While reporting a magazine piece on Jerry Brown this summer,
I talked a few times to his spokesman Scott Gerber, who resigned Monday after
reports that he recorded phone calls with reporters without their knowledge. We
don’t know which reporters Gerber taped. If I’m one of them, I don’t feel at
all violated.
Here’s why: the state law that
Gerber may have violated with his secret recordings is a terrible statute. In
fact, under federal law and the law in 38 states, what he did is perfectly
legal. (Those states have one-party consent laws; if one party to a
conversation knows it’s being recorded, then the recording is legal). The irony
of the Gerber case, the first "scandal" of the Brown campaign is this: the supposed
victims of Gerber – journalists and the public they serve – are the people who
suffer most under the law.
The sections of the Penal Code in
question makes eavesdropping or recording of "a confidential communication"
illegal "without the consent of all parties to a confidential
communication." (Emphasis on the "all" is mine). The penalty is a $2,500 fine
and up to one year in prison. That’s right, you don’t even have to record-just
listening in on a confidential conversation may be against the law in some
situations. Effectively, that law could make a lot of good, effective reporting
– sneaking into confidential meetings to listen to the contents, listening into
labor negotiations through closed doors, or letting a source let you listen in
on a phone conversation — a crime.
Those are just the reporting
basics. The law also effectively outlaws some of the best reporting done by TV
and electronic media: secret camera and secret audio recording of wrongdoers.
Such reporting is more essential than ever at a time when most institutions,
public and private, simply refuse to answer questions and aggressively resisit
any kind of public scrutiny. You may have noticed that while national media
outlets often do that kind of investigation, you rarely if ever see that kind
of investigative work done in California. This law is one reason why.
But the restrictions on secret
recording aren’t the worse part of the state law. The statute also may make it
illegal for reporters – or anyone – who learn of the contents of such a
confidential communication to disclose its contents. So, let’s say a public
official records someone attempting to bribe them over the phone and gives the
tape to a reporter, who writes a story. The reporter would have performed a
public service – but he or she may have committed a crime that has a penalty of
$5,000 and one year in jail.
Now to Gerber’s case. He made a
serious mistake by not telling the reporter initially that he was recording the
call (and, according to news reports, by not telling his superiors what he was
doing). That will hurt his career for a long time; spokesmen need to have the
trust of both their bosses and the press. As an employee of the attorney
general, he had a special obligation to obey all laws, even the stupid ones.
But even if his communications with reporters are judged to be confidential
communication (and they’re probably not), what Gerber did is no crime. And it
shouldn’t have cost him his job.
The real crime is the law. The best
way for Gerber and Brown to atone for this mistake would be to get this statute
repealed, and thus to make it easier for reporters to find out the truth, and
expose the bad guys.