The McCurtain County sheriff said an explosive recording was illegally obtained. Was it?
The fallout continues in McCurtain County, mere days after a print-only newspaper published a controversial recording of an alleged conversation in which local officials were discussing a plot to kill reporters and making hateful comments about Black people.
The sheriff's office announced an investigation of the publisher for possible violations of Oklahoma law, but the newspaper said its publisher consulted with attorneys, who assured him he was doing nothing illegal.
The recording still has not been independently verified by The Oklahoman, but the circulated audio has drawn national attention and was the catalyst for protests in Idabel, with residents demanding the officials resign and many state officials echoing their outrage.
The debate over the recording, shared with numerous news outlets and federal investigators, revolves around how it was obtained and if either the publisher or the recorded individuals could face punishment concerning the recording.
What are the allegations against McCurtain County officials?
The McCurtain Gazette-News reported that after a March 6 county meeting, officials discussed killing local reporters and making racist comments toward Black people.
According to the newspaper, Sheriff Kevin Clardy, investigator Alicia Manning, Jail Administrator Larry Hendrix and District 2 Commissioner Mark Jennings took part in the impromptu discussion.
How was the recording obtained?
Bruce Willingham, the longtime publisher of the McCurtain Gazette-News, said the recording was made when he left a voice-activated recorder inside the room after a county commissioners meeting, according to the Associated Press. He said he suspected the group was continuing to conduct county business after meetings had ended, in violation of the state's Open Meeting Act.
Instead, he said he found McCurtain County officials allegedly discussing how to kill him and his son, Chris Willingham, who has also worked as a reporter at the local newspaper for 18 years. Comments during the recorded conversation also allegedly reference the pastime hanging of Black people and how they have "more rights" than others.
Bruce Willingham said he spoke twice with his attorneys to be sure he was doing nothing illegal.
More: 'You can't take things like this lightly.' State officials call for resignations in McCurtain County
How have McCurtain County officials responded?
Protests erupted Monday in Idabel, demanding accountability for the officials. The Oklahoma Sheriffs’ Association suspended three of the implicated officials, and Jennings tendered his resignation early Wednesday. Oklahoma Governor Kevin Stitt had already called for the other individuals to resign as well, but the McCurtain County Sheriff's Office said in a statement late Monday that the officials were the "victims of criminal activity."
"Our preliminary information indicates that the media(-)released audio recording has, in fact, been altered," the statement read. "The motivation for doing so remains unclear at this point. That matter is actively being investigated. In addition to being illegally obtained, the audio does not match the 'transcription' of that audio, and is not precisely consistent with what has been put into print."
The statement ends with promises that the investigation's findings would be "forwarded to the appropriate authorities for felony charges to be filed on those involved."
What are Oklahoma laws on recordings?
Oklahoma's Security of Communications Act does say that it is illegal to record an in-person or telephone communication without the consent of at least one party or to record a communication with "criminal or tortious intent." Illegal recording is a felony punishable by fine, imprisonment, or both.
It is also a felony to photograph or record, "in a clandestine manner for any illegal, prurient, lewd or lascivious purpose," a person in a place where there is "a reasonable expectation of privacy" and to disclose any images obtained by these means, according to Oklahoma Statute title 21, article 1171, otherwise known as the "Peeping Tom" law.
But the law does not criminalize the use of recording devices for other purposes in areas where the public has access or there is no reasonable expectation of privacy, like recording conversations on public streets or in a hotel lobby, according to the Reporters Committee for Freedom of the Press.
Christine Pappas, a political science professor at East Central University in Ada, said the space in which the McCurtain County officials meet did not seem to fit the definition of a place where they should have expected privacy, especially if a public meeting of commissioners had just adjourned.
"If a reporter had just been there and then left the room, then your expectation of privacy would be a lot less, because you are in a room where the public is invited," Pappas said. "It's not like your house."
Pappas said that, if the officials were "just in a room chatting," they might have expected privacy, but if the officials were still together discussing local government affairs even after the "official" public meeting had ended, the continued meeting would have been illegal.
Bruce Willingham told News 9 that the conversation in the recording began with discussion of county business, before veering into the incendiary topics the newspaper reported.
More: Transcript of McCurtain County Sheriff, Commissioners discussing lynching, hiring hit men
Can journalists face punishment for recordings of public officials?
According to Oklahoma Statute, title 13, article 176.3, the disclosure of contents from an oral, telephone or electronic conversations obtained through illegal recording is a felony. And repeating or publishing the contents of a discussion overheard while secretly loitering around a building is a misdemeanor, when done with the intent to "vex, annoy, or injure others," according to Oklahoma Statue, title 21, article 1202.
But if a journalist was given an illegally recorded conversation and was not involved in the illegal obtaining of it, publication of the material is "likely protected" by the First Amendment to the U.S. Constitution, provided it is truthful and a matter of public concern, according to the Reporters Committee for Freedom of the Press.
In 2022, the U.S. Court of Appeals for the Tenth Circuit, which includes Oklahoma, said there is a constitutional right to record government officials and law enforcement performing their duties in public, in order to "check abuse of power."
Is Oklahoma a one-party or two-party state for recordings?
Oklahoma law stipulates that it is a one-party consent state with recordings. That means that, in Oklahoma, it is legal to record a conversation if at least one party to the conversation knows about and consents to the recording.
In other words, if a person secretly records a conversation with another person, that recording would be legal. If a person secretly records a conversation two or more unaware people are having, that recording could be unlawful.
Could the journalists face charges in the McCurtain County scandal?
"It could be that both sides broke the law" in the McCurtain County situation, Pappas said. "It could be that the journalist couldn't legally use their recording, but it is also quite illuminating with the information that they brought out."
To Pappas, even if authorities determine Bruce Willingham broke the law in how he obtained the recording, "it still doesn't excuse" the contents of the recording.
"The officials never really said, 'We didn't say stuff like this,' they're just saying the transcript is not exactly like the tape," Pappas said. "That's a weak argument. And if the reporter suspected that there were these 'after-meeting meetings' going on, which seemed to be the case, this may have not been a legal way of confirming their suspicions, but I have a hard time figuring out other possibilities for what they could have done."
Joey Senat, an Oklahoma State University journalism professor specializing in media law, told KFOR he does not believe the scenario qualifies for charges against the Willinghams.
"This conversation occurred in a public room where the county commission had just met, and other people were around. You generally don't have an expectation of privacy when you're talking in a public place like that. That's different from had they been talking in a commissioner's office with the door shut, but that's not what they did."
More: McCurtain County officials suspended from Oklahoma Sheriffs' Association
Can McCurtain County officials be removed after investigations into the recording?
Commissioner Jennings resigned Wednesday morning. That same day, the Oklahoma State Bureau of Investigation said they were investigating the matter on request of Gov. Stitt.
If the state were to try to forcibly remove any of the other involved officials for alleged misconduct, it would take Oklahoma's Attorney General filing charges in the local county court or in the state's Supreme Court.
Relevant complaints for the McCurtain County situation could include "violations involving moral turpitude," a phrase that describes "wicked, deviant behavior" constituting an immoral, unethical or unjust departure from social norms to the point of shocking a community.
Bruce Willingham said he believes the local officials were upset about "stories we've run that cast the sheriff's office in an unfavorable light," including the in-custody death of Bobby Barrick, who died in March 2022 after McCurtain County deputies shot him with a stun gun. The newspaper has filed a lawsuit against the sheriff’s office seeking body camera footage and other records connected to Barrick’s death.
Also, a federal lawsuit has been filed by reporter Chris Willingham, alleging that McCurtain County officials have unlawfully retaliated against him by making "false and slanderous" claims that he exchanged marijuana for videos of child pornography in an unrelated case.
Contributing: Staff writer Dale Denwalt; The Associated Press
This article originally appeared on Oklahoman: What are the Oklahoma recording laws? A look at McCurtain County
