Gruden’s knowledge of the recording, Stewart said:
It’s already a bit dicey that Brown used the soundtrack from “Moonlight” as the background music, which could get a takedown if the owners so chose.
Long story short, Brown probably technically violated the law, and, yes, there are potential penalties in play, but two guys making millions of dollars annually in a league worth billions aren’t like to beef about this in a court of law.
It’s one of those situations where I’d love to see a case filed and arguments made to see how judges sort out the details of this, but it’s also extremely unlikely that would happen. Everyone involved has better ways to spend their time.
That said, people usually seem to have nothing better to do that go after journalists that bend the law or otherwise annoy them, so here are three simple tips to help keep you out of a jam:
- Know the law: The best defense you have against claims that you broke the law is to know full well that you didn’t. The guide provided earlier in the post should give you a starting point for your state. It appears a bit dated, so if you’re worried that things might have changed (even though they probably haven’t), feel free to look at your state’s SPJ website and poke around there. It’s a pretty safe bet you can find a state-specific answer there.
- If things seem weird, ask for help: Comedian George Carlin used to refer to the conversations between his grade-school class and his parish priest as “Heavy Mystery Time.” During that time, the kids would ask all sorts of weird questions like, “If God is all powerful, can he make a rock so big that he himself can’t lift it?” The same kinds of things can happen when applying older laws to our digital age. Some questions like, “What if I’m calling from a one-party state to someone in a two-party state? Do I need permission?” are obvious. However, questions like, “What if I call someone on their mobile phone who lives in my one-party state, but it turns out they were on vacation in a two-party state, but I didn’t know that?” can make things complicated. If you don’t know how a law will change based on where you are, where your source is, if they have a different area code on the phone than where they live etc., ask an expert for help before you paint yourself into a corner.
- Get permission: This is the one that solves all sorts of problems in the easiest possible way. Ethically speaking, many journalists would argue that getting permission from a source to record a conversation is the right thing to do. Ethics aside, if you ask, “I’m recording this call. Is that OK with you?” it legally protects you from the other issues listed above. One former radio journalist told me he used to start the recording with the dial tone, dial the number and start the conversation with it all on tape. Once he introduced himself, he would tell the source he was recording the call and ask if that was OK with the source. If the source said yes, it was on the recording. If the source said no, he would explain WHY he wanted to record it (safer for both of us, clear record, a better story with soundbites etc.) and ask again. If the source said no, he would tell the source he was turning off the recorder and then do so. No matter which way it went, he always had a recorded back up of what happened in case of a later legal jam.
