Present from justices may signal end of party

From the Summer 2001 issue of The News Media & The Law, page 9.

By Tony Mauro

The Supreme Court does not normally throw birthday parties for its own precedents. But when it handed down the decision in Bartnicki v. Vopper in May, in a sense it was celebrating the 30th anniversary of its Pentagon Papers decision, known officially as New York Times Co. v. United States.

Or was it a farewell party?

In Bartnicki, as it did 30 years ago, the court embraced the right of the press to report on matters of public concern without government interference — even when the source of the media’s information obtained it illegally. The Pentagon Papers case vindicated the decision by the Times, The Washington Post and others, to print the classified Pentagon history of the Vietnam War, purloined by Daniel Ellsberg. It was one of the most significant First Amendment victories ever for the press.

In Bartnicki, the winner was less exalted: Fred Vopper, a Pennsylvania radio show host who aired the tape of an illegally intercepted cellular phone conversation between two Pennsylvania teachers’ union officials at the height of a tense labor dispute. The conversation, taped by an unknown person, included some intemperate threats to “blow off their front porches,” referring to school board members.

Unlike some commentators who dismissed Bartnicki as an oddball case, the court saw a direct link with its Pentagon Papers precedent and cited it with praise. The same recognition of the public interest in receiving news about important events animated both cases. And Bartnicki is a cause for celebration in its own right, a 6-3 decision in support of the press even at its unruly, thumb-in-your-eye worst — or best.

But Bartnicki may well turn out to be a gift to the media with strings attached. Or, more precisely, it might be the last gift to the media from the Supreme Court for a very long time.

Read closely, Bartnicki is a worrisome warning to the press — an admonition that news organizations’ increasing invasiveness, their inattention to the personal privacy of those they cover, are wearing out their welcome with the nation’s highest court.

One of the most important constitutional developments of the last century was the Supreme Court’s expansive view of freedom of the press. From Near v. Minnesota through New York Times v. Sullivan, the Pentagon Papers case and beyond, the court has shown that it “gets it” when it comes to the free press clause of the First Amendment. It understands that even when the press messes up, the First Amendment gives it the breathing space it needs to flourish as a check on the excesses of government. With that generous understanding from the court, the press has indeed thrived and grown into the major force in society that it is today.

The biggest threat to that constitutional trend line is the increasing potency of privacy as a principle in the court’s jurisprudence.

Bartnicki is the first case in a decade that involved classic First Amendment rights of a media player (in this case a radio broadcaster). But there have been other cases in recent years in which privacy has trumped other interests that included those of the press. Just in the last several years, Wilson v. Layne (involving media ride-alongs with police), Los Angeles Police Department v. United Reporting Publishing, (on the commercial use of police blotter information) and Reno v. Condon (endorsing the privacy of drivers’ license information) were all fought on non-First Amendment grounds. But in all three cases, with a nod toward the privacy interests that were asserted, the court shut the door on public access. The press lost, even if indirectly.

In Bartnicki, it seems clear that the press came perilously close to losing directly. Even the majority opinion, written by Justice John Paul Stevens, gave privacy almost as much weight as freedom of press and expression. “Privacy of communication is an important interest,” Stevens wrote, adding that the federal wiretap law at issue in the case is “intended to protect that interest, thereby encouraging the uninhibited exchange of ideas and information among private parties. . . . Accordingly, it seems to us that there are important interests to be considered on both sides of the constitutional calculus.”

Only the fact that the intercepted conversation involved the teachers’ negotiations, “unquestionably a matter of public concern,” in Stevens’ words, tipped the balance in favor of the talk show host. Ominously, Stevens said the decision did not resolve whether “disclosures of trade secrets or domestic gossip or other information of purely private concern” would enjoy as much First Amendment protection as Vopper’s broadcast.

A concurring opinion by Justices Stephen Breyer, joined by Sandra Day O’Connor, showed even less sympathy for the press interest at stake. Breyer expressed concern about the loss of privacy in phone conversations. And he wrote that the broadcast should be protected by the First Amendment mainly because the conversation that was aired involved “a matter of unusual public concern, namely a threat of potential physical harm to others.”

The clear implication was that if the intercepted conversation only involved negotiating strategy, with no mention of exploding porches, Breyer and O’Connor would have voted against the talk show host. And if they did, the vote would have been 5-4 in favor of punishing Fred Vopper for airing the intercepted tape.

In the future, Breyer admonished, “The Federal Constitution must tolerate laws of this kind. . . . The Constitution demands legislative efforts to tailor the laws in order reasonably to reconcile media freedom with personal, speech-related privacy.” If Breyer thinks that kind of tailoring will be easy, he must not view the press interest as pre-eminent — or very important at all.

We should savor the victory in Bartnicki, but we should consider ourselves forewarned. We won one in Pentagon Papers, and we won one in Bartnicki. But in a battle as yet unforeseen between the press and privacy, we should not expect to win another one.

Tony Mauro, Supreme Court correspondent for Legal Times and American Lawyer Media, is a member of the steering committee of The Reporters Committee for Freedom of the Press.