- "Does Penal Code section 16.02 prohibit intercepting and disclosing the contents of an oral communication even when the speaker has no expectation that his words will not be repeated by those present?"
- "Does a basketball coach have a justifiable expectation that his pep talk in a girls' locker room will not be secretly recorded by a former player?"
Long's daughter quit her high school basketball team after the first game because of the coach's alleged harshness. Intending to expose her former coach, Long's daughter entered the team's locker room at an away game and hid her iPhone to record the coach's halftime and post-game speeches. Long provided the school board with the recordings, which were ultimately turned over to police. Long was convicted of violating Tex. Penal Code § 16.02 by unlawfully intercepting or disclosing oral communications.
The court of appeals reversed. It held that what the coach said was not an "oral communication," which is defined as one "uttered by a person exhibiting an expectation that the communication is not subject to interception under circumstances justifying that expectation." Applying the subjective/objective test used for Fourth Amendment privacy claims, it concluded that the coach did not have a reasonable expectation of privacy in his halftime and post-game speeches to his players.
The State argues that the court of appeals' interpretation of "oral communications" ignores the plain language of the statute and thus the legislature's intent. The question is not whether the coach had a reasonable expectation that the contents of his speech to high school students would remain secret. Rather, the question is whether he was justified in expecting that his speech would not be secretly recorded by someone prohibited from being a party to the conversation. The State also argues that the court of appeals erred by addressing Long's motions for directed verdict and judgment of acquittal without addressing sufficiency. Had it based a sufficiency review on its statutory interpretation, it would have realized that the coach's subjective expectation was exclusively within the province of the jury and that the objective reasonableness of that expectation was a question of law unfit for a jury.