A number of media organizations – including E.W. Scripps and Sinclair Broadcasting – recently prevailed in a West Virginia appellate case and avoided liability for broadcasting audiotapes that the plaintiffs claimed were illegally obtained.

The decision reiterates what is now settled law. A publisher (or broadcaster) who publishes material that was illegally obtained is not liable so long as the publisher was not involved in illegally acquiring the material in the first instance. The material must also concern a matter of public concern.

The mother of a special education student at the Berkeley Heights Elementary School was apparently concerned with how the student was treated at the school. The mom one day sent the child to school with a recording device in her hair. The device recorded conversations and ambient sounds in the vicinity of the student’s hair. The recordings apparently captured two teachers physically and verbally abusing students. The mom provided the recordings to various media outlets who broadcast the contents.

The teachers filed suit contending that the media outlets were liable under state and federal statutes prohibiting such surreptitious recording. The trial court dismissed the action finding that the statutes, if applied in the manner requested by the teachers, would violate the broadcasters’ First Amendment rights.

The teachers appealed, but had no luck in the appellate court. In a 2001 case called Bartnicki v. Vopper, the United States Supreme Court ruled that the First Amendment protects the publication of matters of public concern even if the information was originally illegally obtained, so long as the publisher had nothing to do with the original illegal acquisition.

In this case, the teachers did not allege that the media outlets were involved with setting up the recording in the classroom. That appeared to be solely the work of the mom. So that part of the analysis was pretty easy.

The other part of the analysis – whether the recordings concerned a matter of public concern – was a little tougher.

The teachers tried to keep the focus narrow – what happens in a single West Virginia classroom is not a matter of public concern. But the appellate court pulled the camera back to see a bigger picture. In its view, “there can be no doubt that alleged child abuse in a public school’s special education classroom is a matter of grave public concern. What was recorded in A.P.’s classroom goes to the heart of our society’s need for transparency in its public education system.” As part of a larger issue the incident easily satisfied the public concern test.

The Supreme Court’s balancing act in the Bartnicki case serves the public interest while protecting legitimate privacy rights. The West Virginia court was right to apply it here.

Jack Greiner is a partner at the Graydon law firm in Cincinnati. He represents Enquirer Media in First Amendment and media issues.

This article originally appeared on Cincinnati Enquirer: Strictly Legal: No liability for illegal recording