RTDNA opposes California 'confidential communication' bill

June 22, 2016 02:45

A bill currently being debated in the California legislature would criminalize the disclosure or distribution of confidential information obtained by eavesdropping or recording, without the consent of all parties involved, regardless of whether the person disclosing the information was involved in obtaining it.

RTDNA opposes the bill, known as Assembly Bill 1671, on the grounds that it would infringe on the rights of journalists and have a chilling effect on reporting issues of public interest. The Association has written a letter to the bills author, Assembly Member Jimmy Gomez, explaining why the bill would affect journalists and would be unlikely to survive court scrutiny.

Existing California law already prohibits eavesdropping or recording confidential communication, but the bill is an attempt to penalize anyone who would "aid and abet" the disclosure of that information, which would potential include journalists attempting to report on matters of public interest. The letter points out the bill runs counter to multiple decisions by courts and the state and federal level that protect journalists' First Amendment rights, and restrict the publication of truthful information lawfully obtained by news outlets.

The full letter is below:

June 23, 2016
Assembly Member Jimmy Gomez
State Capitol
Sacramento, CA  95814
RE:      A.B. 1671 (as amended on May 18, 2016)
Dear Assembly Member Gomez,
            On behalf of the Radio Television Digital News Association (RTDNA), I am writing to voice our members’ opposition to Assembly Bill 1671, as most recently amended.  RTDNA is the world’s largest professional organization devoted exclusively to electronic journalism, and our members include local and network news executives, news directors, producers, reporters, photographers, editors, multimedia journalists and digital news professionals in broadcasting, cable and digital media, as well as journalism educators and students.
            RTDNA believes the bill is constitutionally infirm and would serve only to undermine journalists’ ability to disseminate newsworthy information to the public.   
            As you know, A.B. 1671 makes it a crime for anyone to disclose or distribute the contents of a “confidential communication” with a health care provider if that confidential communication was obtained in violation of existing law (i.e., without the consent of all parties by use of a recording or amplifying device).  Moreover, the bill makes it illegal to “aid or abet” anyone who discloses or distributes the content of such a communication if he or she facilitates or encourages the disclosure by advice, encouragement, instigation or other aid, with knowledge that it would be unlawful. 
            As a preliminary matter, because the bill singles out only some speech for punishment and exempts other speech, it represents content-based regulation of speech, and thus would be subject to a strict scrutiny analysis by the courts it is unlikely to survive. With respect to content-based restrictions on speech, the government must (1) articulate a legitimate and compelling state interest for the restriction; (2) prove that the restriction actually serves that interest and is “necessary” to do so; and (3) demonstrate that the restriction is the least restrictive means to achieve that interest.  Neither protection of privacy or protecting individuals from emotional distress alone can satisfy that high bar. See Simon & Schuster, Inc. v. Members of N.Y. State Crime Victims Bd., 502 U.S. 105, 116 (1991). 
            As a very practical matter, however, the bill potentially would have a chilling effect on journalists’ ability to gather and disseminate newsworthy information, as is their fundamental role in our democratic society.  The Supreme Court has, on multiple occasions, recognized this bedrock First Amendment principle and addressed the issue directly.  The Court has reasoned that governmental attempts to restrict the publication of truthful information lawfully obtained by the news outlet "seldom can satisfy constitutional standards," underscoring that “a free press cannot be made to rely solely upon the sufferance of government to supply it with information.” Smith v. Daily Mail, 443 U.S. 97 (1979).  More recently, in Bartnicki v. Vopper, 532 U.S. 514 (2001), the Court held that the First Amendment protects the disclosure of illegally intercepted communications by parties who did not participate in the illegal interception. "In this case, privacy concerns give way when balanced against the interest in publishing matters of public importance," wrote Justice John Paul Stevens. "[A] stranger's illegal conduct does not suffice to remove the First Amendment shield from speech about a matter of public concern."
            By attempting to criminalize the distribution or disclosure of confidential information that the news media has lawfully obtained, the bill contradicts established this Supreme Court precedent and could have a chilling effect on any reporting about matters of public importance that involve health care institutions or providers, such as abuse, malpractice, or other irregularities. For these reasons, RTDNA respectfully opposes A.B. 1671.
Respectfully submitted,

Mike Cavender
Executive Director, RTDNA