This post examines
a recent opinion from the Court of Appeals of Texas – El Paso: Long v. State, 2015 WL 3984950 (2015). The court begins its opinion by explaining
that the
issue in this case
of first impression is whether the following incidents constitute crimes under
Texas's criminal wiretap statute: the surreptitious recording -- later
disclosed to a third party -- of a public high school basketball coach's
half-time and post-game speeches to his team in the visiting locker room of a
public high school. In essence, a person violates the wiretap statute by
intentionally recording, or intentionally disclosing the contents of, a `wire,
oral, or electronic communication.’ See Texas Penal Code §16.02(b)(1), (b)(2). . . . For
purposes of the wiretap statute, an `oral communication’ is one `uttered by a
person exhibiting an expectation that the communication is not subject
to interception under circumstances justifying that expectation.’ [Emphasis
added.] . . . The threshold question, as framed by the parties, is whether the
coach had a reasonable expectation of privacy under the circumstances.
Long v. State, supra
(emphasis in the original).
The Court of Appeals then outlines how this prosecution
arose:
Lelon `Skip’ Townsend was hired in 2011
to coach the Argyle High School girls' basketball team. Townsend was, in his
own words, an intense coach, who preached discipline and accountability. Not
surprisingly, reports of Townsend berating and belittling players in practice
began surfacing the following school year. Long, a member of the Argyle
School Board, was concerned about the reports, and she grew increasingly
concerned when parents began contacting her to complain of Townsend's treatment
of their children. Long's daughter had also been a member of the basketball
team before quitting after the first regular season game.
On February 7, 2012, the Argyle High
School girls' basketball team traveled to Sanger to play the Sanger High School
girls' basketball team for the district title. Long's daughter attended the
game as a spectator and, with the assistance of a Sanger student, obtained
access to the visiting locker room before halftime for the purpose of
surreptitiously videotaping Townsend. Long's daughter taped an iPhone to the
inside of a locker and set it to record. The iPhone captured an audio and video
recording of Townsend's half-time speech and an audio recording of
Townsend's post-game speech.
In March 2012, Long showed the
recordings, which were on her computer at work, to her assistant principal.
Later that month, Long mailed the recordings to the other members of
Argyle School Board, and the recordings were distributed to the Board on the
night of the meeting to consider Townsend's probationary contract. A few days
later, the Superintendent of the Argyle Independent School District turned over
the recordings to the police. A detective with the Sanger Police Department
eventually traced the recordings to Long and her daughter.
Long v. State, supra.
The court goes on to explain that Long was
charged in a two-count indictment with
. . . violating Sections 16.01(b)(1)
and (b)(2) of the Texas Penal Code. Section 16.02(b)(1) provides that a person
commits an offense if she: `intentionally intercepts, endeavors to intercept,
or procures another person to intercept or endeavor to intercept a wire, oral,
or electronic communication. . . . Section 16.02(b)(2) makes it a crime
to: `intentionally disclose[ ] or endeavor[ ] to disclose to another person the
contents of a wire, oral, or electronic communication if the person knows or
has reason to know the information was obtained through the interception of a
wire, oral, or electronic communication in violating of. . . .
The State alleged Long violated Section
16.02(b)(1) by procuring her daughter to record Townsend's speeches and Section
16.02(b)(2) by showing the recording to her assistant principal. The jury
agreed, finding Long guilty. In accordance with the parties' plea-bargain
agreement, the trial court sentenced Long to five years' confinement, probated
for three years, and assessed a $1,000.00 fine.
Long v. State, supra.
Long made several arguments on appeal, but the Court of
Appeals found that they all were based on “the premise that she committed no
crime because, as a matter of law, Townsend `had no justifiable expectation
that only his students would acquire the contents of his communication.’” Long v. State, supra. It therefore focused its analysis on that
issue. More precisely, Long argued that
Townsend had no reasonable expectation
of privacy, nor a justifiable expectation that his communication was not
subject to interception, because his lecture to the team was public speech,
which is subject to lawful recording regardless of where it occurs.
Long v. State, supra.
The Court of Appeals began its analysis of this issue by
outlining the applicable law:
It is beyond dispute that the Texas
criminal wiretap statute, Section 16.02, is substantially similar to the
federal one on which it is modeled, the Wiretap Act, codified as 18 U.S.Code §§ 2510–2521. . .. It is also beyond dispute that, in
interpreting Section 16.02, we may rely on decisions from other state
courts and federal courts construing the Wiretap Act. . . .
The legislative history of the Wiretap
Act reveals that Congress's intent was to protect persons engaged in oral
communications under circumstances justifying an expectation of privacy. U.S.
v. McIntyre, 582 F.2d 1221 (U.S. Court of Appeals for the 9th Circuit 1978).
Thus, to determine whether a person had a reasonable expectation of privacy in
his speech, we employ a two-prong test: (1) did the person exhibit a subjective
expectation of privacy; and (2), if so, is that subjective expectation one
society is willing to recognize as reasonable. Smith v. Maryland, 442 U.S. 735 (1979); Villarreal v. State, 935 S.W.2d 134 (Texas Court of Criminal Appeals 1996). That determination is made on a case-by-case basis
and is highly fact determinative. Given the great variety of work environments
in the public sector, the question whether an employee has a reasonable
expectation of privacy must be addressed on a case-by-case basis. O'Connor v. Ortega, 480 U.S. 709 (1987).
Long v. State, supra.
The Court of Appeals began its analysis of the issue in the
case by explaining that “[b]ased on the application of existing authority to
the evidence adduced at trial, we conclude that Townsend did not have a
reasonable expectation of privacy in his half-time and post-game speeches to
his players.” Long v. State, supra. It then went on to explain that
[i]t is widely accepted that a public
school teacher has no reasonable expectation of privacy in a classroom
setting. See Roberts v. Houston Indep. Sch. Dist., 788 S.W.2d
107 (Texas Court of Appeals –Houston 1990, writ denied). . . . In Roberts,
the court held that a public school teacher had no legal complaint against
a school district for audiotaping and videotaping her classroom performance
because a teacher has no reasonable expectation of privacy while teaching in a
public classroom. Roberts, supra.
There, the school district's assessment
team videotaped a teacher's classroom performance, with the teacher's knowledge
but over her objection Roberts, supra. After reviewing the videotape, the assessment
team recommended that the school district terminate the teacher for
incompetence and inefficiency. Roberts,
supra. The school district notified
the teacher of her impending termination. Roberts, supra.
The teacher contested the proposed
termination, and the school board held a hearing and considered evidence,
including excerpts from the videotapes. Roberts, supra. The teacher
sued for invasion of privacy. Roberts,
supra. The court rejected her claim
on the basis that she had not demonstrated `that she had a “reasonable
expectation of privacy” in her public classroom.’ Roberts, supra. In reaching
this conclusion, the court reasoned that `the activity of teaching in a public
classroom does not fall within the expected zone of privacy” because “[t]here
is no invasion of the right of privacy when one's movements are exposed to
public views generally.’ Roberts, supra.
The court noted that the teacher `was videotaped in a public classroom,
in full view of her students, faculty members, and administrators [and] [a]t no
point, did the school district attempt to record [the teacher's] private
affairs.’ Roberts, supra.
In Plock v. Board of Education, 545 F.Supp. 2d 755 (U.S. District Court for the Northern District of Illinois 2007), the federal
district court held that special education teachers could not enjoin the school
district from installing audio/visual recording equipment in their classrooms
because the teachers had no reasonable expectation of privacy in communications
in their classrooms. Plock v. Board
of Education, supra.
There, the teachers claimed that the
proposed audio monitoring of their classrooms through audio/visual equipment
would violate their Fourth Amendment right to be free unreasonable searches and
seizure. Plock v. Board of
Education, supra. The court rejected the teachers' claim on the basis that
any expectation of privacy in communications taking place in classrooms that are
open to the public was inherently unreasonable because the classrooms were not
solely reserved for the teachers' exclusive, private use. Plock v. Board of Education, supra.
In reaching this conclusion, the court
reasoned that communications in a public classroom are not private because `[w]hat
is said and done in a public classroom is not merely liable to being overheard
and repeated, but is likely to be overheard and repeated.’ Plock v. Board of Education, supra. The
court did acknowledge, however, that `a teacher's personal office space,’
including his or her desk and locked file cabinets, `could conceivably be
reserved for the teacher's exclusive use, giving rise to an expectation of
privacy which society is willing to recognize as reasonable.’ Plock v. Board of Education, supra.
Long v. State, supra.
The court then took up the issue involved in this case,
noting that
[a]lthough the duties of a coach are
not comparable to that of the typical classroom teacher, no one could
reasonably deny that some of the duties of a coach involve a type of
teaching. Theiler v. Ventura Cnty. Cmty. Coll. Dist., 198
Cal.App.4th 852, 130 Cal.Rptr.3d 273 (California Court of Appeals 2011). . . . A
public high school coach educates students-athletes in a myriad of ways.
Principally, a coach provides instruction to help his players reach a certain
performance standard in a chosen activity. . . .
Secondarily, a coach teaches his
players to develop self-discipline, an admirable trait and one necessary for
success in most endeavors in life, including academics. . . . academics. See
Lowery v. Euverard, 497 F.3d 584 (U.S. Court of Appeals for the 6thCircuit 2007) (recognizing that students participating in sports develop
discipline, and that “[a]thletic programs may also produce long-term benefits
by distilling positive character traits in the players[ ]”). . . .
Long v. State, supra.
The Court of Appeals went on to apply these principles to
the facts in this case, explaining that
From the preceding authority, we can
extrapolate that society is not willing to recognize that a public school
educator—whether a teacher or a coach—has a reasonable expectation of privacy
in his or her instructional communications and activities, regardless of where
they occur, because they are always subject to public dissemination and
generally exposed to the public view. Here, there is no doubt that Townsend was
an educator helping his pupils maximize performance and develop discipline. At
trial, Townsend acknowledged his role as an educator:
[DEFENSE COUNSEL]: Even though it has
a—it can be a private dressing room during the times that you just
described when the girls are changing clothes or going to the bathroom back in
the bathroom part—or it can be used as a space for you to be an educator; is
that correct?
[TOWNSEND]: Yes, sir.
[DEFENSE COUNSEL]: I mean, it's a—it's
a—it's a convenient space for you, who are supposed to be an educator, to meet
with your—the young ladies that are in a public school where you're a public
teacher; is that right?
[TOWNSEND]: That's correct.
[DEFENSE COUNSEL]: It's a classroom
basically; would you agree?
[TOWNSEND]: Sometimes it is, yes.
Long v. State, supra.
The court also pointed out that
Townsend also identified for the jury the lessons he strived
to impart on his players:
`I expect my kids to work hard. I
expect my kids to be disciplined. I want a disciplined team, which just means
that I want the kids to play together, to do what the coaches ask them to do,
to buy into what we're doing, and just play as hard as they can.
And, you know—and I know winning is
important. I've never been in a gym that there wasn't a scoreboard up there, so
I know winning's—the score means something, but I—one of my—my style has always
been this, is winning takes care of itself when you—when you develop kids who
have discipline, who are determined, have determination, they dedicate
theirselves, and they have a good character.’
`So we always try to do things that
develop character in the kids and a good work ethic and accountability. Those
are the things that we look for on a team. And something that's always been my
trademark in any of my teams is we're—we're able to accomplish that, those
things, whether winning or not.’
Just as important, Townsend was well aware
that his communications to his players were subject to public dissemination. In
the audio recording of his speech to the team following the loss to Sanger,
Townsend can be heard telling the players:
`And you know, I know the deal. You go
home and you tell your parents, “Well, uh that's what they told me to do; I . .
. screwed up but that's what they told
me to do.” And that's easy to do coming from you to them, you know, when
there's not me there to say, I don't believe that is what I told you to do.’
It's kinda easy to do that, you know. If that, if that's how you live, that's
that's—go ahead and live like that.’
Accordingly, we conclude that society
is not willing to recognize as reasonable any expectation of privacy in
half-time and post-game instructional communications uttered by a public high
school basketball coach to his team in the visiting locker room of a public
high school.
Long v. State, supra.
The court then went on to hold that
[b]ecause society is not willing to
recognize as reasonable any expectation of privacy in half-time and post-game
instructional communications uttered by a public high school basketball coach
to his players in the visiting locker room of a public high school, Townsend
did not have justifiable expectation that only they would acquire the contents
of his communications. Consequently, the recordings in dispute are not `oral
communications’ covered by Section 16.02 of the Texas Penal Code.
Long's first and third issues are
sustained. Given our disposition of these issues, we need not address her
remaining issues. . . .
The trial court's judgment is reversed,
and we render judgment acquitting Long of the charged offense.
Long v. State, supra.
You can, if you are interested, read more about this case in
the news story you can find here.
No comments:
Post a Comment