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From the Fall 2000 issue of The News Media & The Law, page 18.
By Dan Bischof
In just the past two years, judges have faced a spate of lawsuits resulting from the media publishing the tape recordings done by third parties. Frequently, the cases involve the illegal dubbing of phone calls, and in Bartnicki v. Vopper, the U.S. Supreme Court will hear such a case on Dec. 5.
The Court, which denied certiorari in a similar case out of Louisiana last year, also has pending before it a petition for certiorari in a case with similar issues involving a member of Congress who forwarded an illegally recorded tape to the media.
The Bartnicki decision is expected to have a significant effect on how the news media obtain and use third-person recordings in reporting on issues of public concern. The case should also resolve a conflict between federal circuits about whether a person can be found liable for publishing an illegally recorded phone conversation, if the person who publishes it did not take part in the illegality.
In Peavy v. WFAA, the U.S. Court of Appeals in New Orleans (5th Cir.) ruled WFAA-TV in Dallas and investigative reporter Robert Riggs may be held liable for breaking the wiretapping law when the station used a recorded wireless phone call as the basis for its reporting despite knowing the recording was obtained illegally.
On the other hand, in Bartnicki the media defendants asserted they did not know a telephone recording was illegally obtained. The case arose from contract negotiations with teachers in a Wilkes-Barre, Pa., school district. Gloria Bartnicki, chief negotiator for the local teachers' union, spoke on her cellular phone with Anthony Kane Jr., a local teacher and president of the teachers' union, about teacher raises. During the conversation, Bartnicki made a comment about blowing off the front porch of a local school board member's house.
An unknown person intercepted the conversation, and a tape recording of the call was left in the mailbox of Jack Yocum, president of the local taxpayers' association. Yocum gave a copy of the tape to radio talk show hosts Fred Williams of WILK and Rob Neyhard of WARM. The tape was eventually broadcast simultaneously over WILK and WGBI-AM as part of a news and public affairs talk show and was aired on local television stations as well. Local newspapers also published transcripts of the call.
Bartnicki and Kane sued Yocum, Williams (whose legal surname is Vopper), WILK, and WGBI under both federal and state wiretapping and electronic communications laws. The federal district court in Scranton denied cross motions for summary judgment.
On appeal, the parties asked whether holding the defendants liable under the federal wiretapping law violates their First Amendment rights as members of the press. In its decision, the U.S. Court of Appeals in Philadelphia (3rd Cir.) held the First Amendment prohibits civil damages against someone who discloses an innocently received tape recording. The court saw the case as a balance between individual privacy interests and the right of the press to report on newsworthy items in the public interest. (See NM&L, Winter 2000)
The court found that holding reporters liable could have a chilling affect on the publication of information lawfully disclosed under the wiretapping acts. Reporters do not always know, the court wrote, the precise origin of the information obtained from sources. Inquiring whether the information comes from a lawful source could result in a cautious reporter declining to report on information of public concern.
In Peavy, Dallas-area resident Charles Harman began using a police scanner to listen to wireless telephone conversations of a neighbor, Carver Peavy, a trustee of the local school district, in December 1994. Harman began recording conversations in which Peavy allegedly discussed plans to unfairly interfere in the school district's award of an insurance contract and threatened Harman. Peavy used racial epithets, profanity and derogatory remarks to describe minority students and school district personnel.
Harman contacted WFAA-TV about Peavy's actions and said he had tape recordings to substantiate them. Paul Watler, an attorney representing WFAA, advised the reporter and station the wiretapping laws did not apply to cordless telephone conversations. Then the station obtained the tape recordings from Harmon and expressed an interest in future ones as well. However, Riggs, the reporter, and Watler later learned an amendment to the federal wiretap act protects cordless telephone conversations. According to Watler, the First Amendment would allow for the broadcast of the tapes because WFAA had not participated in the recording. Nonetheless, he advised the station to take a more conservative approach by returning the tapes and not broadcasting any portion of them.
Afterward, the station told Harman it would no longer accept his tape recordings. Harman continued to record Peavy's conversations. Later, the station reported Peavy's alleged plan to interfere in the contract award, but it did not broadcast any of the recorded conversations. The station used the contents of the conversation as the basis of its reporting, then confirmed some information with other sources.
Peavy was acquitted of bribery, conspiracy and tax evasion charges and subsequently sued Harman and WFAA. Although the district court ruled that the First Amendment protected the use of the conversations in the reports, the appellate court reversed. The federal appeals court decided the First Amendment would not protect the station because the reporter had "full knowledge of the circumstances of the interceptions and with some participation concerning the interceptions."
WFAA will file a petition for writ of certiorari with the U.S. Supreme Court before the end of October, said David Starr, counsel for the station's parent company.
The Bartnicki decision will also affect a federal wiretapping case in Washington, D.C. In Boehner v. McDermott, a Florida couple recorded a cellular phone conference call of Republican members of the House of Representatives discussing an ethics investigation of then-House Speaker Newt Gingrich (R-Ga.). The couple gave a copy of the tape to Rep. James McDermott (D-Wash.), the ranking Democrat on the House Ethics Committee. McDermott passed the tape on to The New York Times, The Atlanta Journal-Constitution and Roll Call, each of which published a story about the conversation.
Rep. John Boehner (R-Ohio), a member of the original conference call, sued McDermott for violation of the Electronic Communications Privacy Act. After the federal district court dismissed the case under the First Amendment, the appeals court reversed and remanded the case to the lower court. The U.S. Court of Appeals in Washington, D.C. (D.C. Cir.) ruled McDermott had to have known the tape was illegally made, noting, "If he did not thereby break the law, he was at least skirting the edge." (See NM&L, Fall 1999)
A petition for certiorari in Boehner is pending before the U.S. Supreme Court.
Last year, the U.S. Supreme Court let stand Keller v. Aymond, a Louisiana state appellate court decision which held two newspapers could be liable for broadcasting contents of an illegally recorded conversation, even though the conversation was itself broadcast at a news conference called by an unsuccessful candidate for state trial judge. The tape purportedly contained evidence of vote buying and corruption. (See NM&L, Spring 1999)