Bartnicki, Gloria, et al. v. Vopper, Frederick, et al. / U.S. v. Vopper, et al.
Bartnicki, Gloria, et al. v. Vopper, Frederick, et al. / U.S. v. Vopper, et al.
By: Nathan Alderman and Rukshan Mistry, Medill News ServiceQuestions presented
Do federal and Pennsylvania wiretapping statutes violate the 1st Amendment insofar as they prohibit disclosure or other use of unlawfully intercepted electronic communication by a person who was not involved in the interception itself, but who knows or has reason to know that the communication was unlawfully intercepted?
Brief
If anyone knew who intercepted the cellular phone call Gloria Bartnicki made to Anthony Kane seven years ago, the lawsuit they filed might never had reached the Supreme Court's docket.
Bartnicki was the chief negotiatior for the teachers' union at Pennsylvania's Wyoming Valley West School District. Kane was president of the union and a teacher at Wyoming Valley West High School. Their union was embroiled in contentious negotiations with the school district over the teachers' new contract.
In May 1993, Bartnicki called Kane on her cellular phone to discuss the negotiations, specifically disputes over whether the teachers would receive a three or six percent raise.
"If they're not going to move for three percent," Kane said on the phone, "we're gonna have to go to their homes...to blow off their front porches, we'll have to do some work on some of those guys."
What neither Kane nor Bartnicki knew was that a third party, whose identity remains a mystery to this day, was listening in accidentally or intentionally on their conversation. The listener taped the conversation, and placed the tape in the mailbox of Jack Yocum, head of a local organization opposing the teachers' demands.
After Yocum played the tape and recognized the voices, he gave it to local deejay Fred Williams, a.k.a. Frederick Vopper, who played it several times on the air during his news-talk radio show. After the initial airing, the tape showed up on TV news, and transcripts appeared in newspapers.
Bartnicki and Kane subsequently sued Vopper, Yocum and Vopper's radio station for damages under federal and state anti-wiretapping laws. The Federal Omnibus Crime Control and Safe Streets Act of 1968 prohibits people from disclosing information they know was illegally obtained. Pennsylvania law says almost exactly the same thing.
In June 1996, the district court ruled in Bartnicki and Kane's favor, finding that the wiretapping laws did not infringe upon the defendants' 1st Amendment speech rights. The case went up to the 3rd Circuit Court of Appeals for review before it was submitted to a jury for damages.
For the appeal, the United States joined in on Bartnicki and Kane's side in order to deflect the challenge the case posed to its wiretapping statutes.
The appeals court, in deciding the case, boiled the situation down to a single question: does your right to free speech protect you from punishment if you publish the contents of conversations you know were illegally obtained, so long as you played no part whatsoever in obtaining them?
On Dec. 27, 1999, the appeals court decided 2-1 in favor of the defendants, ruling that the punitive elements of the wiretapping acts placed an unfair burden on free speech., especially in a case where the information revealed was of public importance.
"The connection between prohibiting third parties from using or disclosing intercepted material and preventing the initial interception is indirect at best," Judge Dolores Sloviter wrote in the majority opinion, adding that the United States hadn't proven that punishing the defendants would harm or dissuade the person who actually recorded Bartnicki and Kane's call from doing so again. "The government's desired effect can be reached by enforcement of exisitng provisions against the responsible parties rather than by imposing damages on these defendants."
"We are also concerned that the provisions will deter significantly more speech than is necessary," Sloviter continued. "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. ... Such uncertainty could lead a cautious reporter not to disclose information of public concern for fear of violating the Wiretapping Acts."
Sloviter also dismissed comparisons to a concurrent and similar case, Boehner v. McDermott, in which a couple with a police scanner chanced upon an incriminating conversation between high-ranking Congressional Republicans, taped the conversation, then gave it to Democratic Representative James A. McDermott, a member of the House Ethics Committee, when they realized its import. The appeals court distinguished the two cases, finding that the Bartnicki-Kane call had been aired in the public interest, whereas McDermott had used his recording primarily to embarrass his political enemies.
Judge Louis Pollak wrote the dissent. Though he agreed with the way the majority had framed the case relative to Supreme Court precedent, he reached a different conclusion than they did.
Pollak argued that protecting the privacy of individuals whose calls had been intercepted was just as important as preventing the taping in the first place. He also disagreed with the majority's fears that reporters might censor themselves under existing law, arguing that "a responsible journalist...would be unlikely to propose publication of a transcript of an apparently newsworthy conversation without some effort to ensure that the conversation in fact took place and to authenticate the identities of the parties to the conversation."
On June 26, 2000, the U.S. Supreme Court granted certiorari in the case.
During oral arguments on Dec. 5, eight of the nine justices - all except Justice Clarence Thomas - got into the act of questioning and animated exchange.
The 1st Amendment was at the heart of the questioning.
What legal precedent was there for regulating free speech not found to be seditious or obscene, Justice Anthony Kennedy asked Jeremiah Collins, arguing for Bartnicki.
"Why should [the federal wiretapping law penalties] extend to the subsequent user who didn't do anything wrong," Justice Sandra Day O' Connor wanted to know.
The U.S. Solicitor General, representing the U.S., had taken on a position that appeared to the justices to sell the 1st Amendment short. "There is no suggestion here of a censorious motive by the government" in enacting or enforcing the federal anti-wiretapping laws, Solicitor General Seth Waxman told the Court.
"What you're doing here is suppressing speech that's valuable to the public," Kennedy said to Waxman.
"There are other constitutional values at stake," Waxman responded.
Questioning of the other side was just as animated. Justice Antonin Scalia observed that "there's speech involved on both sides," adding that he doesn't use his wireless phone to discuss court business because of fears of interception. He also mused that the judicial system has a way to deal with illegally obtained wiretap information. The information is excluded from use at trial.
Justice Stephen Breyer wondered what privacy protections would be left if cell phone calls could be intercepted without permission and then broadcast with impunity.
Chief Justice William Rehnquist cited Hill v. Colorado, a speech-related anti-abortion case from the Court's previous term to suggest that privacy interests can sometimes prevail over free speech rights. In that case, the Court invoked the right of privacy in upholding a Colorado law that barred abortion protesters from approaching clinic visitors uninvited in some circumstances.
In response, Lee Levine, representing Frederick Vopper, said that case involved a time, place or manner restriction on speech, but the wiretap law imposes a "direct prohibition" on speech that is not supported by precedent.
On May 21, 2001, the Court held 6-3 that the federal wiretapping law cannot be enforced against the media, when they do not themselves illegally incercept a conversaton so long as the conversation is on a matter of public concern.
The division among the justices was driven by their attempt to balance the 1st Amendment's investment in free speech against constitutionally-entrenched privacy concerns.
"The Framers of the First Amendment surely did not foresee the advances in science that produced the conversation, the interception, or the conflict that gave rise to this action," wrote Justice John Paul Stevens for the majority. "It is therefore not surprising that Circuit judges, as well as the Members of this Court, have come to differing conclusions about the First Amendment's application to this issue. Nevertheless, having considered the interests at stake, we are firmly convinced that the disclosures made by respondents in this suit are protected by the First Amendment."
Stevens noted that the majority holding was quite narrow, "consistent with this Court's repeated refusal to answer categorically whether truthful publication may ever be punished consistent with the First Amendment."
Nonetheless, the majority opinion was not narrow enough for Justices Stephen Breyer and Sandra Day O' Connor, who concurred.
The concurrence reinforced that the case involved radio broadcasters who had acted lawfully (up to the time of final public disclosure) and to information "involving a matter of unusual public concern, namely a threat of potential physical harm to others," wrote Breyer, being careful to note that "the Court's holding does not imply a significantly broader constitutional immunity for the media."
The particular facts dictated and limited the concurrence's conclusion: "Here, the speakers' legitimate privacy expectations are unusually low, and the public interest in defeating those expectations is unusually high," wrote Breyer. "I emphasize the particular circumstances before us because, in my view, the Constitution permits legislatures to respond flexibly to the challenges future technology may pose to the individual's interest in basic personal privacy. Clandestine and pervasive invasions of privacy, unlike the simple theft of documents from a bedroom, are genuine possibilities as a result of continuously advancing technologies. Eavesdropping on ordinary cellular phone conversations in the street (which many callers seem to tolerate) is a very different matter from eavesdropping on encrypted cellular phone conversations or those carried on in the bedroom. But the technologies that allow the former may come to permit the latter. And statutes that may seem less important in the former context may turn out to have greater importance in the latter."
The dissenters were even more concerned about the advent of technology and the government's role in mediating how society should respond to it.
"Technology now permits millions of important and confidential conversations to occur through a vast system of electronic networks. These advances, however, raise significant privacy concerns," wrote Chief Justice William Rehnquist for himself and Justices Antonin Scalia and Clarence Thomas. "We are placed in the uncomfortable position of not knowing who might have access to our personal and business e-mails, our medical and financial records, or our cordless and cellular telephone conversations."
The dissent criticized the majority for paying lip service to those privacy concerns.
"Although the Court recognizes and even extols the virtues of this right to privacy...these are 'mere words,'" Rehnquist wrote in quoting from Shakespeare. Rehnquist chided the majority for creating "a newfound right to publish unlawfully acquired information of 'public concern'" that emerged from the private conversation between Gloria Bartnicki and Anthony Kane, not from a debate worthy of constitutional protection.
"Perhaps the Court is correct that "[i]f the statements about the labor negotiations had been made in a public arena-during a bargaining session, for example-they would have been newsworthy," Rehnquist wrote. "The point, however, is that Bartnicki and Kane had no intention of contributing to a public 'debate' at all, and it is perverse to hold that another's unlawful interception and knowing disclosure of their conversation is speech 'worthy of constitutional protection.'"