Surreptitiously recording high school coach's speeches to players isn't a crime, says Texas court

|The Volokh Conspiracy |

An interesting decision, and I think a correct one, handed down Tuesday by a Texas Court of Appeals panel in Long v. State:

In essence, a person violates the [Texas] wiretap statute by intentionally recording, or intentionally disclosing the contents of, a "wire, oral, or electronic communication." [Despite the name of the statute, it is not limited to wiretaps.-EV] For purposes of the wiretap statute, an "oral communication" is one "uttered by a person exhibiting an expectation that the communication is not subject to interception under circumstances justifying that expectation." [Emphasis added].

The threshold question, as framed by the parties, is whether the coach had a reasonable expectation of privacy under the circumstances. . . .

Lelon "Skip" Townsend was hired in 2011 to coach the Argyle High School girls' basketball team. Townsend was, in his own words, an intense coach, who preached discipline and accountability. Not surprisingly, reports of Townsend berating and belittling players in practice began surfacing the following school year. Long, a member of the Argyle School Board, was concerned about the reports, and she grew increasingly concerned when parents began contacting her to complain of Townsend's treatment of their children. Long's daughter had also been a member of the basketball team before quitting after the first regular season game.

On February 7, 2012, the Argyle High School girls' basketball team traveled to Sanger to play the Sanger High School girls' basketball team for the district title. Long's daughter attended the game as a spectator and, with the assistance of a Sanger student, obtained access to the visiting locker room before halftime for the purpose of surreptitiously videotaping Townsend. Long's daughter taped an iPhone to the inside of a locker and set it to record. The iPhone captured an audio and video recording of Townsend's half-time speech and an audio recording of Townsend's post-game speech.

In March 2012, Long showed the recordings, which were on her computer at work, to her assistant principal. Later that month, Long mailed the recordings to the other members of Argyle School Board, and the recordings were distributed to the Board on the night of the meeting to consider Townsend's probationary contract. A few days later, the Superintendent of the Argyle Independent School District turned over the recordings to the police. A detective with the Sanger Police Department eventually traced the recordings to Long and her daughter.

Long was charged [and convicted under the wiretap statute]. . . .

It is beyond dispute that the Texas criminal wiretap statute, Section 16.02, is substantially similar to the federal one on which it is modeled, the Wiretap Act, codified as 18 U.S.C. §§ 2510-2521. . . . [I]n interpreting Section 16.02, we may rely on decisions from other state courts and federal courts construing the Wiretap Act.

The legislative history of the Wiretap Act reveals that Congress's intent was to protect persons engaged in oral communications under circumstances justifying an expectation of privacy. Thus, to determine whether a person had a reasonable expectation of privacy in his speech, we employ a two-prong test: (1) did the person exhibit a subjective expectation of privacy; and (2), if so, is that subjective expectation one society is willing to recognize as reasonable. . . .

Based on the application of existing authority to the evidence adduced at trial, we conclude that Townsend did not have a reasonable expectation of privacy in his half-time and post-game speeches to his players.

It is widely accepted that a public school teacher has no reasonable expectation of privacy in a classroom setting. In [an earlier Texas case], the court held that a public school teacher had no legal complaint against a school district for audiotaping and videotaping her classroom performance because a teacher has no reasonable expectation of privacy while teaching in a public classroom. . . . The court noted that the teacher "was videotaped in a public classroom, in full view of her students, faculty members, and administrators [and] [a]t no point, did the school district attempt to record [the teacher's] private affairs." [The court also discussed other cases that reached similar conclusions-EV.] . . .

While not as widely accepted as the proposition that a public school teacher has no reasonable expectation of privacy in a classroom setting, a public high school coach—like a public high school teacher—is an educator, in the broadest sense of the word. The essence of an educator's role is to prepare students to fulfill their role as responsible citizens in a free society. . . .

From the preceding authority, we can extrapolate that society is not willing to recognize that a public school educator—whether a teacher or a coach—has a reasonable expectation of privacy in his or her instructional communications and activities, regardless of where they occur, because they are always subject to public dissemination and generally exposed to the public view. . . .

Sounds right to me, both as a matter of statutory construction and as a matter of policy. (Of course, I would take the same view about people surreptitiously recording a university professor's lecture.)