Caught on Tape

Every once in a great while we get to peek behind the curtain and see how this town really works. As you might guess, it's not very pretty.

Your cooperation with the foregoing is greatly appreciated.

Very truly yours,

Michael N. Kreitzer, Esq.

New Times Response

April 11, 2005

Dear Mr. Kreitzer:

I write as counsel for New Times and Francisco Alvarado to respond to your April 4, 2005 "Demand to Cease and Desist and for Delivery of the Illegal Tape Recording." My clients have not and are not engaging in any unlawful conduct and thus need not cease and desist. The recording to which you refer is not illegal and my clients have no obligation to deliver it to you. Apparently your letter was written without the benefit of certain Florida and United States Supreme Court decisions that make it clear my clients' conduct, including the possession and use of a recording of Mr. Price's telephone conversation, is entirely lawful, so I am providing citations to those decisions for your convenience.

In your letter, you seem to be saying my clients have no right to use or publish anything about the recorded telephone conversation because it was recorded without Mr. Price's knowledge or consent. First, Mr. Price was not recorded unlawfully. Second, regardless of whether the recording was lawful, New Times and Mr. Alvarado had nothing to do with its creation, obtained it lawfully, and it relates to a matter of public concern. Thus they have a First Amendment right to use the recording, according to the United States Supreme Court. Bartnicki v. Vopper, 532 U.S. 514 (2001).

In your letter, you also complain that Mr. Alvarado recorded his interview with Mr. Price and Mr. Adler. You suggest that your clients were not aware Mr. Alvarado was recording until halfway through the interview (at which time they asked him to stop the recording, which he did), and that my clients have no right to use that recording. The fact that Mr. Alvarado was recording (and taking notes) was quite obvious. Regardless, under Florida law, your clients have no privacy right against the recording. For an oral conversation to be protected from recording without a speaker's consent, the speaker must have an actual subjective expectation of privacy along with a societal recognition that the expectation is reasonable. Florida does not recognize such a right of privacy in someone's office or place of business, and its courts will never hold there is a societal recognition that what Mr. Price and Mr. Adler were saying on the record to a journalist for publication could not be recorded in these circumstances. Some decisions in this regard are State v. Smith, 641 So.2d 849 (Fla. 1994); Cohen Brothers, LLC. v. ME Corp., 872 So.2d 321 (Fla. 3d DCA 2004); and Morningstar v. State, 428 So.2d 220 (Fla. 1983).

Please do not hesitate to contact me if you would like to discuss this further.

Sincerely,

Sanford L. Bohrer, Esq.

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