In the face of many real problems, the Republican legislature of my adopted state of Florida has been busy passing laws to address fictional problems and undermining democracy. HB 233, the “Viewpoint Diversity” bill, was recently signed by Governor DeSantis. As noted in an earlier essay, when the Republicans were asked for examples of the problems the bill was supposed to address, they could only refer vaguely to some parents being worried about things that might happen because the Republicans had been scaring them about things that have not happened. This is, of course, the best possible justification for expanding the coercive power of the state.
I am a member of the United Faculty of Florida, a union for faculty. As would be expected, Florida Republicans do not like this union anymore than they like other unions: their ideal seems to be that employees should face off against institutions and businesses as isolated individuals. The obvious problem for the employee is that engaging with an employer as an individual is rather like a single person trying to play football against a full team: they are going to get crushed. I do, of course, admit the obvious: unions can have problems. But pointing to things unions have done wrong no more proves that unions are inherently bad than pointing to things employers have done wrong proves that employers are inherently bad.
As would be expected, the UFF sent an email to its members informing us of the law and making recommendations on how to teach in the climate created by it. One provision of the law is that students can record lectures without notice and without consent; although there are some limits on how these recordings can be used. As is so often the case with Republican laws, this seems to have already been allowed by existing law.
In Florida, it is a crime to record a person without their consent. The exception is for in-person communication when all the parties do not have a reasonable expectation of privacy. An example of this would be holding a conversation in a public space where they could be overheard. A reasonable case can be made that a classroom in a public university is a public space and that there is no expectation of privacy when a professor is lecturing to a class. Naturally, there can be cases in the classroom where privacy is expected. For example, if I am speaking to a student after class about their grade and someone is hiding in the hallway recording us, then they would seem to be breaking the law. While I am not a lawyer, I had always operated under the assumption that my lectures could be recorded by students without breaking this wiretapping law: I do not believe that I have an expectation of privacy when I am teaching a class at my public university. That said, a case can be made for such an expectation of privacy.
One could argue that the classroom at a public university is not a public space where there is no expectation of privacy. After all, at class time the classroom is intended for the students enrolled in the class and there is a mechanism for auditing the class. As such, a professor could contend that they have an expectation that the lecture will only be heard by the students enrolled in the class. That is, the class is private for the students and the fact that there are many students does not serve to eliminate the expectation of privacy. I am certainly sympathetic to this view, especially if one considers the students in the class.
Students often, perhaps wrongly, think of the classroom as a private space in terms of being able to express themselves and even to bring up personal matters. For example, a student might want to discuss an incident in which they were the victim of a crime during a course on criminal justice or ethics. As another example, student with atheist parents might want to discuss aspects of their faith in a religion class. If a student is secretly recording the classes, these students will end up in the recordings. As such, one impact of this law might be that students will be even more reluctant to talk in class. In any case, they do have the moral right to know that one of their number might be recording everything in the classroom—and I have a moral obligation to inform my students that this is something that can happen. I must note that I have recorded my classes, but this has always been done openly. Students have never asked to not be recorded, but they have always had the right to make this request in my classes. Defenders of the law can argue that students should not be worried about their being recorded because the law limits how these secret, non-consensual recordings can be used.
Lectures are presumably protected by copyright laws and the law seems to respect this to a degree. Such recordings can be used only “for a student’s own personal educational use”, “in connection with a complaint to the public institution of higher education where the recording was made” and “as evidence in, or in preparation for, a criminal or civil proceeding.”
The first use might strike some as very generous; imagine, for example, if a law allowed people to take a camera to a commercial play or movie and record the show for their own personal use later. That said, people are allowed to make recordings in certain contexts for later viewing—so one could take that as the better analogy. The second use seems a bit vague and perhaps would allow some abuse, but one could argue that students have a right to record evidence they will use as the basis of a complaint. That said, there is already an existing complaint process and, as noted above, the Republicans have not provided evidence that there is a significant problem that would warrant a new law.
The third use would probably strike most people as eminently reasonable: if a professor is doing crimes in the classroom, then they would be hard pressed to make a moral case for their right to do crimes in private. But, as has often been noted, the Republicans have not provided evidence that this sort of thing is a significant problem or that the matter was not adequately addressed by existing laws before the passage of this law.
If a recording is used for other purposes, a faculty member can seek damages of up to $200,000. But, of course, people can already sue anyone for anything—so putting this in the law just limits the damages. Students do, of course, have an easy workaround: they can record a lecture, make a complaint and then the video could end up a matter of public record.
Since I have been recording and distributing my lectures for years, I am not worried about the impact of the law on me. However, I am concerned about the intent of the law. One clear motivation is to rile up the base and create the illusion that the Republicans are solving a problem. It also allows the Republicans to say they are “owning the libs.” This seems to be much more important to them then engaging in real governance. The most worrisome motivation is that this law is intended as a Soviet style threat to faculty: “anyone in your class could be a spy, so you had better watch what you say, comrade.” The right has long been interested in “spying” on professors and in 2006 a right wing group even offered to pay students to do just that. This tactic of spying goes beyond the classroom and includes attempts to infiltrate political organization. As a counter, one might contend that the media also engages in “spying” operations to gather information about groups. However, there are important differences between an investigation conducted by a professional media organization and partisan “spying.” A key difference is that a professional investigation is aimed at determining the truth of the matter, while partisan “spying” is aimed at a political agenda and hence includes a willingness to distort and mislead. I am, of course, aware of the right-wing view that the liberal media is just a bunch of partisan hacks. To the degree that this claim has merit, I would certainly share their concerns about bias.
In closing, when the Fall semester rolls around my classes will include a concise and neutral statement to my students. This statement will make it clear they have every right to record my class in accord with this law. It will also make it clear that they should always keep in mind that someone could be recording them in the class without their knowledge or consent.