Did secret Romney video break the law?

Probably not, but it's a gray area [UPDATED]

Topics: Mitt Romney, Politics, 47 percent, 2012 Elections, ,

Update: Paul R. McAdoo, a Florida attorney specializing in media and First Amendment issues, tells us that he thinks any lawsuit against the recorder be a “very challenging case to bring.” The state’s privacy laws require that the case pass both a subjective and objective test, McAdoo said – subjective, in this case, would be whether Romney believed his speech was going to be private, and objective, whether society recognizes that this is a reasonable expectation. For a presidential candidate attending an event with caterers, donors, and other people in the room who probably have cameras, there would be a “significant hurdle” for any lawsuit.

Since the release of Mitt Romney’s 47 percent video conservative commentators have said the video was illegal because it was recorded without Romney’s knowledge.

As journalists who want to record phone calls know, recording laws vary across state lines. “In general, Florida law prohibits surreptitiously tape-recording conversations,” Alison Steele, the attorney for the Tampa Bay Times on First Amendment issues, told the Times.  ”But for that to apply, the speaker must have the expectation that the communication is not being recorded.”

“The question I think the law would ask is, is it reasonable for a candidate for president to stand at a podium in front of a roomful of people and expect that no one would record anything he said?” Steele said. “I would think that an unreasonable expectation.”

The event was private, and Mitt barred reporters from attending. But Peter Swire, a professor of law at the Ohio State University, also agrees with Steele, writing on ThinkProgress:

“Did Romney have a justified ‘expectation’ that no one would tape his speech before the packed room? In some earlier decade, the chances of a hidden recording device might have seemed remote. Today is different, though. Lots of people now carry video/audio recording devices. We call them ‘smartphones’ and ‘laptops.’ With changing technology, there is a strong argument that Romney assumed the risk that a staffer, guest, or server was recording his speech.”

Either way, it seems unlikely that Romney would bring a lawsuit against the person who recorded the event.

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    (AP Photo/Charles Dharapak)

    The day in politics - 9/18/2012

    Slide 1

    Gov. Mitt Romney speaks to reporters about the secretly taped video from one of his campaign fundraising events in Costa Mesa, Calif., Monday, Sept. 17, 2012.

    (AP Photo/Charlie Neibergall)

    The day in politics - 9/18/2012

    Slide 2

    Rep. Paul Ryan, R- Wis., greets supporters during a campaign stop, Monday, Sept. 17, 2012, in Des Moines, Iowa.

    (AP Photo/Tony Dejak)

    The day in politics - 9/18/2012

    Slide 3

    President Barack Obama walks to the podium before speaking at a campaign event at Schiller Park Monday, Sept. 17, 2012, in Columbus, Ohio.

    (AP Photo/David McNew)

    The day in politics - 9/18/2012

    Slide 4

    Mitt Romney addresses the U.S. Hispanic Chamber of Commerce in Los Angeles, Monday, Sept. 17, 2012.

    (AP Photo/Carolyn Kaster)

    The day in politics - 9/18/2012

    Slide 5

    President Barack Obama boards Air Force One, Monday, Sept. 17, 2012, at Andrews Air Force Base, Md., en route to Ohio.

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Jillian Rayfield is an Assistant News Editor for Salon, focusing on politics. Follow her on Twitter at @jillrayfield or email her at jrayfield@salon.com.

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