Did secret Romney video break the law?

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

By Jillian Rayfield

Published September 19, 2012 7:10PM (EDT)

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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Jillian Rayfield

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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2012 Elections 47 Percent Mitt Romney Politics