Wednesday, August 26, 2015

The Coach, the Locker Room Speeches and Wiretapping

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.

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