‘Disorderly conduct’ for high school student to secretly record his tormentors in the classroom?

April 15, 2014

I blogged Monday about this incident, based on a media account, but careful readers will note that I was hesitant to accept the media account’s version of the facts — simply because the prosecution seemed so unsound that I thought there might have been more to it.

Well, now I’ve read the police citation issued to the student, the police incident report and the transcript of the trial, and my hesitation is gone: The criminal conviction seems every bit as unfounded as the news report suggests.

To begin with, none of these documents suggests any possible other misconduct by the student besides recording his classmates. Nor does it suggest any motive other than to get evidence that the classmates were insulting him. The trial transcript doesn’t contain a transcript of the recording, but there is no evidence contradicting the student’s claim that the classmates were indeed tormenting him.

Where then is the “disorderly conduct,” defined as “creat[ing] a hazardous or physically offensive condition by any act which serves no legitimate purpose of the actor”? Here’s the only explanation offered by the government, from the testimony of police Lieutenant Robert Kurta; the questions are from the student’s lawyer, and the answers from Kurta:

Q. Okay. So let’s start with the hazardous or physically offensive condition. Do you believe that [defendant's] recording met that element of the crime?

A. Certainly not hazardous, but it is offensive to commit some form of a crime. Yes.

Q. Okay. And did it involve any danger or risk to anybody that was recorded on the conversation?

A. Hazardous, no.

Q. Okay. And the next element then served no legitimate purpose. You agree with me, though, that it’s legitimate to try to record people bullying you; don’t you?

A. No.

Q. That’s not a legitimate purpose?

A. I think to commit a crime for the purpose of proving someone else’s actions doesn’t make it right.

So according to the government here, essentially committing any other crime is also “disorderly conduct” — even if you don’t charge the person with the underlying crime — because “it is offensive to commit some form of a crime” and because committing a crime makes the underlying conduct lack a “legitimate purpose.” The judge (District Justice Maureen McGraw-Desmet) didn’t render a detailed opinion, but she did find the defendant guilty, so she must have accepted some such theory, since otherwise the elements of disorderly conduct would be absent.

But that can’t be right. First, the disorderly conduct statute requires that the conduct be “physically offensive.” Even if committing a crime is “offensive” in some general sense, that doesn’t make the conduct in this case “physically offensive” for the purposes of the “disorderly conduct” statute.

Second, the disorderly conduct statute requires lack of a legitimate purpose. Even if the recording was illegal, that wouldn’t mean that the act of recording lacked a legitimate purpose — only that it was carried out through illegal means.

Third, and most important, as I discussed in detail in my earlier post, there likely was no underlying crime of illegal recording. Under Pennsylvania law, recording conversations is illegal only if the speakers have a reasonable expectation of privacy, and it’s hard to see how students talking in a classroom where everyone can hear them have a reasonable expectation of privacy. Here’s Lt. Kurta’s only response to the defense lawyer’s argument on this:

Q. Are you aware that for a recording to be a violation of the wiretap law that the individual that is recorded has to have a reasonable expectation of privacy in what they’re saying?

A. Yes.

Q. And so you believe then that students in a classroom that are bullying my client had a reasonable expectation of privacy that that conversation would not be recorded? …

[A.] I believe that in Pennsylvania two-party consent is required, unless prior approval from the district attorney or attorney general is obtained. I don’t think that you are permitted to commit a crime to generate evidence of a crime that you’re alleging.

So Lt. Kurta had no explanation of how the students could have had a reasonable expectation of privacy here — although he first agreed that such a reasonable expectation is required, he then just took the view that two-party consent is required, period. Again, the judge said nothing to explain her verdict, but presumably she must have taken the same view as well, since a finding of illegal recording has to be necessary to explain how the conduct might have been “physically offensive” and lacking in a “legitimate purpose.”

So the conviction strikes me as entirely unjustified. Fortunately, it’s being appealed — an appeal hearing in the Allegheny County Court of Common Pleas is set for April 29 — and I expect it to be reversed.

Eugene Volokh teaches free speech law, religious freedom law, church-state relations law, a First Amendment Amicus Brief Clinic, and tort law, at UCLA School of Law, where he has also often taught copyright law, criminal law, and a seminar on firearms regulation policy.
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