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.

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 considering that balance, we acknowledge that some intrusions on privacy are more offensive than others, and that the disclosure of the contents of a private conversation can be an even greater intrusion on privacy than the interception itself. As a result, there is a valid independent justification for prohibiting such disclosures by persons who lawfully obtained access to the contents of an illegally intercepted message, even if that prohibition does not play a significant role in preventing such interceptions from occurring in the first place.
• “We need not decide whether that interest is strong enough [the related statute] … to disclosures of trade secrets or domestic gossip or other information of purely private concern … In other words, the outcome of the case does not turn on whether [this statute] may be enforced with respect to most violations of the statute without offending the First Amendment. The enforcement of that provision in this case, however, implicates the core purposes of the First Amendment because it imposes sanctions on the publication of truthful information of public concern.
• “In this case, privacy concerns give way when balanced against the interest in publishing matters of public importance. As Warren and Brandeis stated in their classic law review article: 'The right of privacy does not prohibit any publication of matter which is of public or general interest.' … One of the costs associated with participation in public affairs is an attendant loss of privacy.”

In writing the dissent, Chief Justice Rehnquist disagreed and said:

• “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. 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. In an attempt to prevent some of the most egregious violations of privacy, the United States, the District of Columbia, and 40 States have enacted laws prohibiting the intentional interception and knowing disclosure of electronic communications. The Court holds that all of these statutes violate the First Amendment insofar as the illegally intercepted conversation touches upon a matter of 'public concern,' an amorphous concept that the Court does not even attempt to define. But the Court's decision diminishes, rather than enhances, the purposes of the First Amendment: chilling the speech of the millions of Americans who rely upon electronic technology to communicate each day.”

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.

Excerpted from The Complete Idiot's Guide to The Supreme Court © 2004 by Lita Epstein, J.D.. All rights reserved including the right of reproduction in whole or in part in any form. Used by arrangement with Alpha Books, a member of Penguin Group (USA) Inc.

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