Possession and publication

August 1, 2012

Journalists should be aware that wiretap laws raise issues beyond just whether they have met consent requirements. The federal law and many state laws explicitly make it illegal to possess — and particularly to publish — the contents of an illegal wiretap, even if it is made by someone else. Some states that allow recordings make the distribution or publication of those otherwise legal recordings a crime.

The 1986 Electronic Communications Privacy Act (amending the federal wiretap law) makes it illegal to possess or divulge the contents of any illegally intercepted communication.

The U.S. Supreme Court ruled in May 2001 that several media defendants could not be held liable for damages under the federal statute for publishing and broadcasting information obtained through an illegal interception of a private conversation.

The case arose from a cell-phone conversation in Pennsylvania about contract negotiations for local school teachers. During the conversation, Anthony F. Kane, Jr., president of the local teachers’ union, told Gloria Bartnicki, a union negotiator, that if teachers’ demands were not met, “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.” While Bartnicki and Kane spoke, an unknown person illegally intercepted the call, and a tape recording was left in the mailbox of a local association leader. The association leader gave a copy of the tape to two radio talk show hosts, who broadcast the tape as a part of a news show. Local television stations also aired the tape, and newspapers published transcripts of the conversation.

Bartnicki and Kane sued some of the stations and newspapers that had disclosed the contents of the tape. The case made its way to the Supreme Court, which found that First Amendment principles, which support a commitment “that debate on public issues should be uninhibited, robust, and wide-open,” trumped the privacy concerns of the union leaders.

In ruling that disclosure of a matter in the public interest outweighed claims of privacy, the majority of the Court supported “a profound national commitment to the principle that debate on public issues should be uninhibited, robust and wide-open.” The majority explained that those who participate in public affairs have a diminished expectation of privacy, especially when they propose to carry out wrongful conduct.

The case was a significant win for the media, but its implications for newsgatherers are still not entirely clear. The Court’s decision was premised on three factors: the media did not engage in or encourage the illegal recording, the topic of the intercepted conversation was of public concern and the conversation involved proposed criminal acts. The Court did not indicate whether disclosure by the media under different circumstances would be considered legal. (Bartnicki v. Vopper)

The U.S. Court of Appeals in Boston (1st Cir.) decided in 2007 in Jean v. Massachusetts State Police that the First Amendment prevented Massachusetts law enforcement officials from interfering with an individual’s Internet posting of an audio and video recording of an arrest and warrantless search of a private residence, even though the poster had reason to know at the time she accepted the recording that it was illegally recorded.

The Court applied Bartnicki and determined that the state’s interest in protecting the privacy of its citizens — encouraging uninhibited exchange of ideas and information among private parties and avoiding suspicion that one’s speech is being monitored by a stranger — was less compelling in this case than in Bartnicki, in which it was not given much weight.

The Court of Appeals in Jean also considered two factors that it found weighed in favor of First Amendment protection for the publisher: the identity of the interceptor was known, providing less justification to punish the publisher than in Bartnicki where the interceptor was unknown, and the publisher of the tape was a private citizen.

In another case to follow Bartnicki, decided in 2011, a federal court in Illinois held that publishing a tape of a woman being arrested without her consent is protected under the First Amendment. Eran Best, who was filmed being arrested during a traffic stop, did not consent to the tape appearing on the reality show Female Forces.

Best sued the officer and media companies responsible for the taping and broadcast of her arrest under the Illinois right of publicity statute, arguing that her identity had been used commercially without her consent. The court, relying in part on Bartnicki, held that because a tape of an arrest involved a “truthful matter of public concern,” the First Amendment-based right to broadcast it outweighed Best’s privacy rights. (Best v. Berard)

The Illinois court partly relied on an important First Amendment decision from 2011, the Supreme Court case Snyder v. Phelps, to support its argument that the tape had captured a matter of public concern. In Snyder, the father of a deceased marine sued the Westboro Baptist Church for intentional infliction of emotional distress, after the church picketed his son Matthew Snyder’s funeral.

The Supreme Court held that because the Westboro Baptist Church’s protest involved speech about a matter of public concern, it was protected by the First Amendment, and Snyder’s father would need to prove actual malice in his lawsuit for intentional infliction of emotional distress against the Westboro Baptists, making it much hard for Snyder’s father to succeed.

Taken together, Bartnicki and Snyder may suggest broad protection for the press against laws that prohibit publishing the contents of an illegal wiretap. Bartnicki held that when broadcasting the tape of an illegally recorded conversation, the First Amendment right to publish a matter of public concern could outweigh the privacy rights of those recorded. Snyder, in turn, demonstrated that a very broad range of content can be considered to be of public concern—including even a highly offensive protest directed at a private funeral. But until more such controversies work their way through the courts, the boundaries of the right to publish the contents of an illegal recording will remain unclear.