Robert Barnes: California Just Criminalized Undercover Reporting — if Recorded by Conservative Media

AP File Photo/Bob Levey 

California law long criminalized recording a person without their consent. This law has never before been applied to a journalist engaged in undercover reporting. It has now.

The California Attorney General just issued a criminal complaint against two anti-abortion documentary journalists for their undercover videos about Planned Parenthood activity concerning aborted baby parts. It may be the liberal Attorney General assumes his highly selective choice to only prosecute anti-abortion documentarians will allow journalists to turn a blind eye to the extraordinary application of this law to undercover reporting that is common-place in California. 

Section 632 of the California Criminal code makes it a crime to “intentionally” and “without the consent of all parties” record a conversation if that conversation is a “confidential communication.” A conversation is, by law, not confidential if there is not a reasonable expectation it cannot be overheard. A conversation is, by law, not confidential if it concerns certain kinds of criminal conduct — colloquially known as the “extortion exemption” but also applicable to other crimes, such as violent crimes against a person. 

Under clear California law, the First Amendment protects the publishing of any recording of public interest. Additionally, up until yesterday,

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