C. Publication of Intercepted Calls Is Protected, Supreme Court Rules

     The U.S. Supreme Court ruled in May 2001 that, when issues of public concern are involved, the First Amendment protects the news media even when they broadcast private cellular-phone conversations illegally intercepted by someone else.  Bartnicki v. Vopper, 532 U.S. 514 (2001).     

     Ruling in its first major press-freedom case in a decade, the High Court said the federal law making it a crime to intercept and disseminate phone conversations cannot be used against the news media when they report on matters of public concern.  The 6-to-3 decision came in the joined cases of Bartnicki v. Vopper (No. 99-1687) and United States v. Vopper (No. 99-1728).

     The Bartnicki ruling, long awaited by news organizations, was hailed as “excruciatingly important for the practice of journalism day to day” by Lee Levine, lawyer for Pennsylvania broadcaster Frederick Vopper.

     Mr. Vopper, known on the air as Fred Williams, was sued for airing a cell phone conversation between local labor leaders during heated labor negotiations between a teachers union and a school board.  One intercepted comment suggested that union members go to the homes of school board members and “blow off their porches.”  An unknown person taped the call and left the tape in the mailbox of Jack Yocum, a local activist, who turned a copy over to Mr. Vopper.

     Gloria Bartnicki and Anthony Kane Jr., the union officials whose conversation was overheard and broadcast, sued Mr. Vopper, Mr. Yocum, and the radio station that aired it.  If the High Court had ruled in Ms. Bartnicki’s favor, media groups feared that journalists would have to trace the legal pedigree of information given to them to see if it was obtained legally by their sources.

     The suit invoked federal and state laws against wiretapping and intercepting electronic communications.  The U.S. Court of Appeals for the Third Circuit, applying an intermediate level of scrutiny, said the laws could not be enforced against the media under the First Amendment.  Bartnicki v. Vopper, 200 F.3d 109 (3rd Cir. 2000).  Ms. Bartnicki and Mr. Kane appealed to the Supreme Court, and the Justice Department joined them, telling the Court that enforcing wiretap laws against the media was justified as a way of deterring illegal interceptions. 

     But Justice John Paul Stevens, writing for the majority, rejected that reasoning: “Although there are 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.”  Bartnicki, 532 U.S. at 514.  Justice Stevens invoked New York Times Co. v. United States, the 1971 Pentagon Papers case, to embrace “the right of the press to publish information of great public concern obtained from documents stolen by a third party.”  Id. at 528 (citing New York Times Co. v. United States, 403 U.S. 713 (1971)). 

     However, the media celebration of the Bartnicki outcome was tempered by a number of troubling signs contained in the decision.  The justices stopped short of saying that the press is always protected by the First Amendment when it publishes truthful information, no matter how it was obtained.  And while the court paid homage to the need for robust debate and an unfettered press, the opinion was laced with language asserting that protecting privacy is also an essential goal of government.

     “Privacy of communication is an important interest,” wrote Justice Stevens.  “The fear of public disclosure of private conversations might well have a chilling effect on private speech.”  In the case before the Court, Justice Stevens said the public interest outweighed privacy concerns, but he implied that in other cases involving broadcast of “trade secrets or private gossip” it might not.  Bartnicki, 532 U.S. at 533. 

     In addition to Justice Stevens’s admonitions, a concurrence by Justices Stephen Breyer and Sandra Day O'Connor, as well as the dissent, spotlighted the privacy interests involved -- language that could foreshadow future rulings less favorable to the news media.

     “The Constitution permits legislatures to respond flexibly to the challenges future technology may pose to the individual’s interest in basic personal privacy,” Justice Breyer said.  He also cautioned that the Court’s ruling did not represent a “significantly broader constitutional immunity for the media,” and said that “strict scrutiny” should not have been applied to the case.  Id. at 536. 

     Chief Justice William Rehnquist, in dissent, wrote that “the Court’s decision diminishes, rather than enhances, the purposes of the First Amendment: [by] chilling the speech of the millions of Americans who rely upon electronic technology to communicate each day.”  Justices Antonin Scalia and Clarence Thomas joined in the dissent.  Id. at 542.

     Acknowledging the Court’s increasing attention to privacy concerns, Mr. Levine said that “privacy is the battlefield for the future,” with the outcome for the news media uncertain.

     The impact of the Bartnicki decision was felt almost immediately, when the Supreme Court acted on two cases that raised similar issues.  Eight days after the Bartnicki  ruling, the Court denied certiorari in a case from the Fifth Circuit, Peavy v. WFAA-TV, Inc.  In that case, the appeals court said a media organization could be held liable under wiretapping laws because the media knew the recordings were illegally obtained.  The Supreme Court’s action returns the Peavy case to lower courts for trial.  Peavy v. WFAA-TV, Inc., 221 F.3d 158 (5th Cir. 2000), cert. denied, 532 U.S. 1051 (2001).

     On the same day, the High Court ordered the U.S. Court of Appeals for the District of Columbia Circuit to re-examine, in light of Bartnicki, its decision in Boehner v. McDermott, 191 F.3d 463 (D.C. Cir. 1999), cert. granted, vacated and remanded, 532 U.S. 1050 (2001).  That case involved an intercepted conversation between then-Speaker of the House Newt Gingrich (R-Ga.) and Rep. John Boehner (R-Ohio), among others.  Rep. James McDermott (D-Wash.) was given the tape and he distributed it to several media organizations.  Rep. Boehner sued Rep. McDermott, claiming violation of the wiretap law.  The appeals court ruled in Rep. Boehner’s favor.

-- Tony Mauro