Bartnicki v. Vopper, 532 U.S. 514 (2001)

During contentious collective-bargaining negotiations between a Pennsylvania high school teachers’ union and the local school board, Bartnicki, the chief union negotiator, and Kane, the union president, had a conversation on a cellular telephone that was intercepted and recorded by an unidentified person. A nonbinding arbitration proposal, generally favorable to the teachers, had all but settled the dispute, when Vopper, a radio commentator critical of the unions, played the tape of the intercepted conversation on a segment of his public affairs talk show dedicated to covering the settlement. The tape was subsequently aired on another station and its content was published in the local newspapers. In the recorded conversation, Bart-nicki and Kane discussed the timing of a proposed strike, the difficulties created by public comment on the negotiations, and the need for a dramatic response to the school board’s intransigence.
Bartnicki and Kane filed suit against Vopper and other members of the media. It was discovered that Vopper obtained the tape from Jack Yocum, the head of a local taxpayers’ association opposed to the union’s demands. Yocum testified that he discovered the tape in his mailbox. When he played it, he recognized the voices of Bartnicki and Kane. He played it for the school board and then delivered it to Vop-per, as well as to other individuals and media representatives. Both parties sought summary judgment. Bartnicki alleged that each of the defendants who aired or published the contents of the tape “knew or had reason to know” that the recording of the private phone conversation had been obtained in violation of both federal and state anti-wiretap statutes. Bartnicki sought actual damages, statutory damages, punitive damages, and attorney’s fees. The defendants argued that there was no violation because (1) if the interception was illegal, the defendants had nothing to do with the it; (2) the conversation might have been intercepted inadvertently, not illegally, and therefore the defendant’s actions were not unlawful; and (3) if the defendants had violated the statute by disclosing the conversations, the disclosures were protected under the First Amendment and the defendants were not liable for damages. The district court found that the defendants had clearly violated the statute; they “knew or had reason to know” that the information was obtained through an illegal interception. Actual involvement in the illegal interception was not required. However, whether the interception was inadvertent was a disputed fact, so summary judgment was denied. The court did, however, grant a motion for an interlocutory appeal, which sought an answer to the following questions of law: “(1) whether the imposition of liability on the media defendants under the [wiretapping] statutes solely for broadcasting the newsworthy tape on [Vopper's] radio news/public affairs program, when the tape was illegally intercepted and recorded by unknown persons who were not agents of [the] defendants, violates the First amendment; and (2) whether imposition of liability under the [anti-wiretapping] statutes on Defendant Yocum solely for providing the anonymously intercepted and recorded tape to the media violates the First Amendment.”
All parties agree that the wiretapping statutes are content-neutral laws of general applicability. They do not seek to discriminate against any particular speech content or single out a particular viewpoint; they seek to protect privacy. A content-neutral regulation is subject to the “intermediate scrutiny standard”; that is, it will be sustained under a First Amendment challenge if it advances important governmental interests unrelated to the suppression of free speech and does not burden substantially more speech than necessary to further those interests. The Court of Appeals for the Third Circuit determined that under this standard, the wiretapping statutes were invalid because they deterred significantly more speech than necessary to protect the privacy interests at stake. Bartnicki appealed.
The United States Supreme Court granted certiorari. It accepted the following findings of facts: (1) The conversation was intercepted illegally (i.e., in violation of the wiretapping statutes). (2) The defendants violated the wiretapping statutes because they knew or should have known that the conversation was intercepted illegally. (3) The defendants played no part in the interception itself; they obtained the information from the tapes lawfully, even though someone else unlawfully intercepted the information. (4) The subject matter of the conversation was a matter of public concern. The Court also accepted that (5) the wiretapping statutes were content-neutral laws of general applicability and that intermediate scrutiny was the appropriate standard to apply. The Court was required to determine only whether the application of these statutes, under these particular facts, violated the First Amendment.
The Court began its analysis of this question by setting out general principles of law from previous cases. Smith v. Daily Mail held that “state action to punish the publication of truthful information seldom can satisfy constitutional standards.” Florida Star v. B.J.F. held that “if a newspaper lawfully obtains truthful information about a matter of public significance then state officials may not constitutionally punish publication of the information absent a need . . . of the highest order.” New York Times v. United States upheld the publication of documents of great public importance stolen by a third party, focusing primarily on the character of documents’ contents and the consequences of the disclosure. That case, however, did not resolve the issue here: whether the government may punish not only unlawful acquisition of information, but the ensuing publication as well. The Court noted that it had carefully tried to avoid categorical holding of whether publication of truthful information may ever be punished under the First Amendment.
The government argued that two important interests are served by the statute: preventing disclosure deters parties from intercepting private communications, and it minimizes the harm to persons whose private communications have been illegally intercepted. The Court took these up in turn. It opined that the interest of deterrence is insufficient to justify punishing disclosures in this case. The defendants published lawfully obtained information of public interest by someone who was not involved in the initial illegality. While illegal interceptors are usually known, and usually disclose intercepted communications for public praise or financial reward, imposing sanctions on the media in this case will not deter unidentified scanners from such antisocial conduct. The Court found, however, that the government’s interest in minimizing harm to the invasion of privacy was a considerably stronger argument. The wiretapping statutes encourage uninhibited exchange of ideas and information among private parties, and fear of public disclosure might have a chilling effect on speech. Therefore, the statutes may be applied in most cases without violating the First Amendment, in order to prevent disclosures of trade secrets or domestic gossip. However, in this case, enforcement of the statute imposes sanctions on the publication of truthful information of public concern, implicating the core purposes of the First Amendment. The Supreme Court held, relying on the general proposition that freedom of expression upon public questions is secured by the First Amendment, that privacy concerns must give way in publishing matters of public importance.
Justice Breyer, joined by Justice O’Connor, concurred in the opinion and agreed with the narrow holding limited to these special circumstances: radio broadcasters engaged in no unlawful act aside from the broadcasting itself, and the information involved a matter of unusual public concern, namely, a threat of harm to others. The concurrence went on to explain why the majority’s opinion should not be read as signifying a broad constitutional immunity to the media.
Justices Scalia and Thomas joined Chief Justice Rehnquist in his dissent. The dissent expressed concern over the loss of privacy signified by the majority’s opinion. It faulted the majority for limiting the holding to “matters of public concern” without defining that amorphous term. It argued that the majority opinion diminishes the First Amendment rather than enhances it because the opinion will have the effect of chilling the speech of citizens who increasingly rely on electronic technology— cellular telephones and electronic mail—to communicate. The dissent found fault with the majority’s reliance on the line of cases it referred to. Further, it disagreed with the majority view that Bartnicki and Kane, by discussing a matter of public importance, somehow were contributing to a public debate and that their privacy interests were subordinate to the disclosure of these statements. The dissent argued that the right to privacy, at its narrowest, must include the right to be free from surreptitious eavesdropping and the involuntary broadcast of cellular telephone conversations.