TX8: No REP in a high school coach’s half-time speech to his team

It was not a crime under the state wiretap statute for an interloper to record a visiting high school football coach’s half time speech to his team because there was no reasonable expectation of privacy. “The issue in this case of first impression is whether the following incidents constitute crimes under Texas’s criminal wiretap statute: the surreptitious recording—later disclosed to a third party—of a public high school basketball coach’s half-time and post-game speeches to his team in the visiting locker room of a public high school. In essence, a person violates the wiretap statute by intentionally recording, or intentionally disclosing the contents of, a ‘wire, oral, or electronic communication.’ See Tex.Penal Code Ann. § 16.02(b)(1), (b)(2)(West Supp. 2014). For purposes of the wiretap statute, an ‘oral communication’ is one ‘uttered by a person exhibiting an expectation that the communication is not subject to interception under circumstances justifying that expectation.’ [Emphasis added]. See Tex.Penal Code Ann. § 16.02(a); Tex.Code Crim.Proc.Ann. art. 18.20, § 1(2) (West 2015). The threshold question, as framed by the parties, is whether the coach had a reasonable expectation of privacy under the circumstances. We conclude that he did not and, therefore, that the recordings in dispute are not ‘oral communications’ covered by Section 16.02 of the Texas Penal Code, the statute used to convict Wendee Long. Accordingly, we reverse Long’s conviction and render judgment acquitting her of the charged offense.” Long v. State, 2015 Tex. App. LEXIS 6714 (Tex.App.–El Paso June 30, 2015).

And this was charged as a crime? This is a sad reflection of the importance of high school football in Texas; apparently more important than common sense in prosecutorial discretion and any sense of apportionment of the time of courts and lawyers. The fact the trial judge let this go to the jury also shows why we shouldn’t elect judges. Look at the waste of time and money in this prosecution.

From the opinion:

While not as widely accepted as the proposition that a public school teacher has no reasonable expectation of privacy in a classroom setting, a public high school coach—like a public high school teacher—is an educator, in the broadest sense of the word. The essence of an educator’s role is to prepare students to fulfill their role as responsible citizens in a free society. Lowery v. Euverard, 497 F.3d 584, 589 (6th Cir. 2007); Hardy v. Jefferson Cmty. Coll., 260 F.3d 671, 679 (6th Cir. 2001). “Educating students includes not only classroom teaching, but also supervising and educating students in all aspects of the educational process.” Ex parte Trottman, 965 So.2d 780, 783 (Ala. 2007). Extracurricular activities are important to many students as part of a complete educational experience. Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290, 311, 120 S.Ct. 2266, 2280, 147 L.Ed.2d 295 (2000). To “educate” means “to train by formal instruction and supervised practice esp. in a skill, trade, or profession” or “to develop mentally, morally, or aesthetically esp. by instruction.” Merriam-Webster’s Collegiate Dictionary 396 (11th ed. 2009).

Although the duties of a coach are not comparable to that of the typical classroom teacher, no one could reasonably deny that some of the duties of a coach involve a type of teaching. Theiler v. Ventura Cnty. Cmty. Coll. Dist., 198 Cal.App.4th 852, 859, 130 Cal.Rptr.3d 273, 277 (2011), as modified (Aug. 24, 2011). A public high school coach educates students-athletes in a myriad of ways. Principally, a coach provides instruction to help his players reach a certain performance standard in a chosen activity. See Lowery, 497 F.3d at 589 (recognizing that “the immediate goal of an athletic team is to win the game, and the coach determines how best to obtain that goal[]”); Ex parte Nall, 879 So.2d 541, 546 (Ala. 2003)(holding that student injured during baseball practice could not recover in negligence suit against public school coaches because they were state agents entitled to immunity for the exercise of judgment in educating students).

Secondarily, a coach teaches his players to develop self-discipline, an admirable trait and one necessary for success in most endeavors in life, including academics. See Lowery, 497 F.3d at 589 (recognizing that students participating in sports develop discipline, and that “[athletic programs may also produce long-term benefits by distilling positive character traits in the players[]”); Ex parte Yancey, 8 So.3d 299, 305-06 (Ala. 2008)(holding that student injured while cleaning field house following weight-lifting class taught by high school public coach could not recover in negligence suit against the coach because he was a state agent entitled to immunity for the exercise of judgment in teaching students discipline in his weight-lifting class by requiring them to clean field-house facilities).

From the preceding authority, we can extrapolate that society is not willing to recognize that a public school educator—whether a teacher or a coach—has a reasonable expectation of privacy in his or her instructional communications and activities, regardless of where they occur, because they are always subject to public dissemination and generally exposed to the public view. Here, there is no doubt that Townsend was an educator helping his pupils maximize performance and develop discipline. At trial, Townsend acknowledged his role as an educator: ….