Fall 2001 Human Rights Magazine

By Karen N. Frederiksen

At its core, last May's U.S. Supreme Court decision in Bartnicki v. Vopper, 532 U.S. 514, 121 S. Ct. 1753, 149 L. Ed 2d 787 (2001), provides strong support for the constitutional right of the press to publish truthful information about matters of public interest, even when that information is unlawfully obtained. However, the Court's concern with possible abuses of technological advances, and the impact of those abuses on Americans' right to privacy, was palpable. In the midst of these clashing interests, Bartnicki made clear at least one important rule for newsrooms: journalists and others cannot be punished for disclosing the contents of an illegally intercepted telephone conversation so long as:

(1) the information concerns an issue of "public importance" (or perhaps "unusual" public importance), and
(2) the press did not "participate" in or "encourage" the interception of the phone call.

The parameters of these two important qualifications remain unclear. How should reporters and editors proceed when faced with the question of whether to publish tapes of-or information gleaned from-secretly recorded telephone conversations?

Two other cases that percolated as far as the Supreme Court's door provide some guidance, but no clear-cut answers. On May 29, 2001, just eight days after announcing its decision in Bartnicki, the Supreme Court denied certiorari in one of these cases, and granted certiorari-vacating and remanding the circuit court opinion-in the other.

The Court let stand the Fifth Circuit's opinion in Peavy v. WFAA-TV, Inc., 221 F.3d 158 (5th Cir. 2000), cert. denied, 121 S.Ct. 2191, 149 L. Ed. 2d 1023 (2001), a case that causes concern in any newsroom presented with a highly newsworthy-but illegally intercepted-telephone recording. The same day, the Supreme Court vacated and remanded the decision in Boehner v. McDermott, 191 F.3d 463 (D.C. Cir. 1999), cert. granted, vacated and remanded, 121 S.Ct. 2190, 149 L. Ed. 2d 1022 ( 2001). That decision also focused on the Federal Wiretap Act's "use and disclosure" prohibition and concluded that Congressman James McDermott had violated the Act.

As these three cases reveal, the legal landscape regarding the use and disclosure of illegally obtained telephone conversations remains unpredictable. Another open question is the impact of Bartnicki in cases where the press and perhaps others publish the contents of illegally intercepted computer messages. What we now know, however, is that six Supreme Court Justices appear to believe that "intermediate scrutiny" is not the appropriate framework for determining the constitutionality of laws that prohibit the dissemination of information, even when such laws aim to be "content neutral."

The Bartnicki Opinions

The guidance provided by Bartnicki is obscured by the Justices' multiple opinions. Five joined the majority decision authored by Justice Stevens. However, two of them-Justices Breyer and O'Connor-also signed onto a separate concurring opinion that more narrowly interprets the constitutional protections for publication of the contents of illegally intercepted telephone calls. A dissenting opinion by Chief Justice Rehnquist was joined by Justices Scalia and Thomas.

The facts giving rise to Bartnicki are straightforward. Gloria Bartnicki and Anthony Kane, both union officials engaged in contentious collective bargaining negotiations with a local school board, sued a union adversary, a radio station commentator, and a reporter, for violation of the Federal Wiretap Act, 18 U.S.C. § 2511(1)(c) and (d) et seq., which proscribes the willful "disclosure" and "use" of intercepted telephone conversations that one knows, or reasonably should know, were illegally obtained. Similar provisions of a Pennsylvania statute also were allegedly violated. An unknown person had intercepted a cell phone conversation between Bartnicki and Kane during which union negotiation strategy was discussed, including Mr. Kane's remark "we're gonna have to go to [school board members'] homes . . . to blow off their front porches, will have to do some work on some of those guys." The unidentified interceptor left the tape in the mailbox of Yocum, a known union adversary. Yocum, in turn, provided the tape to local news media, including radio commentator Frederick Vopper. Vopper and other media representatives played the tapes in their news reports.

After the district court denied the parties' cross summary judgment motions, a split Third Circuit applied the intermediate constitutional scrutiny standard. The Circuit Court held, however, that the federal and state wiretap laws were unconstitutional as applied, in large part because it was not alleged the media participated in or encouraged the interception.

The Supreme Court affirmed, but used the framework of strict scrutiny, finding that even though the laws at issue were content neutral, the highest level of constitutional review was required because both Yocum's and the media's activities amounted to "pure speech." The Supreme Court assumed four facts:

(1) the interception was unlawful;
(2) the media and Yocum knew-or had reason to know-the conversation was unlawfully taped;
(3) the media and Yocum had obtained the tape lawfully and "played no part in the illegal interception"; and
(4) the information disclosed on the tape about the labor negotiations was truthful and of public importance.

The Majority Opinion

The "novel and narrow" issue Bartnicki addressed was "what degree of protection, if any, the First Amendment provides to speech that discloses the contents of an illegally intercepted communication." The Court expressly avoided the broader issue of whether the government ever can punish the publication of truthful information of public concern where the media obtained the information unlawfully.

The Bartnicki Court, however, recognized it was squarely presented with a conflict between interests of "the highest order," namely, the dissemination of information about public issues and the interest in individual privacy and, more specifically, in "fostering private speech." The majority was "firmly convinced" that the disclosures in the unlawfully-obtained cell phone conversation were constitutionally protected. Thus, as applied, the Federal Wiretap Act was unconstitutional.

The Supreme Court majority rejected, out of hand, the government's argument that punishing the disclosure of information was necessary to remove the incentive of others to illegally record telephone conversations. The government's second interest, protecting the sanctity of "privacy," was "considerably stronger," in part because of the "fear of public disclosure of private conversations might well have a chilling effect on private speech." However, under the facts raised in Bartnicki, the First Amendment right to publish the publicly important conversations prevailed. The Court cautioned, however, that in other circumstances, such as those where the telephone conversations at issue involve "disclosures of trade secrets or domestic gossip or other information of purely private concern" First Amendment interests may not triumph.

The Concurrence

Justices Breyer and O'Connor not only joined in the Court's majority opinion, but also wrote and joined, respectively, a concurring opinion. Specifically, they joined in the majority's "narrow" holding, which was limited to the special circumstances Bartnicki presented: the media acted lawfully, at least until the time of final public disclosure; the public interest in the conversations was "unusually high"; and the privacy expectations of the limited purpose public speakers was "unusually low." (Emphasis added.) Justice Breyer carefully stated his view that the Court was not implying "a significantly broader constitutional immunity for the media." He noted that "the Constitution permits legislatures to respond flexibly to the challenges future technology may pose to the individual's interest in basic personal privacy."

Furthermore, Justice Breyer's concurrence did not endorse the majority's application of the strict scrutiny test, finding it "out of place." Instead, he advocated a balancing approach under which important constitutional privacy and free speech interests are weighed. Indeed, the concurring opinion goes so far as to state that "[a]s a general matter," statutes such as the Federal Wiretap Act that pose "direct restrictions on speech," must be tolerated because of the importance of the "privacy and speech-related objectives."

The Chief Justice's Dissent

The three-Justice dissent in Bartnicki focused on the First Amendment rights of persons not to speak. Chief Justice Rehnquist, who would have upheld the application of the wiretap laws under an intermediate scrutiny analysis, was especially concerned about chilling the speech of Americans who use "electronic technology to communicate each day." The dissent characterizes the majority's "public concern" test as "an amorphous concept that the Court does not even attempt to define."

The Peavy and Boehner Decisions

Just days after rendering its Bartnicki decision, the Supreme Court denied certiorari in another case dealing with the media's publication of unlawfully intercepted phone conversations, and granted certiorari in another interception case where the media is not a party. The ambiguity journalists face under Bartnicki largely may be resolved by the litigation surrounding these disputes.

Peavy v. WFAA-TV, Inc. In Peavy, the "use" and "disclosure" provisions of the Federal Wiretap Act were at issue, as was a similar Texas law. In addition, it was alleged that the media defendants illegally "procured" and "obtained" a third party to make the telephone recordings at issue. It was not disputed that plaintiff Carver Dan Peavy's cordless telephone conversations were illegally recorded by his neighbor, Charles Harman, who provided them to a reporter.

The Fifth Circuit rejected the media's First Amendment defense, and the Supreme Court declined review and remanded the case to the trial court for further proceedings. The circuit court's seemingly hostile characterization of the media's activities in Peavy does not intuitively follow from the reporter's seemingly well-intended actions. Peavy was an elected school district official and his conversations were recorded by angry neighbors on a police scanner. Before the reporter was involved, the neighbors claimed that Peavy was recorded threatening the neighbors' safety and making comments revealing Peavy's own "public corruption."

The neighbors turned to their local television station and played the tapes for a reporter, who was then assigned to investigate the allegation that Peavy was possibly involved in an insurance kickback scheme. The reporter knew the neighbors had recorded Peavy's cordless phone conversations, and that the neighbors would continue to do so. At one point, the reporter instructed the neighbors to leave the tape recorder on while recording and not to edit the tapes, to better ensure their authenticity.

Once the reporter learned that such recording by the neighbors was unlawful, he decided not to accept any more tapes from them. The television station, however, continued its investigation of Peavy using other sources, including government records, personal interviews, campaign contribution lists, and meeting minutes. Three broadcasts resulted from the television station's investigation of district trustee Peavy's alleged wrongdoing in connection with insurance purchases. The actual tapes were not aired, although the district court held that the contents of some of the tapes were "disclosed."

The case wound its way to the Fifth Circuit, which last July held that a question of fact was presented about whether, under applicable Texas statute, the television station and reporter "obtained" the neighbors to unlawfully intercept the phone conversations under Texas law, and whether the media defendants violated the "use and disclosure" provisions of federal and state law. The Fifth Circuit employed intermediate scrutiny, perhaps consistent with the Supreme Court's Bartnicki decision given that it is possible that more than "pure speech" was at issue vis-à-vis the Peavy media defendants.

Boehner v. McDermott. On May 29, 2001, the District of Columbia Circuit's opinion in Boehner was vacated, and the case remanded in light of Bartnicki. The vacated opinion had held that the Federal Wiretap Act did not violate the First Amendment rights of Congressman James McDermott, who had delivered an illegally recorded tape of a cell phone conversation to a newspaper (which was not sued). Using a radio scanner, a Florida couple had intercepted conversations between Republican Congressman John Boehner and Republican Party leadership. The couple gave the tape to McDermott, along with a cover letter stating that the tape contained a conference overheard on a "scanner" and that the Martins understood they would be granted immunity.

Significantly, the tape at issue involved a matter of enormous public importance; it was made during a time that then-Speaker Newt Gingrich was being investigated for alleged ethics violations and the conversations were about Republican strategy over an expected announcement of Gingrich's agreement to accept a reprimand and pay a fine in exchange for avoiding a public hearing.

After McDermott received the tape, he delivered it to three newspapers. When the Florida couple publicly confessed their role in the recording, McDermott resigned his post on the Ethics Committee and provided other committee members with a copy of the tape. The trial court held that the First Amendment barred Congressman McDermott from being found liable under the federal law's "use and disclosure" prohibition, primarily because McDermott did not act unlawfully when he obtained the tape from the Florida couple, and because the tape was of public importance. A split circuit court reversed, holding that despite the public importance of the conversations at issue, intermediate scrutiny should be the standard applied.

The Supreme Court apparently disagreed. It vacated the circuit court's decision in Boehner, likely because of the enormous public importance of the intercepted political conversations at issue in that case.

What This Means for the Press

How "publicly important" must the conversation be? The only completely secure safe harbor for journalists who wish to publish illegally intercepted telephone conversations involves a situation where the discussions are of enormous public importance and relate to governmental affairs. It is unknown if Justice Breyer's "unusual" public concern standard, or some lesser standard, will prevail. The media most obviously faces risk for disclosure of unlawfully intercepted gossip-flavored conversations about private individuals and perhaps celebrities, or about private matters such as family, children, sex, and medical treatment. Disclosing trade secrets also may be troublesome, even where the media did not participate in, encourage, or even know about the unlawful recording at issue.

Can conversations between private individuals be published? Apart from the content of the conversations, courts may look to the role of the speakers whose conversations are illegally intercepted. If Justice Breyer's concurrence becomes the standard, more constitutional safety may be accorded the press when the speakers are not private individuals or perhaps even celebrities, but instead government figures or officials of some kind.

What does it mean for the press to impermissibly "participate in," or "encourage," an illegal interception? None of the decisions hold that reporters can actually intercept, or aid in the interception of, telephone conversations without the consent of one of the speakers. At least where the conversation concerns a matter of great public importance, however, the press can publish recorded conversations so long as they are truly uninvolved in any aspect of the unlawful interception. It is uncertain when a reporter will be deemed to have been "indirectly" involved in the recording, an unlawful circumstance that may be triggered if the reporter merely knows the interception is occurring and has contact with the third party making the recordings.

Karen N. Frederiksen is a partner in Davis Wright Tremaine, LLP, in Los Angeles. She practices in the firm's Communications, Media, and Information Technology Department and regularly represents television and other media clients who have been sued in connection with their news gathering activities. Karen can be reached at 213/633-6822 or karenfrederiksen@dwt.com.

As published in Human Rights, Fall 2001, Vol. 28, No. 4, p.17-19.