Bartnicki has its day before the High Court

December 5, 2000

NMU

WASHINGTON, D.C.

Privacy

Dec 5, 2000

Bartnicki has its day before the High Court

The Supreme Court justices heard arguments on whether the federal wiretap act’s restrictions on publication of the contents of an illegally recorded telephone call violate the First Amendment.

U.S. Supreme Court justices were openly skeptical of arguments made by both sides during arguments on Dec. 5 in a case which applies the federal wiretapping statute to people who disseminate — but do not make — illegal wiretaps. The case, Bartnicki v. Vopper, asks whether applying the wiretapping act’s civil liability sections to defendants who disseminated recordings made illegally by another person violates the First Amendment.

The case is expected to have a significant impact on the media because the decision could dictate whether journalists accept and publish recordings made by others. The decision will also likely affect the outcomes of two other federal cases wrestling with the same issues.

The dispute arose out of contract negotiations in a school district in Wilkes-Barre, Pa. Gloria Bartnicki, chief negotiator for the teachers’ union, spoke by telephone with Anthony Kane, president of the teachers’ union. An unknown person surreptitiously recorded the call and deposited it in the mailbox of Jack Yocum, president of the local taxpayers’ association. Yocum passed it on to Fred Williams (aka Fred Vopper), a radio talk show host, who broadcast the tape on WILK and WGBI as part of a news and public affairs talk show. Portions of the tape recorded phone call were also aired by local television stations and newspapers published excerpts of the conversation. During the call, Kane discussed negotiation tactics and said, “we’re gonna have to go their homes…to blow off their front porches, we’ll have to do some work on some of those guys…”

Bartnicki and Kane sued Yocum, Williams and the radio stations in federal court for violating federal and state wiretapping statutes. On Dec. 5, the U.S. Supreme Court was called on to decide whether application of the wiretapping statute to parties that did not actually make a recording violated the First Amendment.

Solicitor General Seth Waxman and plaintiffs’ attorney Jeremiah Collins argued that the statute was subject to intermediate constitutional scrutiny because the law does not discriminate on the basis of particular kinds of speech. Statutes examined under the lens of the highest level of analysis — strict scrutiny — most demonstrate a compelling governmental interest to be upheld.

“There is no suggestion here, unlike the Pentagon Papers case, or the Florida Star line of cases of a censorial motive by the government,” Waxman said, distinguishing two other Supreme Court cases involving the suppression of a particular kind of speech. In Florida Star, the Court held that a newspaper that publishes truthful information, which it lawfully obtained, may only be liable, if at all, when the law is narrowly tailored to a state interest of the highest order.

“What you’re doing here,” Justice Anthony Kennedy said to Waxman in disagreement, “is suppressing speech that’s valuable to the public.”

Justice Sandra Day O’Connor asked Collins early in his argument why the court should focus on the method that is used to obtain the information, as opposed to the content itself. And why, she asked, extend punishment to someone who subsequently passes on the information but did not take part in the illegality?

“There is a vital interest in people having private places in their lives where a stealthy intruder cannot come in,” Collins said.

He described for the court how his client felt “violated in front of 100,000 people” when the tape was broadcast, and argued that the recording and disclosure harmed an important governmental interest.

Kennedy asked whether if upon hearing the broadcast and then describing it to his wife he would violate the statute. Collins said that such “far downstream” disclosures were not at issue. The justices returned to the issue of the extent of liability when Waxman argued. The solicitor general, who represents the United States, said once the information reaches the public realm, any future disseminators would not be liable. But Yocum’s attorney, Thomas Goldstein, suggested that such an analysis was also ambiguous. Disclosures to new sections of the country, for example, might expose a subsequent disseminator to liability, he said.

Williams’ attorney, Lee Levine, argued that the dissemination of truthful information about matters of public concern receives the full protection of the constitution regardless of any content the statute may regulate. Levine relied on the principle created by the Daily Mail case, which states the media should not be punished for the accurate dissemination of information of public significance where it had played no part in any illegal act.

“I don’t believe that content neutrality is a factor when you’re talking about application of the Daily Mail principle,” Levine said.

The issue of privacy appeared as an undercurrent throughout the arguments. Waxman and Collins argued that applying the wiretapping act furthers an important governmental interest: ensuring the privacy of private cellular phone conversations. Several justices clearly embraced the idea.

Justice Stephen Breyer analogized the facts of the case to a thief who breaks into a house and steals a diary. Should a newspaper be held liable, he pressed Levine, for publishing the contents of the diary even if it did not actually participate in the theft? No, Levine said.

“Then I don’t see how you’re going to have privacy left,” Breyer said. “I mean, what kind of privacy is there if people can break into your house, steal all your information, it can be published in the newspaper and you can’t get any damages from the newspaper?”

Justice Antonin Scalia, who said he did not use a wireless phone when discussing court business because he does not know who might be eavesdropping, suggested that failing to punish the eavesdropper actually inhibits personal speech.

The Court also debated whether punishing disseminators of the illegally recorded conversation would create a disincentive to engage in illegal wiretapping, and would “dry up” a market for the illegal recordings. Levine argued no credible evidence exists that such a market exists and that punishing disseminators would have the effect of drying up the market even if it existed. Levine also suggested Congress could create harsher penalties for violating the wiretapping statute. Waxman sharply disagreed and argued that punishing the disseminators would serve as a deterrent to future wiretap violations.

The justices’ discussion of assigning liability to disseminators was fueled by the fact that often times the interceptor is unknown and therefore goes unpunished. “Here we’re talking about an interception that is almost impossible to detect,” Waxman said, echoing earlier comments of Chief Justice William Rehnquist and Scalia.

In the lower courts, the district court denied cross motions for summary judgment and then certified questions of law to the U.S. Court of Appeals in Philadelphia (3rd Cir.) as to whether application of the wiretapping statute’s civil liability sections to Yocum and Williams violated the First Amendment.

The Third Circuit held the First Amendment prohibited civil damages for disclosure of the innocently received tape recording. The court noted that it “is likely that in many instances these provisions will deter the media from publishing even material that may lawfully be disclosed under the Wiretapping Acts.”

Pointing out that reporters do not always know the “precise origins of information” they rely upon, and whether the information “stems from a lawful source,” the Bartnicki appellate court found that such uncertainty could result in a “cautious reporter” electing not to report information of public concern.

Goldstein urged the Court to adopt the reasoning of the Third Circuit. He said the appellate court’s decision, “left in place, by and large, the redisclosure prohibition, but recognized that when the final disclosure is on a question of public significance, and is by a person completely uninvolved in the illegal interception, then the speech rights outweigh.”

The Reporters Committee for Freedom of the Press signed on to an amicus curiae brief filed on behalf of media organizations in the case.

(Bartnicki v. Vopper; Media Counsel: Lee Levine, Levine Sullivan & Koch, Washington, D.C.) — DB

Related stories:

Return to: RCFP Home; News Page

Stay informed by signing up for our mailing list