The messenger at risk

A case in the hands of the Supreme Court will determine liability of one who reports newsworthy events without checking legality of the source

From the Winter 2001 issue of The News Media & The Law, page 30.

By Dan Bischof

The U.S. Supreme Court heard arguments in December in Bartnicki v. Vopper, a case that likely will have a significant impact on the way the media obtain and use third-person recordings in reporting on issues of public concern. Bartnicki is the first major First Amendment press case the Court has decided since 1991, when it decided two cases involving press rights.

The Bartnicki decision should resolve a conflict among the federal appeals courts about whether a person can be found liable for publishing an illegally recorded phone conversation if that person did not participate in the illegal act. Bartnicki pits the media on one side — arguing that the First Amendment requires that they should not be held liable for publishing truthful matters of public interest — and private parties and the government on the other — arguing that there are privacy rights in personal phone conversations that trump First Amendment rights.

Until now, journalists have had little legal reason to be concerned with the sources of the information, so long as the information was truthful and of public interest. But the decision in Bartnicki could require journalists to ensure that source material was legally obtained, even where the media were not involved in the procurement.

It is a stance that seems repugnant to standards developed in cases like the “Pentagon Papers” controversy, in which the Supreme Court rejected the notion that the “communication” prohibited in the Espionage Act covered publication by the press. (New York Times Co. v. U.S.) In 1971, with a 6-3 decision, the Court ruled that even if a third person broke the law by taking government documents, the press could not be enjoined from publication.

“For journalists, then, the notion that liability may be imposed on them for doing nothing more or less than reporting truthfully about newsworthy events is deeply disturbing,” First Amendment attorney Floyd Abrams wrote in a friend-of-the-court brief in the Bartnicki case.

In Bartnicki, the media defendants have asserted that they did not know a telephone recording forwarded to them was illegally obtained. The identity of the person who made a recording of a phone conversation was unknown to the media and to the person who gave the recording to the media.

The case arose from contract negotiations with teachers in a Wilkes-Barre, Pa., school district. Gloria Bartnicki, chief negotiator for the local teachers’ union, had a conversation from her cellular phone with Anthony F. Kane Jr., discussing teacher raises.

During the conversation in May 1993, Bartnicki made unflattering remarks about the local school board. Kane — probably hyperbolically 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.”

An unknown person intercepted and recorded the conversation and left the tape in the mailbox of Jack Yocum, president of the local taxpayers’ association. Yocum gave a copy of the tape to Fred Williams of WILF and Rob Neyhard of WARM, two local radio stations. The tape was eventually broadcast simultaneously over WILK and 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 also published in newspapers.

Bartnicki and Kane sued Yocum, Williams, WILK, and WGBI in federal district court in Scranton under both federal and state wiretapping and electronic communications laws seeking compensatory and punitive damages. The district court certified questions to the federal appellate court, including whether subjecting the defendants to liability under the wiretapping statutes violates the First Amendment.

The legal ruling hinges on whether the radio stations or Yocum can be punished for “disclosing” the contents of the recording. The federal wiretapping acts hold civilly liable any person who “intentionally discloses, or endeavors to disclose, to any other person the contents of any wire, oral, or electronic communication, knowing or having reason to know that the information was obtained through the interception of a wire, oral, or electronic communication in violation of (the wiretapping acts.)”

The media argued that applying that law to their collecting and reporting matters of public interest violates the First Amendment. The U.S. Court of Appeals in Philadelphia (3rd Cir.) agreed.

Under the First Amendment, statutes that regulate a type of speech are given a strict standard of constitutional scrutiny. Such statutes are considered “content-based” and are almost always struck down, unless they are shown to be narrowly tailored to serve a “compelling” governmental interest. Statutes that do not regulate based on the content of speech, but have an incidental effect on speech, are considered “content-neutral.” Content-neutral statutes are given a lower level of scrutiny and have a greater chance of survival.

The appellate court applied an intermediate level of constitutional scrutiny to the statute because, while the provision affected speech, the burden was incidental, not direct. In ruling the First Amendment prohibited civil damages for disclosure of the innocently received tape recording, the Third Circuit held that the government’s interest in maintaining the confidentiality of phone conversations was outweighed by the press’s interest in reporting on matters of public interest.

The court thought the law would deter too much speech. It 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 Third Circuit found that such uncertainty could result in a “cautious reporter” electing not to report information of public concern.

At the Supreme Court on Dec. 5, 2000 the media argued that the court should not be concerned with the content-neutral or content-based distinction at all, arguing instead that a line of U.S. Supreme Court cases make clear that where a news organization publishes truthful information that it has lawfully obtained, the publication can only be punished if the action against it is narrowly tailored to fit a significant governmental interest.

“The legislature may directly prohibit the dissemination of such information only in those rare instances when doing so is necessary to vindicate a governmental interest ‘of the highest order,'” wrote Lee Levine, the attorney for Fred Vopper, who uses the name Fred Williams on the radio.

Attorneys for the plaintiffs and the solicitor general argued that the statute deserved intermediate scrutiny and that it was necessary to an important governmental interest — protecting privacy. More than 20 media organizations and associations signed an amicus curiae brief that argued the First Amendment bars application of the statute to the defendants.

The impact of the Supreme Court’s decision will depend on how broadly it is written. Some attorneys said the Supreme Court’s decision may be so sweeping that it will prohibit reporters from accepting and publishing any illegally obtained information, whether or not the person who obtained it violated the wiretapping acts.

“Much of the time, newsworthy information may be gathered by persons outside of a news organization, or is leaked from sources who may be violating some kind of legal obligation, be it a contract, a fiduciary duty, or a statute,” Kathleen A. Kirby, counsel for the Radio-Television News Directors Association, said. “Thus, the Supreme Court decision has the potential to extend well beyond wiretapping, and to transform the way reporters do investigative journalism.”

“Certainly (the decision) could give journalists pause about moving forward on a story unless they could track down original sources of information to determine whether or not it has been legally obtained, something many organizations, particularly local news organizations, are not equipped to do, and which in many instances involves complete guesswork,” Kirby said.

Others predicted the Court will deliver a narrower opinion.

“The Supreme Court has not been asked to address the question of the extent of the interaction between the reporter and source,” Edward J. Klaris, general counsel for The New Yorker said. “They’ve only been asked to decide whether the disclosure by the media of an illegally obtained phone call — no matter how the reporter or the media got it — is illegal.”

The High Court is being asked to look at other aspects of the question of use of wiretaps in two pending cases, Peavy v. WFAA and Boehner v. McDermott, which involved some source-reporter contacts. Because the court may yet decide to review these cases, the outcome of Bartnicki, which dealt with the receipt of the anonymous tape, may be limited, some attorneys say. It thus may be up to lower courts to determine whether reporters must ensure that information obtained from a known source was obtained legally.

“If (the justices) decide against media in this case and they reverse the Third Circuit then all bets are off because you don’t have to look at how much interaction between the reporter and the source there was,” Klaris said. “It doesn’t matter. It could be none, as in Bartnicki, and still there’s liability.”

Thus Bartnicki may well dispose of Peavy and Boehner.

In Peavy v. WFAA, 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, Carver Peavy, a trustee of the local school district, in December 1994. Harman began recording conversations in which Peavy 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. WFAA’s outside attorney Paul Watler 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 Watler, however, later learned that the federal Wiretap Act had been amended to protect cordless telephone conversations. Regardless, Watler suggested that the First Amendment would allow for the tapes to be broadcast because WFAA had not participated in the recording. He nonetheless advised that the more conservative approach would be to return the tapes and not broadcast any portion of them.

The station then told Harman that it would no longer accept his the tape recording, but Harman continued to record Peavy’s conversations. Later the station reported on Peavy’s wrongdoing, but did not play any part of the broadcast conversation in the report. The station disclosed some of the conversations’ contents.

After Peavy was acquitted of bribery charges, he 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.”

In Boehner v. McDermott, a Florida couple recorded a cellular phone conference call of Republican members of the U.S. House of Representatives discussing an ethics investigation of then-Speaker Newt Gingrich (R-Ga.). The couple gave a copy of the tape to Rep. James A. McDermott (D-Wash.), 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 ran a story.

Rep. John A. Boehner (R-Ohio), a member of the original conference call, sued McDermott for violation of the Electronic Communications Privacy Act. After a District of Columbia district court dismissed the case as violating the First Amendment, the D.C. Circuit Court reversed and remanded the case. The court ruled that McDermott had to have known the tape was illegally made, and, “If he did not thereby break the law, he was at least skirting the edge.”

A petition for certiorari is pending before the U.S. Supreme Court in both Peavy and Boehner.