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Court rejects First Amendment defense for wiretap violations

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  1. Libel and Privacy

    NMU         FIFTH CIRCUIT         Privacy         Aug 17, 2000    

Court rejects First Amendment defense for wiretap violations

  • A federal appellate panel found a television station and its investigative reporter in violation of federal and state wiretap laws for producing and airing a series of reports based on information from illegally obtained tape recordings.

A Texas television station and one of its reporters violated parts of federal and state wiretap laws when they procured and used illegal tape recordings of a wireless telephone conversation, a panel of the U.S. Court of Appeals in New Orleans (5th Cir.) ruled July 31.

The television station, Dallas’ WFAA-TV, and investigative reporter Robert Riggs may be civilly liable under the laws because they knew the recordings were made in violation of the law but they nonetheless continued to use them, the court said.

In an opinion by Judge Rhesa Barksdale, the appellate panel reversed and vacated several rulings for summary judgment in favor of the TV station and Riggs, affirming only a ruling that dismissed a federal damages claim against the two for enticing a third party to make the illegal tape recordings. The case has been remanded back to the U.S. District Court in Dallas.

In December 1994, Dallas-area resident Charles Harman began using a police scanner to listen to wireless telephone conversations by a neighbor, Carver Peavy, a trustee of the local school district. Harman began recording conversations in which Peavy allegedly discussed plans to unfairly interfere in the school district’s award of an insurance contract and threats against Harman.

Harman contacted the WFAA about Peavy’s actions and said he had tape recordings to substantiate them. WFAA’s attorney advised the reporter and station that cordless telephone conversations were not covered by the wiretap laws, so they obtained the tape recordings from Harmon and told him that they would be interested in future ones as well. Riggs and the station’s counsel, however, later learned that the federal Wiretap Act had been amended to protect cordless telephone conversations. The TV station then told Harman that it would no longer accept his the tape recording, but Harman continued to record Peavy’s conversations.

WFAA’s counsel suggested that the First Amendment would likely insulate the station from liability under the wiretap laws, but he suggested that the station not air the tapes, return the originals, and not disclose their contents or confront witnesses without being able to obtain the same information from independent sources first.

Without broadcasting any portion of the tapes, WFAA aired a series of articles on Peavy’s alleged wrongdoing during the summer of 1995. Peavy and an associate who was also recorded on Harman’s tapes, Eugene Oliver, were indicted for bribery, but they were later acquitted. Both Peavy and Oliver filed lawsuits against WFAA and Riggs in October 1996, alleging violations of the wiretap laws and civil conspiracy.

The district court dismissed the case, finding that the First Amendment ultimately protected their right to use the tapes and to broadcast a report based on them. But the appellate court said that the First Amendment protected the disclosure of tape recordings obtained only by legal or not obviously illegal means.

(Peavy v. WFAA; Media Counsel, Thomas Leatherbury, Dallas) BB

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