High court disposes of two wiretap appeals in light of recent decision

NMU U.S.

June 1, 2001

NMU

U.S. SUPREME COURT

Privacy

Jun 1, 2001

High court disposes of two wiretap appeals in light of recent decision

A decision in a lawsuit between two members of Congress has been vacated following the Supreme Court decision in a similar case.

The U.S. Supreme Court vacated one lower court decision that contradicts the court’s recent opinion in Bartnicki v. Vopper and denied review of a similar case. The court’s order will likely halt the lawsuit brought by Rep. John A. Boehner (R-Ohio) against Rep. James A. McDermott (D-Wash.), according to McDermott’s lawyer.

On May 29, the U.S. Supreme Court ordered that the U.S. Court of Appeals in Washington (D.C. Circuit) decision in Boehner v. McDermott be vacated and the matter be remanded to the appellate court for further action in light of the May 21 Bartnicki decision. In the same order, the Court also denied certiorari in Peavy v. WFAA, in which an appellate court held a media organization could be held liable for illegal wiretapping because it knew of the unlawful activity but nonetheless used the recording.

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-Speaker Newt Gingrich (R-Ga.). The couple gave a copy of the tape to McDermott, the ranking Democrat on the Ethics Committee. McDermott passed the tape on to The New York Times, The Atlanta Journal-Constitution and Roll Call. Each newspaper ran a story about the conversation.

Boehner, a member of the original conference call, sued McDermott for violating of the Electronic Communications Privacy Act. After a district court dismissed the case as violating the First Amendment, the court of appeals reversed the decision. McDermott then filed a petition for review by the U.S. Supreme Court.

McDermott’s lawyer, Frank Cicero, told the Associated Press on May 29 that he expected the D.C. appellate court to now rule that Boehner’s case may not proceed.

“I think it should be over,” Cicero told the AP. “I’m a little surprised that they are twisting and turning and trying to keep this case going.”

The Supreme Court decided in Bartnicki v. Vopper that the First Amendment trumped privacy interests in a civil lawsuit under the federal wiretapping statute, in a case that has striking similarities to the Boehner case. But the Bartnicki decision was fractured, with two justices writing a concurrence that may limit its holding to its particular facts. Lawyers for Boehner thus might be able to emphasize the factual differences between the cases to keep the case going.

In Bartnicki, the Supreme Court ruled that a radio talk show host could not be held liable for a violation of a federal wiretapping statute when the station was uninvolved in the unlawful recording of a cellular phone call between a school teacher and union negotiator.

The Bartnicki court was clearly sympathetic to the privacy interests of people making personal phone calls, but nonetheless ruled that “privacy concerns give way when balanced against the interest in publishing matters of public importance.”

The also majority emphasized that the principals in the phone conversation were public officials discussing matters of public concern. “One of the costs associated with participation in public affairs is an attendant loss of privacy,” Justice John Paul Stevens wrote.

Further, the Court’s decision was premised on three important factors: the media, although blameless in the illegal recording, “had reason to know it was unlawful,” the media found out about the interception after it occurred, and “the subject matter of the conversation was a matter of public concern.”

Justices Stephen Breyer and Sandra Day O’Connor issued a concurrence that stresses other facts unique to the Bartnicki case that may limit its precedential value. For example, the phone call participants had no legitimate interest in keeping the contents of this conversation private because they spoke of acts of violence regarding the public issue of the teachers’ union negotiations.

“The subject matter of the conversation at issue here is far removed from that in situations where the media publicizes truly private matters,” Breyer wrote.

The main difference between Boehner, Bartnicki and Peavy v. WFAA is that in Peavy the “media defendant in fact participated in the interception at issue,” Stevens wrote in a footnote in Bartnicki.

In Peavy, the U.S. Court of Appeals (5th Cir.) ruled that a television station, Dallas’ WFAA-TV, and investigative reporter Robert Riggs may be civilly liable because they knew that recordings of a wireless phone call were made in violation of the law, but they nonetheless continued to use them.

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

Harman contacted WFAA-TV about Peavy’s actions and said he had tape recordings to substantiate them. After some discussions with an attorney, WFAA elected to disclose some of the tapes’ contents. Peavy sued Harman and WFAA.

Although the district court ruled in summary judgment that the First Amendment protected the use of the conversations in the reports, the appellate court reversed. The 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.”

Because the U.S. Supreme Court has denied certiorari in Peavy, the Fifth Circuit decision will stand.

(Boehner v. McDermott; Peavy v. WFAA) — DB

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