Wiretap suit over transcript in public record dismissed

TEXAS–A federal District Court judge in Dallas ruled in mid- August that the federal wiretap statue cannot be constitutionally applied to prohibit a weekly newspaper from publishing the transcript of telephone conversations that were illegally intercepted and then read into the record at a public school board meeting.

Judge Jerry Buchmeyer of the federal District Court in Dallas granted the Dallas Observer’s motion for summary judgment. The judge said that liability cannot be imposed under the wiretap statute on media defendants who obtain and publish truthful information taken from public records, even though the media defendants may have known that the now-public information had originally been illegally obtained.

Carver Dan Peavy, a trustee for the Dallas Independent School District, used racial epithets and profanity in referring to other school board trustees, employees, teachers, the school superintendent, and candidates running for the school board in telephone conversations that were recorded in contravention of federal law, which prohibits interception of conversations by non-parties.

The recorded conversations were anonymously delivered to several school board trustees on the day of a regularly scheduled school board meeting. At the meeting the conversations were read into the official record and were thus available to the general public under the Texas Public Information Act.

Although the recorded conversations received extensive media attention following the meeting, those reports only provided a few examples of Peavy’s profanity and racial slurs. After receiving a copy of the transcript of the board meeting under the Texas Open Records Act, the Dallas Observer published the entire text of Peavy’s conversations.

Subsequently, Peavy resigned as trustee and sued the Dallas Observer and its publisher Peter Elkind. The suit alleged that by publishing the transcript knowing that it had been obtained through the illegal interception of a telephone call, the Observer violated the federal wiretap statute.

In granting the Observer’s motion for summary judgment, the judge said that “the interest in protecting the statutory privacy rights of Peavy, an elected official, is not compelling enough to warrant infringement on the constitutional rights of the Defendants to publish matters of paramount public import.”

The court recognized that the interest in privacy fades where the information involved is already available to the public. Here the transcript was available under the Open Records Act and the meeting at which the transcript was read was open to the public, the court noted. (Peavy v. New Times, Inc.; Media Counsel: Charles Babcock, Dallas)