Wrote about this before. I was down at the Somervell County annex yesterday to attend the regularly monthly Commissioners Court meeting AND to record it on video. Although I didn’t look in every place I saw the signs that told people not to record past this point, I did get pics of the ones in the hallway by the Commissioners.
Short recap. Trey Brown, Somervell County Attorney, according to several people who told me this, went around with these signs and told people to put them up outside their office. One commissioner I spoke with yesterday said that he was told or asked to do it and he did. I asked him, well, did you ask why or on what legal basis he wanted you to do this, especially since this was not anything that was brought up in a commissioners court meeting, and he said, no, I was asked to do it, so I did. Do you notice what is missing from the paper sign (this commissioner put a plastic sleeve over the sign)? Any type of legal law or justification for violating the constitution.
I had sent Brown an email in the first place which he did not respond to.
I think asked, in the form of a public information request for any documents, etc that discussed those signs. After the date had passed for him to reply to this request, I asked again and he told me “There were no emails, memos or documents of any kind in regards to these recording signs”. I then answered him back and said “Then I assume there is no legal justification for these signs”.
When I saw Danny Chambers yesterday at the commissioners meeting, he told me he would be interested to know what legal justification Brown cited; I don’t know if Chambers knew what Brown was proposing, say, through a personal conversation not memorialized in writing, or Brown just up and decided to do this on his own. But it’s very clear that it was not voted upon, considered by the commissioners and has no legal law cited, so at least to me, can be ignored. Better, take those paper signs DOWN, at least until or unless Brown has some law or rule cited, as well as the penalty. I believe he can’t because trying to stifle this type of activity violates the First Amendment protections of people.
I got back another reply yesterday from Brown. So, after the email in which he replied to my public information request about whether there was any documentation about these signs and a legal justification for same, he said, basically, that he didn’t have to tell me, but also saying “there is legal justification for the signs”. Well, he spent time looking up the OR number but not to cite a reference for telling people their constitutional rights AND the one party consent law in Texas could be violated by him? I then re-sent my original, informal message, on this page above, asking again about the legal basis for the signs in the hall. As a citizen, I believe, particularly since the paper printed signs cite no law, I have a right and he has a duty to show what the reason is and also point to the penalty.
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Now for some background about why I believe this is illegal and not enforceable.
Recording police officers in public
As a rule, if you are not interfering with the ability of a public official to do their job and the recorded official activity is in public view, the recording is protected by the First Amendment. Police and other government officials typically do not have a reasonable expectation of privacy when on duty.
So, three main things about this. First, as I mention, this is illegal to do this, ie put up these types of signs . Texas is a one party recording state. This is not to mention that this is a public building, PAID FOR AND MAINTAINED BY TAXPAYERS and citizens do not lose rights once they enter a building. While I personally think it is rude to record someone without letting them know, it is legal to do that. Maybe the person inside their office in a public space that is worried about one-party recording should not say anything he or she would care was publicly known or better, how about bring up issues in a public commissioners court meeting. That goes, incidentally, for the other offices where this paper sign was stuck on the wall, including elections, HR, attorney, auditor, treasurer, etc.
Summary on Texas Wiretapping
- A person can record a conversation to which you are a party in Texas without violating wiretapping laws, so long as the other party is in a “one party consent” state.
- A person can record a conversation (to which he is not a party) if one of the participants gives him permission.
- A person can record a conversation when, in a public setting, the participants do not have a reasonable expectation of privacy.
- It is almost always illegal to record a phone call or private conversation to which one is not a party, does not have consent from at least one of the parties, and could not naturally overhear the conversation.
Second, as a citizen, can you record public officials in public places? Again, see One-Party Consent. Seems to me, but I am not a lawyer, that if a commissioner or any other person doesn’t want someone to record their conversation, KEEP THE DOOR CLOSED. Otherwise, even if the commissioner says to someone coming in to his or her office with a recording device (could be a phone, for example), “I don’t want you to record me” but the person holding the phone is fine with it, that is consent. Now, I do think it’s rude to do so without letting the other person know, but it doesn’t appear to me the way the law is now that anyone HAS to do that. Has to do also with expectation of privacy and that’s different than, say, recording someone in the bathroom no matter where that bathroom is (intimate area)
1. Are You Involved in the Conversation?
If so, you can give lawful consent to record your own conversation. As a conversation participant, you almost always have the right to record your own conversation.
Compare this to what the ACLU says about the right to film police.
Your rights as a photographer
- When in public spaces where you are lawfully present you have the right to photograph anything that is in plain view. That includes pictures of federal buildings, transportation facilities, and police. Such photography is a form of public oversight over the government and is important in a free society.
If you are stopped or detained for taking photographs
- Always remain polite and never physically resist a police officer.
- If stopped for photography, the right question to ask is, “am I free to go?” If the officer says no, then you are being detained, for which an officer must have reasonable suspicion that you have or are about to commit a crime or are in the process of doing so. Until you ask to leave, your being stopped is considered voluntary under the law and is legal.
- If you are detained, politely ask what crime you are suspected of committing, and remind the officer that taking photographs is your right under the First Amendment and does not constitute reasonable suspicion of criminal activity.
What about recording? This is from NC and astonishingly, it was the Citizens United decision by the Supreme Court that weighs in here
From Washington-Note in the below that there is a difference between merely recording and actively seeking to prevent an official to conduct business in an orderly fashion.
Additionally, certain behaviors can also be restricted in public areas to protect public health and safety, and the orderly conduct of government. When the behavior of an auditor violates an established restriction and interferes with the operation of the government or the ability of other members of the public to use a public facility, officials may remove an auditor from public property where there is an expected right to access. See State v. Blair, 65 Wash. App. 64 (1992).
To justify shutting down an audit, a disruption would have to consist of action more egregious than the simple act of recording public activity. To be lawfully removed, the auditor’s actions must make it impossible for an agency to continue conducting business in an orderly fashion. As discussed in the context of police officers above, profane or abusive language does not create a sufficient disruption by itself. If such language qualifies as a physical threat or “fighting words” (words that inflict injury themselves or tend to incite an immediate breach of the peace) or the act (not just the content) of speaking itself is disruptive to agency business, this may establish sufficient cause to remove members of the public.
This is a screen capture from an RCFP document regarding Texas laws. Note that the cruxes of recordings seem to be that a party can (and I assume this would be after the fact) file a civil lawsuit against someone whose conversations, etc were disclosed in violation of the law (which brings us back to ONE PARTY CONSENT and PUBLIC AREAS.
Third, what is the penalty for recording? Since it isn’t actually against the law and there is no law cited on the sign, maybe a better question would be “What is the pretended penalty for recording”? What would happen if, for example, I walk into a commissioners office where the door is open with a recording phone. Will the commissioner call the sheriff’s office to have me arrested? On what charge? Could not be trespassing, heck, any person who has a door open that is in a public office basically expects that someone might walk in; otherwise, they’d close their door, right? Who knows, though, because there is NOTHING on those signs that cite a law or indicate a penalty. Compare that to the sign outside the building about firearms which cites the law. Maybe the commissioners court does not care about lawsuits, but given that when (and they would) they lose the lawsuit, the money to pay out for it would come from the Somervell County taxpayers, I think we ALL should care.
