Is It Really Illegal to Make Undercover Recordings in California?

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I Am Still Not A Lawyer, and I don’t want to go too far down this rabbit hole, but I’ve gotten a fair amount of pushback to my post last night suggesting that the folks who did the undercover Planned Parenthood videos shouldn’t be prosecuted. The pushback takes two forms. First, they’re horrible people who did horrible things. Second, California law requires consent from both parties for any kind of recording, and they broke that law. They should pay for this.

As to the first, I agree that they did horrible things and endangered people. But that’s not what they’re charged with. As to the second, California law (link here) is not as clear-cut as you might think:

If a real live California attorney with specific experience in this area wants to chime in, I’m all ears. For now, though, no matter how much I loathe what they did, I don’t like the idea of prosecuting people for political activities unless their violation of the law is very serious and very clear. This is neither.

Criminal prosecution of secret recordings is rare in California, and I’d just as soon keep it that way. There’s a huge amount of prosecutorial discretion involved in this case, and that’s a recipe for political retaliation against ideas we don’t like. That’s where I get off the train.

UPDATE: Then again, we have this:

The penal code is stricter than the civil code, “but excludes a communication made in a public gathering.” I don’t know if this refers only to public meetings (town halls, protests, etc.) or to any public place, like a restaurant. Probably the former.

This is all kind of strange. Why would there be an “investigatory” exception for lawsuits but not for criminal prosecutions?

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SIX TRUTHS

Reclaiming power from those who abuse it often starts with telling the truth. And in "This Is How Authoritarians Get Defeated," MoJo's Monika Bauerlein unpacks six truths to remember during the homestretch of an election where democracy, truth, and decency are on the line.

Truth #1: The chaos is the point.

Truth #2: Team Reality is bigger than it seems.

Truth #3: Facebook owns this.

Truth #4: When we go to work, we're in the fight.

Truth #5: It's about minority rule.

Truth #6: The only thing that can save us is…us.

Please take a moment to see how all these truths add up, because what happens in the weeks and months ahead will reverberate for at least a generation and we better be prepared.

And if you think journalism like Mother Jones'—that calls it like it is, that will never acquiesce to power, that looks where others don't—can help guide us through this historic, high-stakes moment, and you're able to right now, please help us reach our $350,000 goal by October 31 with a donation today. It's all hands on deck for democracy.

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