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Contents of innocently received audiotapes can be published

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From the Winter 2000 issue of The News Media & The Law, page 26.

From the Winter 2000 issue of The News Media & The Law, page 26.

Innocently received contents of an illegally taped conversation can be published or broadcast by the news media without subjecting the media to liability under federal wiretap laws, according to a federal appellate court.

The U.S. Court of Appeals in Philadelphia (3rd Cir.) in late December found media outlets that legally receive and publish or broadcast information obtained through an illegal interception of a private conversation are not liable for damages under the federal wiretap statute, stating “the government’s significant interest in protecting privacy is not sufficient to justify the serious burdens the damages provision of the Wiretapping Acts place on free speech.”


For two years in the early1990s, teachers in the Wyoming Valley West School District in Pennsylvania struggled through contentious negotiations over the terms of a new teachers’ contract. The negotiations between the school district and the teachers’ union garnered significant public attention and local media coverage throughout those two years.

In May 1993, Gloria Bartnicki, who was the chief negotiator for the teachers’ union, spoke with Anthony F. Kane Jr. on her cellular phone. Kane, a teacher at Wyoming Valley West High School, served as president of the local teachers’ union at the time. The two spoke about raises for teachers, and Kane said, “If they’re not going to move for 3 percent, we’re gonna have to go to their, their homes . . . to blow off their front porches, we’ll have to do some work on some of those guys.”

The conversation was intercepted and recorded by an unknown person, and a recording of it was left in the mailbox of Jack Yocum who, as president of a local taxpayers’ association formed specifically to oppose the union’s proposals, also was heavily involved in the negotiations.

Yocum gave a copy of the tape to Fred Williams of WILK Radio in Wilkes-Barre and Rob Neyhard of WARM Radio in Scranton. The tape eventually was broadcast simultaneously over WILK and Scranton’s WGBI-AM as part of a news and public affairs talk show and was aired on some local television stations as well. Written transcripts were published in local newspapers.

Bartnicki and Kane subsequently sued Yocum, Williams, WILK, and WGBI in federal District Court in Scranton alleging violation of federal and state wiretapping and electronic communications laws, and seeking both compensatory and punitive damages. The District Court denied requests from both sides for judgment in their favor in June 1996 and refused to reconsider its denial in November 1996. In its November decision, the District Court specifically held that imposing liability would not violate First Amendment principles of free speech or free press. The radio stations appealed to the U.S. Court of Appeals in Philadelphia (3rd Cir.).

The radio stations argued to the appellate court that applying the damages provision of the federal Wiretapping Acts to hold them liable for disclosing the conversation would violate the First Amendment. Furthermore, they asserted that U.S. Supreme Court case law mandates that a court carefully address the tension created between the First Amendment and the right to privacy when the dissemination of private information is punished.

According to the stations, the information disclosed in the illegally taped conversation between Bartnicki and Kane was lawfully obtained because neither Yocum nor the media outlets participated in the interception or violated any law by receiving the information.

Bartnicki and Kane countered that the information was illegally obtained because the original interception of the conversation was illegal, as neither Bartnicki nor Kane consented to the taping. Additionally, they argued that the application of the statute to the radio stations need not be subjected to a careful First Amendment analysis.

In its December 1999 decision, the three-judge panel of the federal appellate court ruled that application of the federal wiretap law to the news media violated the First Amendment.

The court noted that the media organizations innocently received the illegally intercepted information, and distinguished its decision from the D.C. Circuit’s late September ruling in Boehner v. McDermott, where a member of Congress was held to be subject to damages under the federal wiretap statute for turning over audiotapes to the news media. The tapes were of a conversation between former House Speaker Newt Gingrich and other Republican leaders.

Although the majority of the Third Circuit panel found in late December that Boehner does not necessarily present the same issue because there was no effort in that case to impose civil damages on The New York Times and other newspapers that reprinted the contents of Gingrich’s conversation, it did hold that the wiretapping acts “may not constitutionally be applied to penalize the use or disclosure of illegally intercepted information” when the media does not “participate in or encourage” the illegal interception.

In Boehner, the D.C. Court of Appeals in Washington, D.C. (D.C. Cir.), found that by accepting an illegally intercepted tape of a telephone conversation from a Florida couple that intercepted the call with a scanner, Congressman Jim McDermott (D-Wash.) voluntarily assumed a “duty, if not of ‘confidentiality,’ then of nondisclosure.” The court found “The duty stemmed of course from every citizen’s responsibility to obey the law, of which [the federal wiretap law] is a part.” That court found that the federal wiretap laws did not violate First Amendment principles of free press and free speech under the circumstances presented to it.

The Third Circuit concluded that First Amendment free speech and press concerns could not be ignored, even if the statute in question was designed to protect individual privacy and even if the statute did not outlaw speech based on its content.

The innocent receipt of the illegally taped conversation between Bartnicki and Kane limited the court’s analysis, and the court was careful to note that the imposition of liability under federal or state wiretap laws upon “an individual or radio stations who did participate in the interception and thereafter disclosed the intercepted material is not before us.”

In finding it unconstitutional to punish the innocent receipt and subsequent disclosure of illegally recorded conversations, the court concluded that the government’s “desired effect” of protecting individual privacy can be accomplished by punishing “the responsible parties,” rather than by punishing those who innocently received and published the illegal recording. “All that is at issue is the application of those [wiretap] statutes to punish members of the media who neither encouraged nor participated directly or indirectly in the interception, an application rarely attempted,” Judge Dolores Korman Sloviter wrote for the panel majority.

Judge Louis Pollak dissented from Sloviter’s majority opinion. While Pollak agreed that the First Amendment must not be ignored in the application of wiretap laws to members of the media, he found that the potential burden of liability on the media had been overstated by the majority.

Pollak wrote, “One would suppose that a responsible journalist — whether press or broadcast — would be unlikely to propose publication of a transcript of an apparently newsworthy conversation without some effort to insure that the conversation in fact took place and to authenticate the identities of the parties to the conversation.” He asserted that through such efforts the question of whether the conversation had been recorded lawfully “would seem naturally to arise.” (Bartnicki v. Vopper)