California Penal Code Section 632 prohibits recording a "confidential communication" without "the consent of all parties." It goes on to define said "confidential communication" as an exchange "carried on in such circumstances as may reasonably indicate that any party to the communication desires it to be confined to the parties thereto."
An on-the-record chat about a ballot measure among a political reporter, a spokesperson, and two government lawyers doesn't come close to meeting that standard. Not that you'd know it from today's story. The Chronicle offers a slew of accusatory quotes from Lucy Dalglish, executive director of the Virginia-based Reporters Committee for Freedom of the Press, who "believes the actions of Brown's office are outrageous and probably illegal."
The input of a California lawyer seemed relevant on this question, so we called David Greene of the First Amendment Project in Oakland. (Also quoted in the Chron story.) He offered a very different take from that of Dalglish. "They didn't violate the law," he said. "Does it appear unseemly? Sure. It seems yucky whenever the government secretly records something."
Make no mistake: Brown spokesman Scott Gerber pulled a boneheaded move by not letting Marinucci know he was recording their conversation. (Apparently, Gerber has also recorded similar chats in the past without notifying reporters, a practice the AG's office says will now be halted.) But the Chronicle could have done its readers a service by illuminating the legal questions involved more candidly, rather than trying to turn Marinucci into a First-Amendment heroine with the misleading implication that a crime occurred.
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