Idaho State Police warned media outlet that publishing its story might violate Idaho law

More than a week before InvestigateWest published a story about a secret recording of a conversation between Idaho Rep. Heather Scott and lobbyist Maria Nate, we reached out to both women to request interviews.

A copy of the recording had been provided to InvestigateWest by a third party who shared it on the condition that they not be identified. The nearly two-hour conversation begins with Nate berating Scott for her plans to support Idaho’s speaker of the House but moves on to discuss everything from the problems with Young Americans for Liberty to whether God prefers men to women in leadership.

Scott said she would “maybe” agree to be interviewed if we waited a few days, saying that the context she could provide was crucial.

Instead, InvestigateWest later got a call from Idaho State Police Detective Sean Walker, who said he believed the recording may have been made illegally. Then, he read an Idaho state law suggesting that if InvestigateWest wrote about the contents of a recording we knew had been illegally made, it could violate Idaho’s communications security laws, a crime punishable by up to five years in state prison.

“You got a nice little newspaper here. It’d be terrible if something were to happen to it,” joked Bob Corn-Revere, chief counsel at the Foundation for Individual Rights and Expression, referencing the way a mafia thug might use veiled threats to shake down a business.

InvestigateWest is publishing the story anyway. Multiple experts told us that court precedent clearly shows we are protected by the First Amendment.

“When law enforcement officers threaten journalists with potential prosecution, that still has a chilling effect on journalists,” said Seth Stern, director of advocacy for the Freedom of the Press Foundation, a nonprofit that advocates for journalists and whistle-blowers. “Law enforcement officers — before they speak about First Amendment law and before they allude to a prospect as serious as a journalist being held criminally liable — should do their research and make sure that what they’re implying … has not been expressly rejected by the United States Supreme Court.”

DON’T SUE THE MESSENGER

Secret recordings happen all the time in Idaho: Unlike in neighboring Washington, most anyone in Idaho talking to somebody else can legally make an audio recording of their conversation.

But that still generally requires at least one person in that conversation to have made that recording. You can’t plant a bug in the governor’s offices or dangle a listening device from the ceiling of the Idaho Capitol.

None of the people involved in the conversation in the recording given to InvestigateWest, Walker said, had admitted to making the recording, making it potentially illegal. But even if it were, that doesn’t mean it’s illegal for InvestigateWest to write about it.

Idaho’s law, which is nearly identical to federal wiretapping laws, does appear to ban anyone from disclosing contents of an illegally obtained recording — though there is case law protecting journalists.

“The statute is not unconstitutional on its face,” Corn-Revere said. “The question is whether or not it would be unconstitutional as applied to this set of facts.”

A 2001 Supreme Court case, Bartnicki v. Vopper, provides the key test.

In that case, “Someone sent what everyone assumed was an illegal recording to a news organization and the news organizations published it,” Corn-Revere said. “But the fact that they were aware that probably wasn’t legal does not affect their First Amendment right to publish it. They weren’t the ones who solicited or did the recording.”

Even if a recording was made illegally, an uninvolved journalist sharing that information is almost always protected by the First Amendment.

There are caveats: It has to be a matter of public concern. A school board union dispute qualifies. A sex tape of wrestler Hulk Hogan doesn’t.

And at times, politicians have been held to a higher standard than journalists: Former U.S. Rep. Jim McDermott, D-Wash., passed along an illegally intercepted recording of former House Speaker Newt Gingrich to multiple media outlets. It was clearly a matter of public concern and he hadn’t made the recording. But the court found he didn’t have First Amendment protections.

“There was a specific duty for a member of Congress, who in receiving information that he knew was part of his congressional responsibilities, didn’t have the same ability to disclose it in the same way that a journalist would,” Corn-Revere said.

Even ironclad protections don’t make journalists immune to public officials who don’t know or don’t care about constitutional protections. Last year, police in Kansas raided the Marion County Record newsroom for accessing openly available DUI records on a public website.

“Something like that would have sounded absurd, probably 10 years ago,” Stern says. “Judges, and police officers and government officials seem to be less aware of or less concerned with press freedom rights than they previously have been.”

REASONABLE EXPECTATIONS

At this point, InvestigateWest doesn’t know whether the recording was illegal or not.

The source who leaked the recording to InvestigateWest made it clear that they weren’t the ones who recorded it, but emphasized that multiple witnesses could clearly overhear the loud conversation coming from Scott’s office.

The details matter when it comes to someone’s “reasonable expectation of privacy.”

For example, in 1994, the Pennsylvania Supreme Court ruled that a woman who stood in a hallway of a divided home and secretly taped the loud and abusive language from the neighbors next door didn’t violate their neighbors’ right to privacy.

Once the conversations were loud enough to be heard “through a dividing wall in their home,” the court concluded, those being taped “lost whatever expectation of privacy they had that their secret discussions and conversations would not be overheard.”

But it’s a gray area, one that can depend on the nature of exactly how thin the walls are and how quietly a reasonable person would believe they would have to whisper to avoid being overheard.

“In general, if you’re in a position to hear something in a public space, anyone who happens to be in that space can hear it, then you also have a right to record it,” Corn-Revere says. “If someone is in a public space and speaking, you can’t say that they have a reasonable expectation of privacy. Through a wall? That’s more complicated.”

Recording devices are everywhere in the state Capitol, including devices set to simply record everyone who enters an office. In 2018, Rep. Brent Crane, R-Nampa, who owns a security company, put a hidden video camera in his office in response to the wave of lawmakers who had faced sexual assault and harassment accusations. It did not record audio.

Maria Nate, in particular, is well aware of the potential for being recorded in the Idaho Legislature. In 2016, media outlets reported that Maria’s husband, then-Rep. Ron Nate, R-Rexburg, had secretly recorded his conversation with then-Sen. Brent Hill. Legislative leaders condemned the behavior and suggested that, if it wasn’t grounds for an ethics investigation, it was certainly a violation of trust.

“Being a legislator is like being in a marriage,” Rep. Mike Moyle, now speaker of the House, told The Post Register newspaper at the time. “If you lose trust, it’s over.”

InvestigateWest (invw.org) is an independent news nonprofit dedicated to investigative journalism in the Pacific Northwest. A Report for America corps member, Daniel Walters covers democracy and extremism across the region. He can be reached at daniel@invw.org .