Warning: This Conversation May Be Recorded

Dealing a major blow to Florida’s law regarding secretly recording conversations between private individuals, the 11th Circuit Court of Appeals ruled this week that Florida’s secret recording law “does not apply to the recording of all oral communications,” and is “expressly limited to communications ‘uttered by a person exhibiting an expectation that such communication is not subject to interception.’”

In this case, James McDonough secretly recorded a meeting with a Florida police chief in 2014 after McDonough complained about an officer who arrested him on minor charges that were later dismissed. A friend of McDonough’s used his cell phone to secretly record the conversation with the police chief and went on to publish some of the recording online.

Upon learning about the secret recording, the police chief complained to the local state attorney who, in turn, sent a cease and desist letter to McDonough warning that if he recorded any more conversations with the chief, he would be charged with violating Florida law. McDonough sued state attorney Katherine Fernandez Rundle alleging that the threat of prosecution violated his First Amendment right to free speech. The court ruled in the state’s favor. However, on appeal, the appellate court focused on the wording of the state law and found that the police chief did not assert an expectation of privacy and the “government’s threatened prosecution has no basis in the law.”

Now the bigger question will be: does one now have the right in Florida to secretly record any conversation with a public official as long as the conversation is in the performance of his/her official duties? Furthermore, who is considered a public official for purposes of this ruling? To be continued.


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