When U.S. Rep. Andy Harris told a student reporter to stop recording him on Tuesday, he claimed she was violating Maryland law. He was wrong.
Cat Murphy, a graduate student working for the University of Maryland’s Capital News Service, was one of several journalists asking questions and openly recording Harris’ responses during a post-debate press briefing in Cambridge, Maryland, on Oct. 13.
Harris singled Murphy out, however, claiming she didn’t have his permission to record under Maryland’s “two-party” consent law. When she stood her ground and asked him a question about Iran, he called for a police officer and threatened to refer her for prosecution before ultimately walking away. (He later defended his actions.)
“I was focused on doing my job and asking my questions that I wanted answers to,” Murphy told CNN.
Murphy did her job, and she did it well.
The exchange is a reminder, though, that student journalists will sometimes be told — confidently and incorrectly — that they’re doing something illegal. That’s why it’s important to know your rights before going into the field to report, and the Student Press Law Center is here to help.
Here are a few things to know about recording laws, but be sure to contact our free Legal Hotline if you have questions.
One-party vs. all-party consent
The federal government and every state — except Vermont — has its own law governing who can record private conversations (whether in-person, over the phone or through electronic platforms), and these laws typically fall into two categories:
- One-party consent: Only one person in the conversation has to agree to the recording. If you’re part of the conversation, that’s enough, and you can record the conversation without anyone else’s permission or knowledge. (Of course, this only addresses the legality, and your newsroom ethics policy may still require you to let others know you’re recording.) Federal law and most states follow this rule, so it’s the baseline across the U.S.
- All-party consent: Everyone in a private conversation has to agree. About a dozen states follow this rule, including Maryland. It’s often called “two-party” consent, but the rule actually covers all parties, whether that’s two people or 10.
A few states use different rules for phone calls and in-person conversations, so it’s important to check your state law for each situation. The Reporters Committee for Freedom of the Press’ Reporter’s Recording Guide is the go-to resource to do so. (Full disclosure, I led an update of that guide about five years ago.)
Phone calls across state lines make the analysis more complicated. If you’re in a one-party state and your source is in an all-party state, the safest assumption is that the stricter rule applies.
Lastly, your college or school may also have its own rules that are stricter than state law, so be sure to consult those for any on-campus recordings.
Public settings are generally safe to record
Even in states requiring all-party consent, recording laws generally protect only conversations where people have a reasonable expectation of privacy. This is true in Maryland, and it’s the key point Harris got wrong.
A public official answering questions from multiple reporters at a press availability cannot reasonably expect that his words will stay private.
This same logic typically applies to:
- News conferences and briefings
- Speeches, rallies, debates and other public events
- Open meetings of public bodies, like school boards, city councils and student government (many states’ open-meetings laws expressly allow recording)
- Conversations in public places that others can easily overhear
A press briefing held for reporters is about as far from private as a conversation gets, but it’s not always as clear what is public and what is private. When in doubt, get consent.
“Public” also doesn’t mean conversations in every space on campus or in a government building are fair game. For example, a closed-door meeting or a private office may be different. (Perhaps not so coincidentally, a Salisbury University student pleaded guilty in 2019 to violating Maryland’s recording law when he live streamed a private meeting with Harris’ staff in their office.)
There are a few state laws that don’t explicitly make a distinction between private and public conversations, so the rules are less clear. Again, it’s best to consult the RCFP guide to understand the parameters in your state.
When the First Amendment applies
Federal courts across much of the country have held that the First Amendment protects your right to record government officials doing their jobs in public. Courts have also blocked states from using recording laws against people who openly record police in public, where no one expects privacy.
That protection is not absolute, however. The First Amendment restricts the government, not private event hosts. It also allows reasonable rules about time, place and manner, like asking you to step back. And it doesn’t give you a right to secretly record private conversations.
Some practical tips
Every situation is different, but here are a few suggestions on how to be prepared:
- Know your state’s laws and campus rules before you need them. Murphy’s handling of this situation shows why it matters.
- Be transparent with sources when possible. For example: “Mind if I record so I get your quotes right?” Asking builds trust, and it satisfies the consent requirements in every state. It’s even better if you get their answer in the recording.
- If confronted, stay calm. Just like Murphy did, you can politely respond that it’s a public event and you’re entitled to record. Murphy attempted to redirect the conversation by asking a substantive question. If it escalates further, it’s usually best to walk away.
- Don’t hand over your phone. Officials and private security cannot seize your device or force you to delete files absent extraordinary circumstances (e.g., evidence is about to be destroyed or someone is in danger).
- If police get involved, comply with their orders but explain you believe they are unlawful. You can challenge it after the fact. If you can’t safely record the interaction, ask other reporters present to document what is happening.
- Contact us for help. If you’re threatened with discipline or have questions about your rights, reach out to the Student Press Law Center’s Legal Hotline.
Bottom line
Murphy told CNN she has no plans to stop covering Harris, but student journalists shouldn’t have to defend or second-guess routine newsgathering because someone in power misunderstands the law.
Student journalists are journalists. You have the same right to cover a public official as anyone in the press pool. You deserve the same respect when you do.
At the Student Press Law Center, we applaud Murphy’s bravery and professionalism and stand with all student journalists who face threats, intimidation or retaliation.