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Newsgathering, publishing rights prevail over privacy

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  1. Libel and Privacy

    NMU         U.S. SUPREME COURT         Privacy         May 21, 2001    

Newsgathering, publishing rights prevail over privacy

  • A talk radio host did not violate a federal wiretapping law by broadcasting a conversation of public concern that an anonymous person illegally recorded, according to the Supreme Court.

The U.S. Supreme Court ruled on May 21 that the media cannot be held liable for publishing information of public concern that is obtained unlawfully by a source but where the media are blameless in the illegal interception.

The court ruled 6-3 in Bartnicki v. Vopper that First Amendment principles trumped the privacy concerns of a school teacher’s union member whose phone conversation with the union president was unlawfully recorded then published by local media.

“Although there are some rare occasions in which a law suppressing one party’s speech may be justified by an interest in deterring criminal conduct by another, this is not such a case,” Justice John Paul Stevens wrote in the majority opinion.

The Court also held that free speech interests outweighed individual privacy concerns, although it acknowledged that “the fear of public disclosure of private conversations might well have a chilling effect on private speech.”

The case arose from contract negotiations with teachers in a Wilkes-Barre, Pa., school district. Gloria Bartnicki, chief negotiator for the local teachers’ union, spoke on her cellular phone with Anthony Kane Jr., a local teacher and president of the teachers’ union, about teacher raises. During the conversation, Bartnicki made a comment about blowing off the front porch of a local school board member’s house. That tape was anonymously given to a local activist. He gave it to a radio station, which then broadcast it.

In ruling for public disclosure over private communications, Stevens supported “a profound national commitment to the principle that debate on public issues should be uninhibited, robust and wide-open.” Stevens also explained that the price of participation in public affairs “is an attendant loss of privacy.”

“We’re gratified the Supreme Court recognized the need to give greater weight to issues of public interest and that the court recognized that the need for public debate on matters of public interest outweighed personal privacy,” said Lucy Dalglish, executive director of the Reporters Committee for Freedom of the Press.

The majority acknowledged a similarity between Bartnicki and the landmark Pentagon Papers case in 1971, which held that the government could not halt publication of a secret defense department document revealed by a government employee. But the Court said the question in this case was even narrower: it only determined whether a publisher of information can be liable for publication when the source obtained the information unlawfully.

The Court refused to make any categorical decision about whether the media can ever be punished for publishing truthful information. Stevens wrote that avoiding such a broad decision was consistent with the Court’s longstanding position that “the future may bring scenarios which prudence counsels our not resolving anticipatorily.”

In a concurring opinion, Justices Stephen Breyer and Sandra Day O’Connor addressed their concerns that the case might be read too broadly.

“The Court does not create a ‘public interest’ exception that swallows up the statutes’ privacy-protecting general rule,” Breyer wrote. “Rather it finds constitutional protection for publication of intercepted information of a special kind” — where the public interest is “unusually high” and the privacy interest is “unusually low,” particularly because of the threat of physical harm.

While Bartnicki and Kane spoke, an unknown person intercepted the call, and a tape recording was left in the mailbox of Jack Yocum, president of the local taxpayers’ association. Yocum gave a copy of the tape to radio talk show hosts Fred Williams of WILK and Rob Neyhard of WARM. 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 local television stations as well. Local newspapers also published transcripts of the call.

Bartnicki and Kane sued Yocum, Williams (whose legal surname is Vopper), WILK, and WGBI under both federal and state wiretapping and electronic communications laws. The federal district court in Scranton, Pa., denied motions for summary judgment. The U.S. Court of Appeals in Philadelphia (3rd Cir.) held the First Amendment prohibits civil damages against someone who discloses an innocently received tape recording. The court saw the case as a balance between individual privacy interests and the right of the press to report on newsworthy items in the public interest.

The Reporters Committee for Freedom of the Press joined a friend of the court brief filed by more than 20 media outlets and associations. That brief urged the justices to follow the precedent of Florida Star v. B.J.F., a Supreme Court case that held that “where a newspaper publishes truthful information which it has lawfully obtained, punishment may lawfully be imposed, if at all, only when narrowly tailored to a State interest of the highest order.”

The majority seemed to follow that structure in deciding the issue. Typically, statutes that discriminate based on the content of speech are held to the highest level of judicial scrutiny and are frequently ruled unconstitutional. On the other hand, statutes that do not discriminate based on content often survive.

The Court here said the two-fold purpose of the federal law — that punishing a broadcaster in this case would remove an incentive for parties to intercept private conversations and would minimize the harm to persons whose conversations had been illegally intercepted — fell short of that higher standard.

The Court then applied the principle spelled out in Florida Star and an earlier case, Smith v. Daily Mail Publishing. In Florida Star, the Court held that the media could not be punished for the publication of lawfully obtained, truthful information unless the government’s interest was “of the highest order.”

The dissenters claimed those cases were distinguishable because there the information was obtained from the government, not from private persons and because the information was already publicly available.

“Neither this Daily Mail principle nor any other aspect of (similar Supreme Court) cases, however, justifies the Court’s imposition of strict scrutiny here,” Chief Justice William Rehnquist wrote in his dissent, which was joined by Justices Antonin Scalia and Clarence Thomas.

“Were there no prohibition on disclosure, an unlawful eavesdropper who wanted to disclose the conversation could anonymously launder the interception through a third party and thereby avoid detection,” Rehnquist wrote.

(Bartnicki v. Vopper; Media Counsel: For Vopper: Lee Levine, Levine Sullivan Koch, Washington D.C.; For media amici: Floyd Abrams, Cahill Gordon & Reindel, New York) DB

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© 2001 The Reporters Committee for Freedom of the Press

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