The now-infamous video of Mitt Romney speaking to donors at a private fundraising event in the Sunshine State back a few months ago may have been recorded in violation of Florida law, Tony Romm of Politico reported this afternoon:
The rules in Florida — where Romney spoke at a private fundraiser — generally require consent from both the person recording and the person being recorded when one of the parties has a reasonable expectation of privacy, experts told POLITICO.
But the question is whether Romney can claim that expectation, partly because fundraising events are about influencing supporters and spreading word about his candidacy.
"I think there are good arguments both ways under the statute," said Peter Swire, a professor at Ohio State University who led up privacy work during the Clinton administration. "Both sides can write a good brief now."
Given the media's thirst for furthering its "Romney can't relate to Joe Sixpack" narrative, I don't expect the network media to give any attention to this angle on the story, although it would be a fascinating issue to explore.
As Romm reports, the question of a politician's "expectation of privacy" at a private fundraiser in a private residence is salient here:
In Romney's case, an unidentified source attended a $50,000 per plate reception at the private residence of equity manager Marc Leder in Boca Raton, Fla. — a May campaign event from which journalists were barred.
Florida law, though, generally requires permission to record from all parties. The rules include additional prohibitions against hidden cameras, but it's tailored to certain circumstance, such as when "the person is privately exposing the body," according to the Reporters Committee for Freedom of the Press.
If prosecuted by the state, the punishments include fines and possible jail time. According to the Citizen Media Law Center, a project of Harvard’s Berkman Center for Law and Society, violations also "can expose you to a civil lawsuit for damages by an injured party."
According to Swire, the person behind the camera would have two main defenses. "The first defense is that Gov. Romney could not expect privacy in an event such as that," he said. "The second defense is whether this counts as a public communication at a public meeting."
That former distinction could be the toughest to determine. On one hand, "a candidate would say he has a reasonable expectation if he's speaking only to the group there," said Gregg Leslie, legal defense director at the Reporters Committee for Freedom of the Press.
But Romney is speaking with the intent to influence donors, who are supposed to "sway their friends" and build support for his candidacy, said Leslie. In a sense, he's "expected to talk beyond the group," and it could be argued there's "no expectation of privacy" in a case of a candidate seeking the country's highest office.
However, it's largely circumstantial, said Jeff Hermes, director of the Citizen Media Law Project. It depends on who's present, and the "understanding [among] the people who are there." In short, he said: "It's really, really tough to tell in the abstract."
In fairness, President Obama's "cling to guns and religion" remarks in April 2008 came at a San Francisco fundraiser, and California is, like Florida, a two-party consent state, meaning that the recording of those remarks may technically have been illegal under California law.
