By Dan Kennedy
The sheriff’s office in McCurtain County, Oklahoma, has responded with the alacrity you’d hope for when wrongdoing is exposed. Oh, wait. They’re going to charge the journalist who recorded their nausea-inducing tirade of racism and violence with a felony for taping county officials without their knowledge. The Associated Press passes along a statement made by the sheriff:
There is and has been an ongoing investigation into multiple, significant violation(s) of the Oklahoma Security of Communications Act … which states that it is illegal to secretly record a conversation in which you are not involved and do not have the consent of at least one of the involved parties.
The AP also quotes a local journalism professor who says that the recording would be illegal only if the officials had a reasonable expectation of privacy.
Now, I have to say that I’m confused. Laws regarding audio recordings generally define “one party” as “either party.” The journalist, Bruce Willingham of the McCurtain Gazette-News, obviously gave his consent, and that would normally be regarded as sufficient. Let me return to the guide published by the Reporters Committee for Freedom of the Press, which I referred to in my earlier item.
In Oklahoma, “An individual who is a party to an in-person, telephone or electronic conversation, or who has the consent of one of the parties to the conversation, can lawfully record it or disclose its contents, unless the person is doing so for the purpose of committing a criminal or tortious act.” And: “The consent of at least one party to a conversation is required to record any oral communication.”
Obviously there’s more to it than that, and it’s possible that Willingham ran afoul of the law by leaving the room rather than participating in a “conversation.” (Then again, he was kicked out.) But contrast that with what the guide says about our state: “Massachusetts prohibits the recording, interception, use or disclosure of any conversation, whether in person or over the telephone, without the permission of all the parties.” If you are old enough and obsessive enough, you may recall that Linda Tripp was in the clear when she secretly recorded Monica Lewinsky while they were in Virginia, which, like Oklahoma, is a one-party state — but she broke the law when she recorded Lewinsky in Maryland, a two-party state.
Anyway, it’s good to see that McCurtain county officials have their priorities straight by going after the press rather than dealing with their own hateful dysfunction.
One more thing: The Washington Post story I referenced earlier described Willingham as a reporter for the Gazette-News. And so he is. But it turns out that he’s also the publisher. Probably the delivery guy and custodian as well. Anyway, he’s performed a tremendous public service, and he ought to be considered a candidate for a 2024 Pulitzer Prize.