AFT Michigan v. Project Veritas

Court: Michigan Supreme Court

Date Filed: Feb. 24, 2021

Update: On May 26, 2021, the Michigan Supreme Court issued an order declining the request to answer whether Michigan’s wiretapping statutes prohibit recording a conversation without the consent of all parties to the conversation.

Background: Nearly 40 years ago, in Sullivan v. Gray, the Michigan Court of Appeals held that the consent of only one involved party is required in order to lawfully record a conversation.

Now, the Michigan Supreme Court is being asked to either affirm the lower court’s decision or rule that the state’s eavesdropping statutes prohibit the recording of a conversation unless all parties consent to it.

Our Position: The Michigan Supreme Court should affirm the one-party consent principle.

• The doctrine of legislative acquiescence supports the traditional interpretation of Michigan’s eavesdropping statutes. In the nearly 40 years since Sullivan was decided, the state legislature has made no attempt to amend the statutory language to overrule the appeals court’s interpretation.
• The one-party consent interpretation serves vital First Amendment interests. A ruling in favor of the all-party consent interpretation would subject journalists and their sources to potential criminal and civil liability, and would create a chilling effect on newsgathering and reporting in Michigan.

Brian D. Wassom and Matthew T. Nelson of Warner Norcross + Judd LLP represented the media coalition in this friend-of-the-court brief.

Quote: “The issue presented in this case has potentially broad ramifications for journalists in Michigan who rely on recorded source material. Plaintiff’s interpretation of the Statutes would give rise to potential criminal and civil liability for journalists, as well as their sources. The threat of fines or criminal penalties for this type of newsgathering and reporting could cause sources to dry up and members of the press to self-censor, thus ultimately depriving the public of key information about matters of significant interest.”

Related: In 2011, the Reporters Committee submitted a friend-of-the-court brief in ACLU v. Alvarez, urging the U.S. Court of Appeals for the Seventh Circuit to find it unconstitutional for the Illinois Eavesdropping Act to criminalize the recording of conversations without the consent of all parties involved, regardless of whether the conversation was intended to be private. A year later, the court ruled that the Act was likely unconstitutional and could not be enforced against the American Civil Liberties Union of Illinois.

For more information about the recording laws in your state, check out the Reporters Committee’s Reporter’s Recording Guide.