Justices are grappling instead with whether gamer David Race, who lives in Ohio, violated Florida law when he secretly recorded fellow gamer Billy Mitchell without the Broward County resident’s permission. Florida is one of 11 states that require all parties to consent to being recorded.
According to court documents, Mitchell, who holds highest-scoring records in Pac-Man and Donkey Kong games, learned of the 27 recorded phone calls when they were revealed as part of a California defamation lawsuit Mitchell filed against Twin Galaxies, a video-game social-media platform that supplies data to the Guinness Book of World Records. The lawsuit was settled in January.
Race, who also holds records in Pac-Man and other arcade games, has accused Mitchell of cheating, and chatter about scoring issues has circulated for years on social media.
In a 2021 lawsuit filed in Broward County circuit court, Mitchell accused Race of violating Florida’s “Security of Communications Act” by failing to obtain his permission before recording the calls through an app on Race’s phone.
A judge refused Race’s request to dismiss the case, but the 4th District Court of Appeal sided with the Ohio resident, finding that “it offends traditional notions of fair play and substantial justice to require him to appear in Florida to defend against a lawsuit for an alleged violation” of Florida law. Mitchell appealed to the Supreme Court.
Wednesday’s arguments made no mention of the grudge match between Race and Mitchell, who attended the court session clad in a trademark black suit with a stars-and-stripes tie.
Justices asked numerous questions about whether the “interception” of the phone calls occurred in Florida or in Ohio, where the recordings were made, and whether Race was aware of Mitchell’s location.
Attorney James Stepan, who represents Mitchell, pointed to previous cases that established “interceptions occur where the person is speaking.” Mitchell was in Florida for all of the calls, he added.
“Well, yes, but the operative complaint doesn’t allege that Mr. Race knew that,” Justice John Couriel said.
“It’s no secret my client was a Florida resident. He’s somewhat of a, dare I use the word, celebrity, in the video-gaming industry, and so is Mr. Race, or at least he’s trying to be,” Stepan said.
Justice Meredith Sasso pressed Stepan on the issue.
“Don’t you think we need something indicating that the person who’s recording the calls knows that the person is in Florida? I mean, I like the idea of us walking around the country with like this special bubble of protection because we’re Floridians, but I’m not sure that’s how the law works,” she said.
“That’s correct, but my client was in Florida and he is entitled to the protection of Florida law while he’s here,” Stepan responded.
Robert Schenck, a lawyer in Attorney General Ashley Moody’s office, argued that the case involves “the court’s power to vindicate an interest which this court said is one of the highest order in a free and civilized society.” Moody’s office entered a friend-of-the-court brief siding with Mitchell.
“Can you explain what the state’s response would be to what the limit is for the Legislature to regulate, sort of, behavior, actions, of people out of state that affect Florida citizens? I mean, is there a limit?” Justice Jamie Grosshans asked Schenck, an assistant solicitor general.
“When an individual either commits a tort in the state, we think that is sufficient, or they commit an intentional act that they know will cause an intentional harm in that state, and I think that that’s the limit on the state’s power. … There does need to be some kind of genuine, bona fide harm in the state,” Schenck said.
Justice Charles Canady told Race’s lawyer, James Toscano, that Floridians have a “reasonable expectation” that they’re not being recorded without their permission.
“When I get on the phone and I’m talking to somebody I assume, unless they’ve told me, they’re not recording me, not that I would care, but some people might,” Canady said. “You’ve got a right in Florida not to be recorded surreptitiously.”
“I absolutely agree, if that’s two Florida residents having the conversation. But Florida is one of only 11 states that has all-party consent. I mean, I don’t think it’s reasonable to assume …,” Toscano said.
“Well, but that doesn’t make us chopped liver,” Canady interrupted.
Chief Justice Carlos Muniz appeared to struggle with the issue of where the recording and alleged violation took place.
“It seems to me the whole case really hinges on whether we think the tort occurred in Florida or not in Florida,” Muniz said.
But Toscano said the question was problematic.
“It’s not really a tort. It’s a statutory violation,” he said.
Couriel weighed in.
“Let me take a shot at this,” he said. “The truth of the matter is that what is recorded, this voice communication is just as recorded in Florida as it is in Ohio. … To me there is no other point at which it makes sense to draw the line other than that first place where it is heard,” he said.
But Muniz appeared unconvinced.
“There’s this sort of like, how do we metaphysically view the conversation and where it’s happening and whatever, but it seems like the whole point of this area of the law is to focus on what the defendant is doing, and the defendant is making the decision to record,” Muniz told Stepan. “But in terms of what the defendant is aware of, it’s all happening in Ohio.”
Stepan conceded that the “physical act” of the recording took place outside of Florida.
“His phone was in Ohio, but the defendant, at least in this case, he knew my client was a Florida resident,” he said.
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This article appears in May 9-15, 2024.
