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    Oct 2014
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    Default Re: Two Party Consent State vs One Party Federal Law

    Quote Quoting Rlucius87
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    My question involves a law in the State of: Florida. I am aware that Florida is a two party consent state, meaning that it requires the consent of at least two people in a party for the recording of audio. To my knowledge, Federal law is one party consent. My question is: since the Federal government is above state law, can you simply appeal to the supreme court on federal law if you are prosecuted by a two party consent state for recording audio of another person in your personal proximity in a public place?
    You need to understand that the federal law on recording does not preempt state law. The federal law simply says that if you do not have the consent of at least one party to a private conversation and you record it you face prosecution by the feds. The law does not say you have any right to make a one party consent recording. Thus, states are free to adopt more restrictive laws on the matter if they choose. Florida has made that choice, so if you have the consent of one party but not all the parties the result is that the feds won't prosecute you because you didn't violate the federal law but the state could prosecute you because you violated state law.

    If you are prosecuted and convicted in a state court for this you must raise the federal law issue you have in the state court proceedings and then exhaust all your state appeals before you can seek appeal to the U.S. Supreme Court. The Supreme Court does not have to take that appeal, and fewer than 1% of requests for appeal to the Supreme Court are granted.

    If your federal issue is that you think the federal law trumps the state law the Supreme Court will not take that appeal since there is no conflict in the courts on that: the answer is clearly that the federal law does not preempt state law on this matter.

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