Surveillance tactic

Radio host Dan Caplis's plan to videotape patrons of a swingers club is a terrible idea

Aug. 25, 2007

by David Kopel

The sex lives of judges has been a big topic of Denver media interest this summer. But that doesn't mean that the Denver media aren't interested in publicizing the sex lives of people who aren't famous. KHOW talk-radio host Dan Caplis has promoted an invasion of privacy plan which, while not illegal, shows poor judgment.

Sugar House is a Denver nightclub set to open today. The club caters to "swingers" - that is, people interested in meeting like-minded others for casual sex. Presumably, some of the clientele also includes married couples interested in spouse-swapping.

Some people in the Sugar House neighborhood in south Denver do not like the nightclub, and have been lobbying the Denver zoning authorities against the club being allowed to open. After months of delays, Sugar House has received its zoning approval.

On Aug. 10, KHOW's Caplis devoted the final hour of The Caplis & Silverman Show to the Sugar House controversy. Co-host Craig Silverman was busy in court that day, depriving the show of a crucial check.

At first, Caplis interviewed the owner of Sugar House. Caplis took him off the air after he repeatedly refused to give a straight answer to Caplis's question about whether his nightclub promotes spouse-swapping. Afterward, Caplis spent the rest of the hour taking calls, and promoting his own idea about how neighborhood activists could get rid of Sugar House.

Caplis would have been on solid ground if he had urged activists to picket the nightclub. And Caplis has every right to use his radio show to express his views about the moral turpitude of Sugar House.

But instead of relying on free speech, Caplis offered what he called an "innovative" idea: People in the neighborhood should photograph and video everyone who enters or leaves Sugar House, and should publish the photos and videos.

Is the tactic legal? Probably yes. Colorado law would plainly forbid the surreptitious (e.g., by a concealed cameraman) recording of conversation (e.g., by a long-distance microphone). But if the recording is video only, then Colorado's criminal law against wiretaps would not apply.

Arguably, Caplis and his activists (as well as KHOW and Clear Channel) could be sued for "unreasonable disclosure of personal facts" or "unreasonable intrusion into the private affairs of another."

Legal precedent on these torts in Colorado is thin. It would be up to a jury or judge to decide whether the facts diclosed were actually "private in nature," and were "not be of legitimate concern to the public" and whether defendants' actions would be "highly offensive to a reasonable person."

One view is that anything done in public is fair game for being filmed and publicized. A contrary view is that the Sugar House patrons are not intending to do anything in public. They are simply traveling from their private homes to a private club, and are only "in public" because they have to travel on a public road.

Caplis argues that the surveillance and publication are legitimate because the Sugar House patrons are supposedly "so proud" of their lifestyle. The argument is very weak. Many people take pride in their religious faith and their jobs. That people may be "so proud" to be Jews, Catholics, accountants or carpenters would not justify enemies of that pride standing outside a church, synagogue or workplace and filming everyone going in.

Caplis also argues that a swingers club is so harmful to a neighborhood that all lawful tactics are justifiable, while such tactics would not be justifiable against a gay bar. Surely Caplis is right that in Denver, a swingers club might harm the reputation and image of a neighborhood (and therefore the property values) more than would a gay bar. After all, the GayCites Web guide lists 17 gay bars or clubs in Denver, and the city for decades has enjoyed a gay-friendly reputation.

But in some small, rural towns, a group of residents might be just as sincerely worried about the impact of a gay bar as Caplis' Denver activists are worried about the swingers club. In the United States, there are neighborhoods where an angry group of activists would feel outraged and threatened by the opening of a communist bookstore, a racist bookstore, a strip club, an adult bookstore, a birth-control clinic, an abortion clinic or a gun store.

If a high level of neighborhood outrage can justify surveillance and publication of everyone entering an establishment, then we will see increasingly common surveillance of people who enter private establishments to which some people have strong moral objections. This will, inevitably, lead to the videotaping of the videotapers, and posting their images on the Internet.

The media, which depend on the First Amendment, should not be encouraging people to abandon the civic battle of ideas (expressed by picketing) and its replacement by silent surveillance wars.


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