I’m surprised the university would take the position that videotaping conducted by members of its campus community violated its Privacy Policy, a position that seems to suggest that the action was somehow its own. The scenario seems to me to be more about non-academic misconduct. Was videotaping contrary to any general or specific prohibition in the university’s non-academic code?

I think the legality of this type of conduct is a very significant issue because of its prevalence. When the taping occurs in public, I’d argue the invasion of privacy tort - which likely turns on a subject’s reasonable expectation of privacy - neither can nor should apply. Privacy advocates might differ from me on this point, but there is a public interest in free flow of information at play that demands a careful balancing. The tort of intimidation is a better fit in my view, and like outcome of the OPIC decision you cited, turns on evidence of an improper motive. An improper motive may be hard to prove, but to take your scenario, let’s say a group opposed to the pro-lifers was taking pictures of people attending the display and outing them on the internet as pro-life supporters. This might draw common law sanction.

As for the university, I like fairly general and flexible codes, but if this type of behavior is a real problem, creating an express rule in its code of conduct that conforms to the intimidation tort might be helpful and also consistent with its commitment to the free exchange of information and ideas.

Dan

[Disclaimer. These are my views and not necessarily those of my employer. It’s also not legal advice and should not be relied upon as such.]