The Supreme Court
Using Illegal Communication
Freedom of the press cases do not frequently make it to the Supreme Court today. The first major press-freedom case to be decided in a decade was Bartnicki v. Vopper, which was decided on May 21, 2001. The case involved an illegally intercepted communication that was used in press reports. The Supreme Court had to decide which took precedence—freedom of the press to use information or protection of the privacy of the persons' whose conversations were intercepted.
“In a democratic society privacy of communication is essential if citizens are to think and act creatively and constructively. Fear or suspicion that one's speech is being monitored by a stranger, even without the reality of such activity, can have a seriously inhibiting effect upon the willingness to voice critical and constructive ideas.”
—From the report of the President's Commission on Law Enforcement and Administration of Justice, The Challenge of Crime in a Free Society in 1967
The case started when a Pennsylvania broadcaster named Frederick Vopper, known on the air as Fred Williams, was sued by two labor leaders for using an intercepted conversation in which it was suggested that union members go to the homes of school board members and “blow off their porches.” This conversation took place between Gloria Bartnicki and Anthony Kane during heated labor negotiations between the teachers union and the school board. The conversation was intercepted by an unknown person and left in the mailbox of a local activist, Jack Yokum, who turned over a copy to Vopper.
Bartnicki and Kane sued Vopper, Yokum, and the radio station that aired the conversation, asking the court to enforce federal and state laws against wiretapping and intercepting electronic communications by punishing the media personnel who used the intercepted conversation. The district court ruled in favor of Bartnicki and Kane, concluding that an individual who violates federal wiretapping laws by intentionally disclosing the contents of an electronic communication even though he or she knows or suspects the information was obtained illegally are not protected by the First Amendment.
The 3rd Circuit Court disagreed and found the wiretapping statutes invalid because they deterred significantly more speech than was necessary to protect private interests at stake. The Supreme Court in a 6 to 3 ruling found that the public's right to know takes precedence over privacy when publishing information vital to the public interest. Justice Stevens wrote the opinion for the Court and was joined by Justices Breyer, Ginsburg, Kennedy, O'Connor, and Souter. Chief Justice Rehnquist wrote the dissenting opinion and was joined by Scalia and Thomas. In writing the opinion for the Court, Stevens said:
In writing the dissent, Chief Justice Rehnquist disagreed and said:
When balancing the issue of the public's need to know versus privacy, the Supreme Court believes the press freedoms need to be protected above the rights of privacy and that people involved in public affairs do lose some rights related to privacy.
Clearly this ruling will be revisited as new issues arise involving ever-evolving new technologies. Lee Levine who argued the case for Vopper said, “privacy is the battlefield for the future.” We'll explore privacy issues more closely in the next section.