The Political Pocket Dial: Dan Coffey’s Off-Color Tape

There’s nothing quite like a good old-fashioned political scandal.  Anchorage might be Alaska’s biggest city, but it’s still a small town.  Small: like you run into people you know at the grocery store.  Small: like you know someone who knows almost everyone new you meet.  In this small town, politicians might be advised to be careful what they say to one another; what goes around, comes around.

We’re all familiar with the case of someone accidentally leaving a mic on when a public figure makes a side-remark about how he or she really feels about an issue.  That remark is usually not as polished as the remarks that same public official would make in front of a crowd.  Something we’re a little less familiar with is the political pocket dial.

Oh, the pocket dial.  It can be funny, it can be awkward.  But can it be illegal?  Well, in the case of mayoral hopeful Dan Coffey, the answer to that question remains unclear.1.22.15_coffey_image

In 2008, Dan Coffey, who was then the chairman of the Anchorage Assembly, and Bill Star, a fellow assemblyman, were speaking while riding in a car together.  Unbeknownst to the two men, Coffey pocket dialed another assemblyman, Alan Tesche, during the conversation.  Tesche wasn’t home, but his answering machine picked up and recorded the call.

Now, this all might not be such a big deal, if it weren’t for the unsavory contents of the call.  The recording, complete with off-color language, is wholly embarrassing for Coffey.  But, the seven-year-old recording isn’t something that blindsided the Coffey campaign.  In fact, a transcript of the recording has been made available on Coffey’s website, coffeyforanchorage.com.

Coffey has disclosed a list and information about five “mistakes” he’s made in his political career, and the recorded conversation in question is one of them.

Coffey most recently ruffled feathers when his lawyer sent out a letter to local news organizations threatening legal action if they broadcast the recording in the weeks leading up to the election.

Although Coffey claims not to have thoroughly read the letter and states that he has no intention to sue anyone, his lawyer’s letter has served to bring a new influx of attention to the recording.

On the subject of the letter written on behalf of Coffey by his attorney, Thomas Amodio, what kind of legal standing does the recording really have?  John McKay helps clear up that question.  McKay is an Anchorage lawyer who represents (among others) the Alaska Dispatch News and Channel 2.  He also teaches Media Law 413 here at UAA.

“Alaska law,” McKay says, “only requires the consent of one party to a conversation.  So that, for example, if you and I are talking on the phone, I could consent, I could record the conversation, and it would not be recorded without consent, because I am one of the parties to the conversation, I can consent to it.”

McKay says that the case also brings first amendment rights into question.  The right of the press to freely report things may be more fully protected than the rights of the people who were recorded.  He says that stations receiving the recording, since they were not involved in producing the recording themselves, would likely be safe from litigation.

McKay told me that this particular case raised some interesting questions, legally speaking.  Since no one purposefully made the recording, it could be difficult to show that any crime had been committed.  However, since neither parties in the recording has consented to being recorded, the legality of the recording itself could be called into question.

“Mr. Coffey, or his phone, or his phone working in concert with his rear end decided that they were going to communicate with Mr. Tesche,” McKay says.  He says that none of the parties involved had any criminal intent and to say that there was a crime committed in the making of the recording really doesn’t make sense.

McKay says that, while the case is an interesting one, most of these points essentially don’t matter.  He says that, by releasing the transcript on his own website, Coffey passively gave consent for the information to be out there and to be published by other organizations as well. McKay says that “Mr. Coffey can’t have it both ways.”

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