Question: I’ve got a professor who says a bunch of crazy things in class. It’s super offensive, not to mention borderline racist, and I wanted to record him. I haven’t decided what I’d do with the video, but I’ve seen a lot of hidden camera footage on YouTube, so I’m wondering if it’s legal to record him. I’ve heard that I can’t record someone without their permission because of wiretapping laws. Can I record a professor and put him on YouTube if he’s saying racist stuff?
-Anonymous,
Davis, CA
Answer:
By filming your professor, you would run into more copyright problems than privacy problems.
First, some background on the right to record.
As you hopefully know, free speech is protected by the California and U.S. Constitutions. The Constitution’s First Amendment — or as I like to call it, the Best Amendment — protects your freedom to speak by restricting the government’s ability to impose limits on speech.
Part of our ability to speak comes from our ability to gather information. No one disputes that there’s a free speech right to report on a war protest or publishing an article about a city council meeting. But it’s hard for NBC to report on a war protest if they can’t attend the protest or film the protesters. It’s equally difficult for the Davis Enterprise to accurately quote City Council members if its reporters are banned from recording council meetings. Or as the Seventh Circuit Court of Appeals said in ACLU v. Alvarez, “The right to publish or broadcast an audio or audiovisual recording would be insecure, or largely ineffective, if the antecedent act of making the recording is wholly unprotected.”
Filming a protest and recording a council meeting are protected by the First Amendment.
Let’s turn to the professor example.
On a public university campus, most places are public, and filming would be fine as long as it does not interfere with the purpose of the forum. Think of the Quad, the eating areas of the CoHo or a student lounge. In those areas, you’re mostly free to film, just like you are free to pass out flyers or speak to people. People speaking in public areas have very little expectation of privacy, so most privacy laws are irrelevant. And the government interest in restricting speech in a public area is dwarfed by the public’s interest in maintaining the right to free speech.
But in a classroom, there is a strong government interest in making sure class is not interrupted. The University’s powers to limit speech become stronger, although the privacy considerations are still irrelevant, since the professor is making statements to a large audience.
And even in classrooms, restrictions on free speech must comply with the First Amendment, which means those restrictions must be clearly defined. As the Supreme Court said in Grayned v. City of Rockford, a rule complies with the First Amendment only if it provides “fair notice to those to whom (it) is directed.” Your professor might have some rule in the syllabus that says no one can film his lecture. That would be a clear cut example of a “clearly defined” rule. Vaguer rules, like university-wide bans on “harassment” or “intimidation,” which a sensitive professor might try to use against you, would probably not ban videorecording. There’s actually a case on appeal right now, O’Brien v. Welty, that will decide whether a law banning “harassment” and “intimidation” can be used to stop students from recording professors.
Putting aside any restrictions in the student conduct code or the professor’s syllabus, there is still a possible copyright problem. The University might argue that it owns the copyrights to lectures delivered by professors in the scope of their regular teaching duties. They could try to sue you just as if you had been caught bootlegging a Broadway production of Cats or Wicked.
But unlike pirating Cats and Wicked, there’s a fair use argument here — and fair use is a defense to claims of copyright infringement. You are attempting to record something newsworthy and use it for commentary. You are not trying to compete with the professor, and you are not using his entire lecture — both of which make it more likely that this would qualify as fair use. For the same reasons Jon Stewart and Stephen Colbert can broadcast brief clips of the O’Reilly Factor without the permission of Fox News, you could argue that you used only as much of the lecture as you needed in order to make your point.
In the end, it’s a close call, and it depends in part on what rules, if any, your professor put in the syllabus.
Daniel is a Sacramento attorney, former Davis City Council candidate and graduate of UC Davis School of Law. He’ll answer questions sent to him at governorwatts@gmail.com or tweeted to @governorwatts.
