The U.S. Supreme Court agreed on June 26 to decide whether a radio station may be subject to civil liability for broadcasting a tape of an illegally intercepted cellular phone conversation, when the station received the tape anonymously and played no part in the interception.
In Bartnicki v. Vopper, 200 F.3d 109 (3d Cir. 1999), cert. granted, 112 S.Ct. 2716 (2000), the U.S. Court of Appeals for the Third Circuit held that the Pennsylvania and federal wiretap statutes, which prohibit the "use" or "disclosure" of illegally intercepted communications, are unconstitutional as applied to parties who did not participate in or encourage the illegal interceptions.
The case could have significant implications for journalists, who are often presented with newsworthy information that was gathered - sometimes illegally - by those outside of their organization. The Supreme Court's ruling in the case is also important because it will determine the application of similar statutes on the books in 43 states and the District of Columbia. Minnesota is among these states. See Minn. Stat. section626A (1969). Bartnicki is the only free press case on the Supreme Court's docket for next term.
Bartnicki arose after an unknown party intercepted and taped a May 1993 cellular telephone call between Pennsylvania high school teacher Anthony Kane and Gail Bartnicki, chief negotiator of the local teachers' union. During the conversation, Bartnicki, discussing the school board's consideration of a proposed teacher pay raise, said, "If they're not going to move for three percent, 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."
A tape of the conversation was forwarded to Jack Yocum, president of the local taxpayers' association, who sent a copy to radio talk show host Frederick Vopper. Vopper broadcast excerpts of the taped conversation on his show.
Bartnicki and Kane filed suit in the U.S. District Court for the Middle District of Pennsylvania against Vopper, Yocum and the radio station under both state and federal wiretapping laws. See 18 Pa. Cons. Stat. section5701 et seq., and 18 U.S.C. section2510 et seq. Both statutes provide civil and criminal penalties for those who illegally intercept private communications, as well as for those who use or disclose the contents of those conversations "knowing or having reason to know" the information was obtained illegally.
The defendants argued that the statutes, as applied to their actions, infringed on their First Amendment free expression rights. After denying both plaintiff and defendant motions for summaryjudgment, Bartnicki v. Vopper, No. 94-1201 (M.D. Pa. June 14, 1996), the District Court certified this constitutional question to the Court of Appeals for the Third Circuit, which accepted review on Feb. 26, 1998. The Third Circuit found the relevant portions of the state and federal statutes to be unconstitutional as applied.
Attorneys for the federal government intervened in the case to defend the federal statute. They argued that the law serves the government's substantial interest in protecting the privacy of personal communications, and that by permitting these suits, the government was "eliminating the demand for intercepted materials on the part of third parties."
The court acknowledged the government's interest in protecting privacy, but said both the state and federal laws were "substantially broader than necessary" and would deter the media from disclosing even some legally obtained information. The government's interest in protecting the privacy of communications was outweighed by the speech interests of the defendants, the court held, and the government's interests could still be achieved through less restrictive means - specifically, by reserving penalties for those who intentionally intercept messages.
The court concluded that the wiretapping statutes could not constitutionally be applied against those who use or disclose illegally intercepted information without evidence that the defendants participated in or encouraged the interception.
On Dec. 24, 1999, two months before the Third Circuit's Bartnicki ruling, the Court of Appeals for the D.C. Circuit upheld the constitutionality of the federal wiretapping act in similar circumstances in Boehner v. McDermott, 191 F.3d 463 (D.C. Cir. 1999). Conflicts between the Bartnicki and Boehner rulings led to the Supreme Court's decision to review.
In Boehner, the D.C. Circuit Court held that U.S. Rep. James McDermott, D-Wash., could be found liable under the federal wiretapping act for distributing to news organizations tapes of an illegally intercepted conference call between U.S. Rep. John Boehner, R-Ohio, and several of his Republican colleagues, including former House Speaker Newt Gingrich. At the time, Gingrich was under investigation by the House Ethics Committee, which was chaired by McDermott. The Dec. 21, 1996, phone conversation was illegally intercepted and taped by a Florida couple. They eventually delivered the tape to McDermott's office, along with a letter explaining how they had accessed the conversation.
On March 9, 1998, Boehner sued McDermott for civil damages, but the U.S. District Court for the District of Columbia dismissed the claim, holding that application of the statute to McDermott violated the First Amendment by punishing the dissemination of truthful information. Boehner v. McDermott, No. CIV. 98-594 TFH., 1998 WL 436897 (D. D.C. July 28, 1998). The D.C. Circuit reversed and sent the case back to the District Court for trial. There was no First Amendment problem in this case, the D.C. Circuit Court held, because McDermott's distribution of the tape to the news media did not constitute "speech."
There are a few key distinctions between Boehner and Bartnicki that the Supreme Court will be likely to address:
- One of the defendants in Bartnicki is a news organization, and another is, by most definitions, a journalist. The Court will need to consider whether the constitutional standard should be different for media defendants, than for non-journalists like Rep. McDermott.
- In Bartnicki, the defendants did not know that the conversation had been illegally intercepted; in Boehner, the defendant apparently did. (McDermott has not yet conceded this fact, but the D.C. Circuit assumed it to be the case.) Whether that distinction is of constitutional significance is something the Supreme Court will have to resolve.
The Court's discussion may resolve a constitutional question that has been debated since the Pentagon Papers case three decades ago. See New York Times v. U.S., 403 U.S. 713 (1971). The Court never decided whether the Washington Post and New York Times could be punished for publishing the illegally procured Pentagon Papers. The Court's per curiam opinion dealt only with the constitutionality of prior restraints. Bartnicki may finally settle this question, and also provide some clearer guidelines for testing the constitutionality of restrictions on the dissemination of truthful information by both the press and the public.