The U.S. Supreme Court agreed in June 2000 to decide the constitutionality of a federal law that punishes anyone who discloses the contents of an illegally intercepted wire communication. Bartnicki v. Vopper, 200 F.3d 109 (3rd Cir. 2000), cert. granted, 120 S. Ct. 2716 (June 26, 2000) (Nos. 99-1687, 99-1728).

    The case arose out of bitter contract negotiations in Wyoming, Pa., between a local school district and the teachers union. Jack Yocum, president of the Wyoming Valley West Taxpayers Association, received a tape of an intercepted cell phone conversation between Anthony Kane, president of the local teachers union, and Gloria Bartnicki, chief negotiator for the union. Yocum gave the tape to Fred Williams, a.k.a. Frederick Vopper, who aired some of the conversation on his local radio show.

    Bartnicki and Kane sued Yocum, Vopper, and two radio station defendants under both federal and state law -- the Electronic Communications Privacy Act and the Pennsylvania Wiretapping and Electronic Surveillance Control Act. Both laws provide for criminal and civil penalties for individuals who disclose the content of wire communications if they have reason to know the information was obtained illegally. The defendants argued that holding them civilly liable for the release of truthful information on a matter of public importance violates the First Amendment.

    U.S. district court Judge Edwin M. Kosik rejected the defendants’ motion for summary judgment, finding that "a violation of these acts can occur by the mere finding that a defendant had a reason to believe that the communication that he disclosed or used was obtained through the use of an illegal interception." Judge Kosik determined that the challenged provisions were generally applicable laws that did not single out the press.

    On appeal, a divided three-judge panel of the U.S. Court of Appeals for the Third Circuit disagreed in Bartnicki v. Vopper, 200 F.3d 109 (3rd Cir. 2000). Writing for the majority, Judge Dolores Sloviter determined that the law was content neutral, citing the United States position that the law’s fundamental purpose was to "maintain the confidentiality of wire, electronic, and oral communications."

    However, the application of the law to parties who did not participate in the illegal interception would "deter significantly more speech than is necessary to serve the government’s asserted interest," Judge Sloviter reasoned. "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," Judge Sloviter wrote. "Reporters often will not know the precise origins of information they receive from witnesses and other sources nor whether the information stems from a lawful source."

    Judge Louis Pollack dissented, writing that the important First Amendment values at stake in the case "are countered by privacy values that are of comparable -- indeed kindred -- dimension."

    After a petition for en banc review was denied, the plaintiffs and the U.S. Government, which had intervened to defend the constitutionality of the federal law, petitioned for writ of certiorari. The cases (consolidated June 26) are Bartnicki v. Vopper (No. 99-1687) and United States v. Vopper (No. 99-1728).

    On Dec. 5, 2000, the Supreme Court heard oral argument in the case. The justices asked probing questions on each side, recognizing the clash between privacy and free-speech interests. For example, Justice O’Connor questioned counsel for the petitioners: "But why extend liability to a subsequent user who didn’t do anything wrong?"

    Several justices appeared sensitive to the notion that the law suppressed not only the speech of the interceptor, but also a subsequent discloser. Justice Souter noted that the wiretap law resulted in the complete suppression of speech, while Justice Kennedy commented that "there is no precedent for punishing the discloser." However, the justices also appeared to recognize the privacy interests at stake in the case. Justice Breyer at one point exclaimed: "What kind of privacy is there?"

Circuit Split

    The High Court may well have agreed to hear the case in part because the U.S. Court of Appeals for the District of Columbia Circuit reached a different conclusion in Boehner v. McDermott, 191 F.3d 463 (D.C. Cir. 1999). In McDermott, a divided three-judge panel of the D.C. Circuit on Sept. 24, 1999 rejected a First Amendment challenge to the federal law by Rep. James McDermott (D-Wash.). Rep. McDermott had released a pirated recording of a cell phone call by Rep. John Boehner (R-Ohio) to the New York Times and other newspapers.

    "Eavesdroppers destroy the privacy of conversations," Judge A. Raymond Randolph wrote for the majority. "Unless disclosure is prohibited, there will be an incentive for illegal interceptions." Judge Randolph distinguished between the media and Rep. McDermott, an individual. Judge Randolph intimated that Rep. McDermott engaged in no speech when he disclosed the information. "When a newspaper publishes, it engages in speech," he wrote.

    The D.C. Circuit case has been appealed to the U.S. Supreme Court. Observers predict the High Court will hold McDermott v. Boehner (No. 99-1709) until its decision in Bartnicki. Meanwhile, after the Supreme Court granted cert. in Bartnicki, the U.S. Court of Appeals for the Fifth Circuit upheld the federal wiretap law in a July 31 ruling. That decision has also been appealed to the High Court. Peavy v. WFAA-TV, Inc., 221 F.3d 158 (5th Cir. 2000), petition for cert. filed (Oct. 30, 2000) (No. 00-849).

    Bartnicki has attracted the attention of numerous media groups that fear the case could chill reporting on newsworthy issues. The case showcases yet another clash between privacy and the First Amendment.