Bartnicki v. Vopper

Opinions of the United
1999 Decisions States Court of Appeals
for the Third Circuit
12-27-1999
Bartnicki v. Vopper
Precedential or Non-Precedential:
Docket 98- 7156
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Recommended Citation
"Bartnicki v. Vopper" (1999). 1999 Decisions. Paper 327.
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Filed December 27, 1999
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
NO. 98-7156
GLORIA BARTNICKI and ANTHONY F. KANE, JR.
v.
FREDERICK W. VOPPER, a/k/a FRED WILLIAMS;
KEYMARKET OF NEPA, INC., d/b/a WILK RADIO;
LACKAZERNE INC., d/b/a WGBI RADIO; JANE DOE;
JOHN DOE; JACK YOCUM
Frederick W. Vopper, a/k/a Fred Williams;
Keymarket of Nepa, Inc., d/b/a WILK Radio;
Lackazerne, Inc., d/b/a WGBI Radio; Jack
Yocum,
Appellants
UNITED STATES OF AMERICA,
Intervenor
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Civil No. 94-cv-01201)
District Judge: Hon. Edwin M. Kosik
Argued October 5, 1998
Before: SLOVITER and COWEN, Circuit Judges,
and POLLAK,* District Judge
_________________________________________________________________
* Hon. Louis H. Pollak, United States District Court for the Eastern
District of Pennsylvania, sitting by designation.
(Filed December 27, 1999)
Donald H. Brobst (Argued)
Rosenn, Jenkins & Greenwald,
L.L.P.
Wilkes-Barre, Pennsylvania 18711
Attorneys for Appellants
Raymond P. Wendolowski (Argued)
Cynthia R. Vullo
Scott C. Gartley
Koff, Wendolowski, Ferguson &
Mangan, P.C.
Wilkes-Barre, Pennsylvania
18701-2721
Attorneys for Appellees
Frank J. Aritz (Argued)
Kingston, Pennsylvania 18704
Attorney for Appellant,
Jack Yocum
Frank W. Hunger
Assistant Attorney General
David M. Barasch
United States Attorney
Douglas N. Letter
Scott R. McIntosh
Attorneys, Appellate Staff
Civil Division, Department of Justice
Washington, D.C. 20530
Attorneys for Intervenor,
United States
2
Mark P. Widoff
Pennsylvania State Education
Association
Harrisburg, Pennsylvania 17105
Jeremiah A. Collins
John M. West
Bredhoff & Kaiser, P.L.L.C.
Washington, D.C. 20036
Attorneys for Amicus,
Pennsylvania State Education
Association
OPINION OF THE COURT
SLOVITER, Circuit Judge.
At issue is whether the First Amendment precludes
imposition of civil damages for the disclosure of portions of
a tape recording of an intercepted telephone conversation
containing information of public significance when the
defendants, two radio stations, their reporter, and the
individual who furnished the tape recording, played no
direct or indirect role in the interception.
I.
BACKGROUND
A.
From the beginning of 1992 until the beginning of 1994,
Wyoming Valley West School District was in contract
negotiations with the Wyoming Valley West School District
Teachers' Union (the "Teachers' Union") over the terms of
the teachers' new contract. The negotiations, which were
markedly contentious, generated significant public interest
and were frequently covered by the news media.
Plaintiffs Gloria Bartnicki and Anthony F. Kane, Jr., as
well as defendant Jack Yocum, all were heavily involved in
3
the negotiating process. Bartnicki was the chief negotiator
on behalf of the Teachers' Union. Kane, a teacher at
Wyoming Valley West High School, served as president of
the local union. Yocum served as president of the Wyoming
Valley West Taxpayers' Association, an organization formed
by local citizens for the sole purpose of opposing the
Teachers' Union's proposals.
In May of 1993, Bartnicki, using her cellular phone, had
a conversation with Kane. They discussed whether the
teachers would obtain a three-percent raise, as suggested
by the Wyoming Valley West School Board, or a six-percent
raise, as suggested by the Teachers' Union. In the course of
their phone conversation, Kane stated:
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 . . . . Really, uh, really and
truthfully, because this is, you know, this is bad news
(undecipherable) The part that bothers me, they could
still have kept to their three percent, but they're again
negotiating in the paper. This newspaper report knew
it was three percent. What they should have said,``we'll
meet and discuss this.' You don't discuss the items in
public.
App. at 35-36. Bartnicki responded, "No," and, Kane
continued, "You don't discuss this in public . . . .
Particularly with the press." App. at 36.
This conversation, including the statements quoted
above, was intercepted and recorded by an unknown
person, and the tape left in Yocum's mailbox. Yocum
retrieved the tape, listened to it, and recognized the voices
of Bartnicki and Kane. He then gave a copy of the tape to
Fred Williams, also known as Frederick W. Vopper, of WILK
Radio and Rob Neyhard of WARM Radio, both local radio
stations. Williams repeatedly played part of the tape on the
air as part of the Fred Williams Show, a radio news/public
affairs talk show which is broadcast simultaneously over
WILK Radio and WGBI-AM. The tape was also aired on
some local television stations and written transcripts were
published in some newspapers.
4
B.
Bartnicki and Kane sued Yocum, Williams, WILK Radio,
and WGBI Radio (hereafter "media defendants") under both
federal and state law. They based their federal claims on
Title III of the Omnibus Crime Control and Safe Streets Act
of 1968, as amended by the Electronic Communications
Privacy Act of 1986, 28 U.S.C. S 2510 et seq., and their
state claims on the Pennsylvania Wiretapping and
Electronic Surveillance Control Act, 18 Pa. Cons. Stat.
S 5701 et seq. As relief, Bartnicki and Kane sought (1)
actual damages in excess of $50,000, (2) statutory damages
under 18 U.S.C. S 2520(c)(2), (3) liquidated damages under
18 Pa. Cons. Stat. S 5725(a)(1), (4) punitive damages, and
(5) attorneys' fees and costs.
Bartnicki, Kane, and the defendants each moved for
summary judgment. The District Court denied these
motions on June 14, 1996 and denied defendants' motion
to reconsider on November 8, 1996, specifically holding that
imposing liability on the defendants would not violate the
First Amendment.
The District Court subsequently certified two questions
as controlling questions of law: "(1) whether the imposition
of liability on the media Defendants under the [wiretapping
statutes] solely for broadcasting the newsworthy tape on
the Defendant Fred Williams' 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 aforesaid [wiretapping
statutes] on Defendant Jack Yocum solely for providing the
anonymously intercepted and recorded tape to the media
Defendants violates the First Amendment." App. at 388.
Williams, WILK Radio, and WGBI Radio subsequently
petitioned for permission to appeal. Yocum filed an answer
to the petition in which he joined the media defendants'
request that we hear this appeal. We granted the petition
by order dated February 26, 1998. The Pennsylvania State
Education Association submitted a brief as amicus curiae in
support of the appellees, and the United States has
intervened as of right pursuant to 28 U.S.C. S 2403.
5
C.
The District Court had jurisdiction to consider claims
based on the Omnibus Crime Control and Safe Streets Act
of 1968 pursuant to 28 U.S.C. S 1331. It had supplemental
jurisdiction pursuant to 28 U.S.C. S 1367 to consider
claims based on the Pennsylvania Wiretapping and
Electronic Surveillance Control Act. We have appellate
jurisdiction to review the District Court's substantive
determination pursuant to 28 U.S.C. S 1292(b).
The scope of our review in a permitted interlocutory
appeal is limited to questions of law raised by the
underlying order. We are not limited to answering the
questions certified, however, and may address any issue
necessary to decide the appeal. See Dailey v. National
Hockey League, 987 F.2d 172, 175 (3d Cir. 1993).
We review the grant or denial of a motion for summary
judgment de novo. See H.K. Porter Co. v. Pennsylvania Ins.
Guaranty Ass'n, 75 F.3d 137, 140 (3d Cir. 1996). We are
"required to apply the same test the district court should
have utilized initially," to view inferences to be drawn from
the underlying facts in the light most favorable to the party
opposing the motion, and to take the non-movant's
allegations as true whenever these allegations conflict with
those of the movant. Goodman v. Mead Johnson & Co., 534
F.2d 566, 573 (3d Cir. 1976).
D.
The Federal Omnibus Crime Control and Safe Streets Act
of 1968 (the "Federal Wiretapping Act") provides in relevant
part:
(1) Except as otherwise specifically provided in this
chapter any person who --
. . .
(c) intentionally discloses, or endeavors to discl ose,
to any other person the contents of any wire, oral, or
electronic communication, knowing or having reason
to know that the information was obtained through
the interception of a wire, oral, or electronic
communication in violation of this subsection;
6
(d) intentionally uses, or endeavors to use, the
contents of any wire, oral, or electronic
communication, knowing or having reason to know
that the information was obtained through the
interception of a wire, oral, or electronic
communication in violation of this subsection . . .
shall be punished as provided in subsection (4) or shall
be subject to suit as provided in subsection (5).
18 U.S.C. S 2511. It continues:
(a) In general. -- Except as provided in section
2511(2)(a)(ii), any person whose wire, oral, or electronic
communication is intercepted, disclosed, or
intentionally used in violation of this chapter may in a
civil action recover from the person or entity which
engaged in the violation such relief as may be
appropriate.
18 U.S.C. S 2520. The Federal Wiretapping Act thus creates
civil and criminal causes of action against those who
intentionally use or disclose to another the contents of a
wire, oral, or electronic communication, knowing or having
reason to know that the information was obtained in
violation of the statute.
The Pennsylvania Wiretapping and Electronic
Surveillance Control Act (the "Pennsylvania Wiretapping
Act") is similar. It provides:
Except as otherwise provided in this chapter, a person
is guilty of a felony of the third degree if he:
. . .
(2) intentionally discloses or endeavors to di sclose to
any other person the contents of any wire, electronic or
oral communication, or evidence derived therefrom,
knowing or having reason to know that the information
was obtained through the interception of a wire,
electronic or oral communication; or
(3) intentionally uses or endeavors to use the
contents of any wire, electronic or oral communication,
or evidence derived therefrom, knowing or having
reason to know that the information was obtained
7
through the interception of a wire, electronic or oral
communication.
18 Pa. Cons. Stat. S 5703. It further provides:
(a) Cause of action. -- Any person whose wire,
electronic or oral communication is intercepted,
disclosed or used in violation of this chapter shall have
a civil cause of action against any person who
intercepts, discloses or uses or procures any other
person to intercept, disclose or use, such
communication . . . .
18 Pa. Cons. Stat. S 5725. The Pennsylvania Wiretapping
Act thus also creates civil and criminal causes of action
based on the knowing or negligent use or disclosure of
illegally intercepted material. We refer to the federal and
state statutes at issue here as "The Wiretapping Acts."
Both Acts also explicitly authorize the recovery of civil
relief. The Federal Wiretapping Act provides that a court
may "assess as damages whichever is the greater of --
(A) the sum of the actual damages suffered by the
plaintiff and any profits made by the violator as a
result of the violation; or
(B) statutory damages of whichever is the grea ter of
$100 a day for each day of violation or $10,000."
18 U.S.C. S 2520(c)(2). The Pennsylvania Wiretapping Act
specifies that a successful plaintiff "shall be entitled to
recover from any such person:
(1) Actual damages, but not less than liquidated
damages computed at the rate of $100 a day for each
day of violation, or $1,000, whichever is higher.
(2) Punitive damages.
(3) A reasonable attorney's fee and other litigati on
costs reasonably incurred."
18 Pa. Cons. Stat. S 5725(a).
8
II.
DISCUSSION
A.
As the District Court acknowledged and the parties do
not dispute, the media defendants neither intercepted nor
taped the conversation between Bartnicki and Kane.
Indeed, the record does not disclose how or by whom the
conversation was intercepted. The media defendants argued
before the District Court that these facts preclude a court
from finding them liable under the Wiretapping Acts. The
District Court disagreed. It concluded that, "a violation of
these acts can occur by the mere finding that a defendant
had a reason to believe that the communication that he
disclosed or used was obtained through the use of an illegal
interception." Bartnicki v. Vopper, No. 94-1201, slip op. at
5 (M.D. Pa. June 17, 1996). It further opined that such an
interpretation of the statute "adheres to the purpose of the
act which was to protect wire and oral communications and
an individual's privacy interest in such." Id. The District
Court concluded that genuine disputes of material fact
remain regarding (1) whether the Bartnicki-Kane
conversation was illegally intercepted, and if so (2) whether
any or all of the defendants knew or had reason to know
that that conversation was illegally intercepted. See id. at 5,
10. The parties do not challenge these holdings on appeal.
Hence, this case does not involve the prohibitions of the
Wiretapping Acts against the actual interception of wire
communications. Nor does it involve any application of the
Acts' criminal provisions. Rather, this case focuses
exclusively on the portions of the Wiretapping Acts that
create causes of action for civil damages against those who
use or disclose intercepted communications and who had
reason to know that the information was received through
an illegal interception.
The defendants argue that applying the damages
provision of the Wiretapping Acts to hold them liable for
disclosing the Bartnicki-Kane conversation violates the
First Amendment. They contend that this case is controlled
9
by the Supreme Court's decisions in a series of cases
addressing the tension between the First Amendment and
the right to privacy.
In the first of these cases, Cox Broadcasting Corp. v.
Cohn, 420 U.S. 469 (1975), the Court considered a private
right of action created by a Georgia statute making it a
"misdemeanor to publish or broadcast the name or identity
of a rape victim." Id. at 472. The Court was asked to decide
whether Georgia could impose civil liability on a television
broadcasting company, among others, for accurately
broadcasting the name of a deceased, 17-year-old rape
victim where the reporter obtained the information from
official court records open to public inspection.
In the next case, Landmark Communications, Inc. v.
Virginia, 435 U.S. 829 (1978), the Court reviewed a Virginia
statute that both provided for the confidentiality of judicial
disciplinary proceedings and made it unlawful to divulge
the identity of a judge subject to such proceedings prior to
the filing of a formal complaint with the state's highest
court. The Supreme Court was asked to decide whether
Virginia could criminally prosecute a newspaper for
publishing accurate information about such proceedings
where the newspaper received the information from a
participant in the proceedings who had the right to receive
the information but not the right to divulge it. See id. at
830.
Finally, in Smith v. Daily Mail Publishing Co., 443 U.S. 97(1979), the Court considered a West Virginia statute
"making it a crime for a newspaper to publish, without the
written approval of the juvenile court, the name of any
youth charged as a juvenile offender." Id. at 98. The Court
was asked to decide whether West Virginia could prosecute
two newspapers for publishing the name of a 14-year-old
student who was accused of shooting and killing a 15-year-
old classmate at the local junior high school. The
newspapers had obtained the student's name by
interviewing witnesses at the school.
The Supreme Court concluded that each of these
attempts to punish or deter the press's publication of
truthful information was unconstitutional. The Smith Court,
10
in summarizing the Court's past cases, read them as
suggesting at least two propositions: (1) "state action to
punish the publication of truthful information seldom can
satisfy constitutional standards," and (2) "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 to further a state interest of the highest
order." 491 U.S. at 102, 103; accord Florida Star v. B.J.F.,
491 U.S. 524, 533-37 (1989) (adopting and explaining the
justification for the second Smith proposition).
The defendants contend that the information disclosed
about the Bartnicki-Kane conversation was lawfully
obtained within the meaning of the Smith decision because
the defendants in this case neither participated in the
presumed interception nor violated any law by receiving the
information. They conclude that the Wiretapping Acts may
not be applied to hold them liable without first meeting the
test of strict scrutiny.
Bartnicki and Kane respond by arguing that the
information at issue here was unlawfully obtained because
the original interception presumably was illegal. They
conclude that applying the Acts to hold the defendants
liable is constitutional without subjecting those statutes to
any level of First Amendment scrutiny. The parties thus
assume that we should determine the constitutionality of
the Wiretapping Acts by first determining whether the
information disclosed was "lawfully" or "unlawfully"
obtained.
Although we are cognizant of the importance of the Cox,
Landmark, and Smith cases as background, we decline to
read Smith as controlling here. The Supreme Court has
explicitly repudiated any suggestion that Smith answers the
question whether a statute that limits the dissemination of
information obtained by means of questionable legality is
subject to First Amendment scrutiny. In Florida Star, the
Court stated, "The [Smith] principle does not settle the issue
whether, in cases where information has been acquired
unlawfully by a newspaper or by a source, government may
ever punish not only the unlawful acquisition, but the
ensuing publication as well." 491 U.S. at 535 n.8. Similarly,
11
the Smith Court was careful to note that its holding did not
reach the issue of unlawful press access. See 443 U.S. at
105.
Moreover, the Supreme Court's practice of narrowly
circumscribing its holdings in this area strongly suggests
that a rule for undecided cases should not be derived by
negative implication from its reported decisions. The
defendant in Landmark urged the Court to adopt a blanket
rule, protecting the press from any liability for truthfully
reporting information concerning public officials and their
public duties, but the Supreme Court refused to do so. See
435 U.S. at 838. Instead it considered the very narrow
question: "whether [a state] may subject persons, including
newspapers, to criminal sanctions for divulging information
regarding proceedings before a state judicial commission
which is authorized to hear complaints as to judges'
disability or misconduct, when such proceedings are
declared confidential by the State Constitution and
statutes." Id. at 830.
Similarly, the Florida Star Court refused"appellant's
invitation to hold broadly that truthful publication may
never be punished consistent with the First Amendment."
491 U.S. at 532. It stated: "Our cases have carefully
eschewed reaching this ultimate question, mindful that the
future may bring scenarios which prudence counsels our
not resolving anticipatorily. . . . We continue to believe that
the sensitivity and significance of the interests presented in
clashes between First Amendment and privacy rights
counsel relying on limited principles that sweep no more
broadly than the appropriate context of the instant case."
Id. at 532-33.
In keeping with the Supreme Court's approach to
deciding these illustrative cases, we will resolve the present
controversy not by mechanically applying a test gleaned
from Cox and its progeny, but by reviewing First
Amendment principles in light of the unique facts and
circumstances of this case.
B.
The District Court based its conclusion that the damages
provision of the Wiretapping Acts may constitutionally be
12
applied to penalize the defendants' conduct primarily on the
Supreme Court's decision in Cohen v. Cowles Media Co.,
501 U.S. 663 (1991). The District Court interpreted that
decision as standing for the proposition that a generally
applicable law that neither singles out the press for special
burdens nor purposefully restricts free expression does not
offend the First Amendment. See Bartnicki, slip op. at 8
("Generally applicable laws ``do not offend the First
Amendment simply because their enforcement against the
press has incidental effects on its ability to gather and
report the news.' " (quoting Cohen v. Cowles Media Co., 501
U.S. 663, 669 (1991))). The District Court emphasized
language from the Cohen opinion in which the Supreme
Court stated, " ``[i]t is . . . beyond dispute that the publisher
of a newspaper has no special immunity from the
application of general laws. He has no special privilege to
invade the rights and liberties of others.' " Bartnicki, slip op.
at 8 (quoting Cohen, 501 U.S. at 670).
After reviewing the Federal and Pennsylvania Wiretapping
Acts, the District Court found that neither Act targets or
singles out the press. The District Court also opined that
these laws are not "specifically designed to chill free
speech." Id. at 7. Based on this finding, it concluded that
"both acts are matters of general applicability" and, without
further analysis, denied defendants' motion for summary
judgment on the basis of the First Amendment.
There is reason to question whether the damages
provisions of the Acts are properly categorized as generally
applicable laws. Arguably, that term should be reserved for
laws that directly regulate conduct rather than speech. See
infra at 15. Moreover, it may well be that be that by
banning the disclosure of certain information, the damages
provisions impose a disproportionate burden on the press.
Indeed, we would not be surprised to find that a prohibition
on disclosure falls more heavily on the press, which is in
the business of disseminating information, than it does on
ordinary citizens whose opportunities for spreading
information are more limited.
We need not resolve that question, however, because we
conclude that, by suggesting that generally applicable laws
do not require First Amendment scrutiny when applied to
13
the press, the District Court read the cited portions of
Cohen too broadly. In Cohen, the plaintiff, who was actively
associated with the election staff of a gubernatorial
candidate, offered to provide two newspapers with some
information concerning the candidate's opponent in
exchange for a promise that the newspapers would not use
his name in any resulting story. After having made the
promise and secured the information, each newspaper
proceeded to publish a story identifying Cohen as the
source of the information and highlighting his role in the
gubernatorial campaign. Cohen lost his job the day the
stories ran. He then sued the publishers of the newspapers
in state court and recovered damages under a theory of
promissory estoppel. The publishers appealed, arguing that
holding them liable for their breached promises would
violate the First Amendment.
It is in the context of rejecting this argument that the
Supreme Court stated, "[G]enerally applicable laws do not
offend the First Amendment simply because their
enforcement against the press has incidental effects on its
ability to gather and report the news." Cohen , 501 U.S. at
669. The Court explained that "enforcement of such general
laws against the press is not subject to stricter scrutiny
than would be applied to enforcement against other
persons or organizations." Id. at 670.
The Cohen opinion thus instructs that a law of general
applicability, which neither targets nor imposes
disproportionate burdens upon the press, is enforceable
against the press to the same extent that it is enforceable
against individuals or organizations. The question remains
whether the damages provisions of the Wiretapping Acts
may constitutionally be applied to penalize individuals or
organizations for disclosing material they know or have
reason to know was illegally intercepted who had no part in
the interception.
C.
In order to determine whether the provisions for civil
sanctions from the Wiretapping Acts may constitutionally
be applied to penalize defendants' disclosure, we must first
14
decide what degree of First Amendment scrutiny should be
applied.
The United States argues that the Federal Wiretapping
Act is subject to intermediate rather than strict scrutiny. It
bases this contention on two subsidiary assertions: (1) that
these are "general law[s] that impose[ ] only incidental
burdens on expression" and (2) that "to the extent that Title
III restricts speech in particular cases, it does so in an
entirely content-neutral fashion." United States' Br. at 22.
It states that "[a] statute satisfies intermediate scrutiny, if
it furthers an important or substantial governmental
interest, if the governmental interest is unrelated to the
suppression of free expression, and if the incidental
restriction on speech is not unnecessarily great." United
States' Br. at 11-12. We assume that the United States'
arguments apply equally to the Pennsylvania Wiretapping
Act, which is substantially similar to the Federal
Wiretapping Act.
We first consider the United States' argument that the
disclosure provisions of the Wiretapping Acts merit only
intermediate scrutiny because they impose only incidental
burdens on expression. In support, the United States cites
a series of Supreme Court decisions, beginning with United
States v. O'Brien, 391 U.S. 367 (1968).
O'Brien was arrested and convicted for burning his draft
card on the steps of the South Boston Courthouse. On
appeal, O'Brien argued that the federal law, making it an
offense to "forge[ ], alter[ ], knowingly destroy[ ], knowingly
mutilate[ ], or in any manner change[ ] . . . such [a]
certificate," was unconstitutional. Id. at 370 (italics
omitted). The Court of Appeals for the First Circuit agreed
that this provision unconstitutionally abridged the freedom
of speech.
The Supreme Court, however, reversed. It opined that the
statute "on its face deals with conduct having no
connection with speech. It prohibits the knowing
destruction of certificates issued by the Selective Service
System, and there is nothing necessarily expressive about
such conduct." Id. at 375.1 The Supreme Court nonetheless
_________________________________________________________________
1. Respected commentators have taken issue with this holding in
O'Brien. See, e.g., Lawrence H. Tribe, American Constitutional Law,
S 312-6 at 824-25 (2d ed. 1988).
15
recognized that O'Brien had burned his draft card as a form
of protest against war. Assuming for the sake of argument
that "the alleged communicative element in O'Brien's
conduct [was] sufficient to bring into play the First
Amendment," the Supreme Court held that the statute was
still a permissible regulation. Id. at 376. It reasoned that
"when ``speech' and ``nonspeech' elements are combined in
the same course of conduct, a sufficiently important
governmental interest in regulating the nonspeech element
can justify incidental limitations on First Amendment
freedoms." Id. The Court stated that such"a government
regulation is sufficiently justified if it is within the
constitutional power of the Government; if it furthers an
important or substantial governmental interest; if the
governmental interest is unrelated to the suppression of
free expression; and if the incidental restriction on alleged
First Amendment freedoms is no greater than essential to
the furtherance of that interest." Id. at 377.
In O'Brien and its progeny, the Supreme Court
distinguished between "expressive conduct protected to
some extent by the First Amendment" and oral or written
expression, which is fully protected by that amendment.
Clark v. Community for Creative Non-Violence, 468 U.S. 288,
293 (1984). "[C]onduct that is intended to be
communicative and that, in context, would reasonably be
understood by the viewer to be communicative" is
"[s]ymbolic expression," otherwise known as expressive
conduct. Id. at 294. The cases the United States cites in
addition to O'Brien also focus on the permissibility of
regulating expressive conduct. See Barnes v. Glen Theater,
Inc., 501 U.S. 560 (1991) (Indiana statute prohibiting
complete nudity in public places); Arcara v. Cloud Books,
Inc., 478 U.S. 697 (1986) (New York statute authorizing
closure of building found to be a public health nuisance);
United States v. Albertini, 472 U.S. 675 (1985) (federal
statute making it unlawful to reenter a military base after
having been barred by the commanding officer); Clark, 468
U.S. at 289 (National Park Service regulation prohibiting
camping in Lafayette Park); cf. R.A.V. v. City of St. Paul, 505
U.S. 377 (1992) (Minnesota statute prohibiting display of
certain objects, including a burning cross or Nazi swastika).
16
By citing this line of cases in support of its position that
intermediate scrutiny applies here, the United States
apparently suggests that defendants' actions in disclosing
the contents of the Bartnicki-Kane conversation are
properly considered "expressive conduct" rather than
speech. If this is the thrust of the government's citations, it
is not persuasive. The acts on which Bartnicki and Kane
base their complaint are Yocum's "intentionally disclos[ing
a] tape to several individuals and media sources"2 and the
media defendants' "intentionally disclos[ing] and
publish[ing] to the public the entire contents of the private
telephone conversation between Bartnicki and Kane." App.
at 149. If the acts of "disclosing" and "publishing"
information do not constitute speech, it is hard to imagine
what does fall within that category, as distinct from the
category of expressive conduct.
We have no doubt that it is possible to identify some act
by the media defendants in the course of preparing the
broadcasts during which the tape was disclosed that falls
within our ordinary understanding of the term conduct.
However, this fact does not alter the analysis. The Supreme
Court has observed, "It is possible to find some kernel of
expression in almost every activity a person undertakes --
for example, walking down the street or meeting one's
friends at a shopping mall -- but such kernel is not
sufficient to bring the activity within the protection of the
First Amendment." Barnes, 501 U.S. at 570 (quoting Dallas
v. Stanglin, 490 U.S. 19, 25 (1989)). Similarly, although it
may be possible to find some kernel of conduct in almost
every act of expression, such kernel of conduct does not
take the defendants' speech activities outside the protection
of the First Amendment.
The United States nonetheless insists that intermediate
scrutiny is appropriate because the statute, read as a
whole, primarily prohibits conduct rather than speech. It
notes that the prohibition in 18 U.S.C. S 2511(d) against
_________________________________________________________________
2. The complaint also alleges that Yocum "obtained a tape of the
surreptitiously recorded telephone conversation," App. at 149, but the
complaint does not allege that the mere obtaining of the tape violates
either statute.
17
using or endeavoring to use intercepted material
encompasses more than disclosure. The government asserts
that it precludes, for example, a person or company from
using intercepted material to develop a competing product,
to craft a negotiating strategy, or to justify taking
disciplinary action against an employee. United States' Br.
at 22-23.
The government cites no support for the surprising
proposition that a statute that governs both pure speech
and conduct merits less First Amendment scrutiny than
one that regulates speech alone. We are convinced that this
proposition does not accurately state First Amendment law.
A statute that prohibited the "use" of evolution theory
would surely violate the First Amendment if applied to
prohibit the disclosure of Charles Darwin's writings, much
as a law that directly prohibited the publication of those
writings would surely violate that Amendment.
Because the defendants' acts in this case -- the
disclosure and broadcast of information -- contain no
significant "nonspeech" elements, we need not decide
whether this statute could properly be subjected to lesser
scrutiny if applied to prohibit "uses" that do involve such
"nonspeech" elements. We merely hold that, when a statute
that regulates both speech and conduct is applied to an act
of pure speech, that statute must meet the same degree of
First Amendment scrutiny as a statute that regulates
speech alone.
The United States' second argument -- that intermediate
scrutiny applies because the Acts are content-neutral -- is
more persuasive.
When the state uses a "content-based" regulation to
restrict free expression, particularly political speech, that
regulation is subject to "the most exacting scrutiny." Boos
v. Barry, 485 U.S. 312, 321 (1988); Phillips v. Borough of
Keyport, 107 F.3d 164, 172 (3d Cir. 1997) (en banc). It will
not be upheld unless the state can show that it"is
necessary to serve a compelling state interest and that it is
narrowly drawn to achieve that end." Boos, 485 U.S. at
321; see also Phillips, 107 F.3d at 172 ("State regulations of
speech that are not regarded as content neutral will be
18
sustained only if they are shown to serve a compelling state
interest in a manner which involves the least possible
burden on expression.").
By contrast, when the state places a reasonable"content-
neutral" restriction on speech, such as a time, place and
manner regulation, that regulation need not meet the same
high degree of scrutiny. "Content-neutral" restrictions are
valid under the First Amendment provided that they"are
justified without reference to the content of the regulated
speech, that they are narrowly tailored to serve a significant
governmental interest, and that they leave open ample
alternative channels for communication of information."3
Clark, 468 U.S. at 293.
We recognize that an argument could be made that the
Wiretapping Acts are content-based. Ordinarily, the
distinction between permissible and impermissible
regulation of speech depends on whether the law at issue
regulates the substantive content of the speech (what is
said) or whether it merely regulates the time, place, or
manner of the speech (when, where, at what volume, and
through which medium it is said). The former regulations
are content-based while the latter are content-neutral. The
essence of the distinction lies in the fact that, if the
regulation were content-based, it would not be possible to
determine whether a particular speech is prohibited
without referring to the substantive import of that
expression.
The United States contends that the Wiretapping Acts are
not content-based even in the literal sense referred to above
because the Acts define the content that is prohibited by
reference to the manner in which the information was
acquired, rather than to its subject matter or viewpoint. We
suspect that the mere fact that a regulation defines the
category of content that is prohibited by reference to its
source rather than its subject matter is unlikely to be
sufficient to justify treating the regulation as content-
neutral. For example, one might argue that a ban on the
_________________________________________________________________
3. This standard is little different from that announced in O'Brien as
governing conduct regulations that incidentally restrict expressive
behavior. See Clark, 468 U.S. at 298.
19
publication of information obtained through
experimentation on human embryos would raise sufficient
First Amendment concerns to merit heightened scrutiny,
even if such experimentation were illegal.
The Supreme Court's decision in Renton v. Playtime
Theatres, Inc., 475 U.S. 41 (1985), however, suggests that
we are not limited to a literal interpretation of the phrase
"content-neutral" but may determine whether speech is
content-neutral or content-based with reference to the
government's proffered justification for the restriction. In
Renton, the Supreme Court described "content-neutral"
speech restrictions as those that "are justified without
reference to the content of the regulated speech." Id. at 48
(quoting Virginia Pharmacy Bd. v. Virginia Citizens
Consumer Council, Inc., 425 U.S. 748, 771 (1976)). We
therefore turn to consider the purpose or purposes the
Wiretapping Acts are meant to serve.
The Senate Report describes the purposes of the Federal
Wiretapping Act as: "(1) protecting the privacy of wire and
oral communications, and (2) delineating on a uniform
basis the circumstances and conditions under which the
interception of wire and oral communications may be
authorized." S. Rep. No. 90-1079 (1968), reprinted in 1968
U.S.C.C.A.N. 2112, 2153. Congress thus focused on privacy
in adopting 18 U.S.C. S 2511, the provision that prohibits
the interception of wire, oral, or electronic communications,
as well as the use or disclosure of the contents of illegally
intercepted communications. Congress did not, however,
define the privacy interest that it intended the Act to
protect.
As commonly understood, the right to privacy
encompasses both the right "to be free from unreasonable
intrusions upon [one's] seclusion" and the right to be free
from "unreasonable publicity concerning [one's] private life."
Fultz v. Gilliam, 942 F.2d 396, 401 (6th Cir. 1991); see also
Whalen v. Roe, 429 U.S. 589 (1977); Paul P. v. Verniero,
170 F.3d 396 (3d Cir. 1999). The Sixth Circuit has opined
that "[t]he prohibitions Congress incorporated into section
2511(1) of Title III protect both these interestsfirst, by
prohibiting the surreptitious interception of private
communications in the first instance -- a highly offensive
20
physical intrusion on the victim's private affairs-- and
second, by circumscribing the dissemination of private
information so obtained." Fultz, 942 F.2d at 401 (footnote
omitted). The First Circuit has similarly suggested that by
enacting Title III Congress recognized "that the invasion of
privacy is not over when the interception occurs but is
compounded by disclosure." Providence Journal Co. v. FBI,
602 F.2d 1010, 1013 (1st Cir. 1979); see also Fultz, 942
F.2d at 402 ("Each time the illicitly obtained recording is
replayed to a new and different listener, the scope of the
invasion widens and the aggrieved party's injury is
aggravated.").
We have no doubt that the state has a significant interest
in protecting the latter privacy right -- the right not to have
intimate facts concerning one's life disclosed without one's
consent. That right is a venerable one whose constitutional
significance we have recognized in the past. See Paul P.,
170 F.3d at 401-02 (collecting cases). We also have no
doubt that the prohibition on using or disclosing the
contents of an illegally intercepted communication serves
that interest by deterring the publicization of private facts.
We are less certain, however, that the desire to protect
the privacy interest that inheres in private facts is a
content-neutral justification for restricting speech. The
Supreme Court has instructed that "[l]isteners' reaction to
speech is not a content-neutral basis for regulation."
Forsyth County v. Nationalist Movement, 505 U.S. 123, 134
(1992); accord Lind v. Grimmer, 30 F.3d 115, 117 (9th Cir.
1994) ("Because the[ ] concerns [addressed by the statute]
all stem from the direct communicative impact of speech,
we conclude that section 11-216(d) regulates speech on the
basis of its content.") As Justice O'Connor explained in
Boos, "[r]egulations that focus on the direct impact of
speech on its audience" -- the speech's "primary effects" --
are not properly treated as content-neutral under Renton.
485 U.S. at 321 (Opinion of O'Connor, J.).
Although the defendants do not argue that the
regulations at issue are content-based, there is a not
implausible argument that the injury associated with the
disclosure of private facts stems from the communicative
impact of speech that contains those facts, i.e. having
21
others learn information about which one wishes they had
remained ignorant. Thus, under the Supreme Court's
jurisprudence, the injury associated with such disclosure
constitutes a "primary effect" of the disfavored speech,
rather than a "secondary effect." This reasoning might
suggest that a statute that regulated expression for the
purpose of protecting the right not to have private facts
disclosed without permission would be subject to strict
scrutiny as a content-based regulation.
We do not decide whether the Wiretapping Acts would
indeed be properly categorized as content-based if justified
on the basis of a need to prevent the disclosure of private
facts because the United States for the most part eschews
reliance on that justification in explaining the purpose of
those acts. Instead, the United States argues that"the
fundamental purpose of Title III is to maintain the
confidentiality of wire, electronic, and oral
communications." United States' Br. at 33. It reasons that
"prohibiting the use of illegally intercepted communication
. . . ``strengthen[s] subsection (1)(a),' the provision that
imposes the underlying ban on unauthorized interception,
``by denying the wrongdoer the fruits of his labor' and by
eliminating the demand for those fruits by third parties."
United States' Br. at 33. We are satisfied that this latter
justification does not rely on the communicative impact of
speech and, therefore, that the Acts are properly treated as
content-neutral.
D.
Accordingly, we adopt the government's position that we
should apply intermediate scrutiny in our analysis of the
issue before us. In doing so, we must first fix upon an
acceptable definition of the term "intermediate scrutiny."4
_________________________________________________________________
4. In a recent article, the author uses the term" ``intermediate scrutiny'
to refer to a test that requires a state interest which is greater than
legitimate but less than compelling and a fit between means and end
that is not necessarily narrowly tailored but has more than just an
incidental connection." Jay D. Wexler, Defending the Middle Way:
Intermediate Scrutiny as Judicial Minimalism, 66 Geo. Wash. L. Rev. 298,
300 n.15 (1998).
22
Intermediate scrutiny is used by the Court in a wide variety
of cases calling for some balancing. Thus, intermediate
scrutiny has been applied to statutes that discriminate on
the basis of gender. See Craig v. Boren, 429 U.S. 190, 200
(1976) (holding that prohibiting sale of 3.2% beer to males
under 21 and females under 18 did not "closely serve" goal
of promoting traffic safety). It is the review standard used to
examine whether an even-handed regulation promulgated
for a legitimate public interest violates the dormant
Commerce Clause. See Pike v. Bruce Church, Inc., 397 U.S.
137, 142 (1970) (describing balancing test for state
regulation); Southern Pac. Co. v. Arizona ex rel. Sullivan,
325 U.S. 761 (1945) (invalidating limit on train length as
not "plainly essential" to further state interest in safety).
And in the First Amendment context, intermediate scrutiny
has been applied to commercial speech cases, see Central
Hudson Gas & Elec. Corp. v. Public Serv. Comm'n., 447 U.S.
557, 566 (1980) (establishing four-part test for commercial
speech regulation), and to examine the validity of time,
place, and manner regulations, see United States v. Grace,
461 U.S. 171 (1983) (invalidating statute prohibiting
displaying flag, banner or device in Supreme Court building
or on its grounds).
Admittedly, the intermediate scrutiny test applied varies
to some extent from context to context, and case to case.
But it always encompasses some balancing of the state
interest and the means used to effectuate that interest. And
despite the frequent tendency to assume that regulations
that are reviewed under less exacting scrutiny than strict
scrutiny will be upheld, each of the cases referred to above
as applying intermediate scrutiny held that the regulation
in question was unconstitutional. The reasons varied.
Sometimes, the Court held the asserted government
interest insufficient to justify an expansive prohibition and
noted the government failed to demonstrate that a lesser
prohibition would not adequately serve its purpose. See,
e.g., Schneider v. State, 308 U.S. 147, 162 (1939) (holding
that state interest in preventing littering did not justify ban
on leafletting); Village of Schaumburg v. Citizens for a Better
Environment, 444 U.S. 620, 636 (1980) (invalidating
prohibition on charitable solicitations for certain charities
as too destructive of First Amendment interests). Other
23
times, the Court held the government failed to show that
the challenged regulation substantially served the asserted
government interest. See, e.g., Grace, 461 U.S. at 182. It
should also be noted that in making the examination into
whether the means chosen were those appropriate to the
government interest, the Court has not always made a
distinction between its analysis for purposes of
intermediate scrutiny and for strict scrutiny. See, e.g.,
Anderson v. Celebrezze, 460 U.S. 780 (1983) (invalidating
candidate registration statute because voters' associational
and voting rights outweighed state interest).
The test usually applied in First Amendment cases to
content-neutral regulation requires an examination of
whether the regulation is "narrowly tailored to serve a
significant governmental interest" and "leave[s] open ample
alternative channels for communication." Clark v.
Community for Creative Non-Violence, 468 U.S. 288, 293
(1984). There is a considerable number of First Amendment
cases in which the Supreme Court, applying intermediate
scrutiny, has found that the regulation at issue, albeit
designed to advance legitimate state interests, failed to
withstand that scrutiny. A review of illustrative cases
provides some indication of the Court's analytic approach
in such instances.
In Schneider, the Court recognized that there is a
legitimate government interest in preventing street littering
but nevertheless found that "the purpose to keep the
streets clean and of good appearance is insufficient to
justify an ordinance which prohibits a person rightfully on
a public street from handing literature to one willing to
receive it." 308 U.S. at 162. The Court termed the burden
imposed on the cities in cleaning and caring for the streets
"an indirect consequence of such distribution," and one
that resulted from the "constitutional protection of the
freedom of speech and press." Id. The Court continued, in
language significant for this case, "[t]here are obvious
methods of preventing littering. Amongst these is the
punishment of those who actually throw papers on the
streets." Id. (emphasis added).
Similarly, in Village of Schaumburg, the Court recognized
that the government had a substantial interest in
24
protecting the public from fraud, crime and undue
annoyance, but held that the proffered interest, which the
government sought to accomplish by an ordinance that
prohibited the solicitation of contributions by charitable
organizations that did not use at least 75% of their receipts
for "charitable purposes," was "only peripherally promoted
by the 75-percent requirement and could be sufficiently
served by measures less destructive of First Amendment
interests." 444 U.S. at 636.
Both Schneider and Schaumburg were cited by the Court
in a later case to illustrate "the delicate and difficult task
[that] falls upon the courts to weigh the circumstances and
to appraise the substantiality of the reasons advanced in
support of the regulation of the free enjoyment of[First
Amendment] rights." Schad v. Borough of Mount Ephraim,
452 U.S. 61, 70 (1981) (quoting Schneider, 308 U.S. at
161). In Schad, the Court invalidated a zoning ordinance
that excluded live entertainment, including nude dancing,
throughout the borough after finding that the borough
"ha[d] not adequately justified its substantial restriction of
protected activity." Id. at 72. Justice Blackmun's concurring
opinion makes clear that the burden to "articulate, and
support, a reasoned and significant basis" for the
governmental regulation should not be viewed as de
minimis, even when the regulation is subjected to
intermediate scrutiny. Id. at 77; see also Geoffrey R. Stone,
Content-Neutral Restrictions, 54 U. Chi. L. Rev. 46, 52-53
(1987) (describing intermediate scrutiny as a test that
"takes seriously the inquiries into the substantiality of the
governmental interest and the availability of less restrictive
alternatives.").
With the Supreme Court precedent as a guide, we
examine whether the government has shown that its
proffered interest is sufficiently furthered by application to
these defendants of the damages provisions of the
Wiretapping Acts to justify the impingement on the
protected First Amendment interests at stake.
As noted above, the United States contends that the
Wiretapping Acts serve the government's interest in
protecting privacy by helping "maintain the confidentiality
of wire, electronic, and oral communications." United
25
States' Br. at 33. Undoubtedly, this is a significant state
interest. We do not understand the defendants to deny that
there is an important governmental interest served by the
Wiretapping Acts. However, the government recognizes that
not all of the provisions of the Wiretapping Acts are being
challenged. In fact, only a portion of those Acts are at issue
here -- the provisions imposing damages and counsel fees
for the use and disclosure of intercepted material on those
who played no part in the interception.
The United States asserts that these provisions protect
the confidentiality of communications in two ways: (1) "by
denying the wrongdoer the fruits of his labor" and (2) "by
eliminating the demand for those fruits by third parties."
United States' Br. at 33. In this case, however, there is no
question of "denying the wrongdoer the fruits of his labor."
The record is devoid of any allegation that the defendants
encouraged or participated in the interception in a way that
would justify characterizing them as "wrongdoers." Thus,
the application of these provisions to penalize an individual
or radio stations who did participate in the interception and
thereafter disclosed the intercepted material is not before
us.
We therefore focus on the United States' second
contention -- that the provisions promote privacy by
eliminating the demand for intercepted materials on the
part of third parties. The connection between prohibiting
third parties from using or disclosing intercepted material
and preventing the initial interception is indirect at best.
The United States has offered nothing other than its ipse
dixit in support of its suggestion that imposing the
substantial statutory damages provided by the Acts on
Yocum or the media defendants will have any effect on the
unknown party who intercepted the Bartnicki-Kane
conversation. Nor has the United States offered any basis
for us to conclude that these provisions have deterred any
other would-be interceptors.5 Given the indirectness of the
_________________________________________________________________
5. As the Supreme Court recently emphasized in invalidating a
prohibition on the receipt of honoraria by government employees, "[w]hen
the government defends a regulation on speech . . . it must do more
than simply ``posit the existence of the disease sought to be cured.' . . .
26
manner in which the United States claims the provisions
serve its interest, we are not prepared to accept the United
States' unsupported allegation that the statute is likely to
produce the hypothesized effect. See Landmark
Communications, Inc. v. Virginia, 435 U.S. 829, 841 (1978)
("The Commonwealth has offered little more than assertion
and conjecture to support its claim that without criminal
sanctions the objectives of the statutory scheme would be
seriously undermined."). Faced with nothing "more than
assertion and conjecture," it would be a long stretch indeed
to conclude that the imposition of damages on defendants
who were unconnected with the interception even
"peripherally promoted" the effort to deter interception. See
Village of Schaumburg, 444 U.S. at 636.
When the state seeks to effectuate legitimate state
interests,
it must do so by narrowly drawn regulations designed
to serve those interests without unnecessarily
interfering with First Amendment freedoms. Hynes v.
Mayor of Oradell, 425 U.S. at 620; First National Bank
of Boston v. Bellotti, 435 U.S. 765, 786 (1978)."Broad
prophylactic rules in the area of free expression are
suspect. Precision of regulation must be the
touchstone. . . ." NAACP v. Button, 371 U.S. 415, 438
(1963) (citations omitted).
Village of Schaumburg, 444 U.S. at 637.
In Village of Schaumburg, the Court stated that the
Village's legitimate interest in preventing fraud could be
better served by requiring solicitors to inform the public of
the uses made of their contributions, than by prohibiting
solicitation. Id. Similarly, in Martin v. Struthers, 319 U.S.
141, 147-48 (1943), the Court held that in lieu of a
complete prohibition of door-to-door solicitation, with its
_________________________________________________________________
It must demonstrate that the recited harms are real, not merely
conjectural, and that the regulation will in fact alleviate these harms in
a
direct and material way." United States v. National Treasury Employees
Union, 513 U.S. 454, 475 (1995) (citation and internal quotation omitted)
(emphasis added).
27
draconian impact on First Amendment values, the City
could have used the less restrictive means of punishing
those who trespass "in defiance of the previously expressed
will of the occupant." Indeed, the Wiretapping Acts already
provide for punishment of the offender, i.e., the individual
who intercepted the wire communication and who used or
disclosed it. See Schneider, 308 U.S. at 162 (city should
prevent littering by punishing litterers, not by prohibiting
leafleting). Those who indirectly participated in the
interception, either by aiding or abetting, would also fall
within the sanctions provided by the statute. Therefore, the
government's desired effect can be reached by enforcement
of existing provisions against the responsible parties rather
than by imposing damages on these defendants.
We are also concerned that the provisions will deter
significantly more speech than is necessary to serve the
government's asserted interest. It is likely that in many
instances these provisions will deter the media from
publishing even material that may lawfully be disclosed
under the Wiretapping Acts.
Reporters often will not know the precise origins of
information they receive from witnesses and other sources,
nor whether the information stems from a lawful source.
Moreover, defendants argue that they cannot be held liable
for use and publication of information that had previously
been disclosed. Assuming this is so, reporters may have
difficulty discerning whether material they are considering
publishing has previously been disclosed to the public.
Such uncertainty could lead a cautious reporter not to
disclose information of public concern for fear of violating
the Wiretapping Acts.
Bartnicki and Kane recognize that the Supreme Court
has frequently expressed concern about the "timidity and
self-censorship" that may result from permitting the media
to be punished for publishing certain truthful information.
See, e.g., Florida Star, 491 U.S. at 535; Cox Broadcasting,
420 U.S. at 496. The public interest and newsworthiness of
the conversation broadcast and disclosed by the defendants
are patent. In the conversation, the president of a union
engaged in spirited negotiations with the School Board
suggested "blow[ing] off [the] front porches" of the School
28
Board members. Nothing in the context suggests that this
was said in anything other than a serious vein. Certainly,
even if no later acts were taken to follow through on the
statement, and hence no crime committed, the fact that the
president of the school teachers' union would countenance
the suggestion is highly newsworthy and of public
significance. Our concerns are only heightened by the
Supreme Court's admonition in Smith that"state action to
punish the publication of truthful information seldom can
satisfy constitutional standards." 443 U.S. at 102.
Our dissenting colleague does not disagree with any of
the applicable legal principles. He candidly states that the
difference between us is one of "ultimate application of [the
agreed upon] analysis to the case at bar." Dissenting Op. at
36. Therefore, we add only a few brief comments pertaining
to that application.
Evidently, one of the principal differences between our
respective applications lies in the weight we give the factors
to be balanced. The dissent suggests the Supreme Court's
decisions in Schneider, Struthers, and Schaumburg are not
pertinent to this case because the state interests in those
cases (littered streets, annoying door-to-door proselytizers,6
and fraudulent charitable solicitors, respectively) were "not
very important." The dissent contrasts those interests with
the significant governmental interest at issue here -- that
of maintaining the confidentiality of wire, electronic, and
oral communications.
Presumably, the dissent's point is that we must weigh
more heavily the privacy interests furthered by the
Wiretapping Acts than the Court weighed the state interests
in the three cited cases. Given the conceded importance of
privacy and confidentiality at issue here, we nonetheless
find it difficult to accord it more weight than the interests
in preventing disclosure of the name of a rape victim, the
identity of a judge in a putative disciplinary proceeding, or
the identity of a youth charged as a juvenile offender at
issue in Cox Broadcasting, Landmark Communications and
_________________________________________________________________
6. The dissent fails to mention that one of the purposes for the ordinance
referred to by the Court in Struthers was crime prevention. See 319 U.S.
at 144-45.
29
Smith, respectively. Yet when faced with each of those
circumstances, the Supreme Court determined that despite
the strong privacy interest underlying the statutory and
state constitutional provisions punishing disclosure of such
information, the interests served by the First Amendment
must take precedence.7 It would be difficult to hold that
privacy of telephone conversations are more "important"
than the privacy interests the states unsuccessfully
championed in those cases.
In addition, we do not share the dissent's confidence that
imposition of civil liability on those who neither participated
in nor encouraged the interception is an effective deterrent
to such interception. The dissent finds such a nexus in the
legislative landscape, where half of the states that prohibit
wiretapping also authorize civil damage actions. With due
respect, we find this a slim reed, not only because it
appears from the dissent's statistics that the other half of
the states with wiretapping statutes have not included a
damage provision but because the incidence of state
statutes, and hence "widespread legislative consensus,"
does not prove the deterrent effect of the prohibition.
Indeed, there is not even general agreement as to the
deterrent effect of a criminal statute on the perpetrator,8
much less on those who were not in league with the
perpetrator. In determining whether a regulation that
restricts First Amendment rights "substantially serves [its
asserted] purposes," see Grace, 461 U.S. at 182, the Court
has never found that question satisfied by sheer numbers
of state statutes.
_________________________________________________________________
7. Although we acknowledge that those decisions arose from a stricter
level of scrutiny than we employ here and somewhat different
circumstances, the fact remains that the Court has generally tilted for
the First Amendment in the tension between press freedom and privacy
rights. This is bemoaned by the dissenting Justices in The Florida Star,
who state candidly they "would strike the balance rather differently." 491
U.S. at 552 (White, J., dissenting). So, apparently, would the dissent in
this case.
8. The opposing views of deterrence were noted in connection with
capital punishment in Chief Justice Burger's dissenting opinion in
Furman v. Georgia, 408 U.S. 238, 395-96 (1972).
30
The dissent engages in hyperbole when it suggests that
our decision "invalidates a portion of the federal statute"
and "by necessary implication spells the demise of a portion
of more than twenty other state statutes." Dissenting Op. at
42. The statutes, which are designed to prohibit and
punish wiretapping, remain unimpaired. All that is at issue
is the application of those statutes to punish members of
the media who neither encouraged nor participated directly
or indirectly in the interception, an application rarely
attempted.
Moreover, we do not agree that the recent decision in
Boehner v. McDermott, 191 F.3d 463 (D.C. Cir. 1999),
presented that court with the same issue presented here.
Most particularly, in Boehner, where a divided court upheld
the constitutionality of S 2511(1)(c), all three judges
emphasized in their separate opinions that there was no
effort to impose civil damages on the newspapers (The New
York Times, et al.) which had printed the details of a
conversation that been illegally intercepted. Thus, for
example, in the lead opinion the court stated at the outset,
"[n]or should we be concerned with whetherS 2511(1)(c)
would be constitutional as applied to the newspapers who
published the initial stories about the illegally-intercepted
conference call." Id. at 467. Liability in that case was
sought to be imposed on James McDermott, a congressman
who caused a copy of the tape to be given to the
newspapers. Although technically, defendant Yocum in our
case stands in the same position as McDermott, i.e. as the
source but not the interceptor, there is an indication in
Boehner that McDermott was more than merely an innocent
conduit. Indeed, McDermott, unlike Yocum, knew who
intercepted the conversation because he "accepted" the tape
from the interceptors and, the opinion suggests, not only
sought to embarrass his political opponents with the tape
but also promised the interceptors immunity for their illegal
conduct. Id. at 475-76. In fact, the second judge, who
concurred in the judgment and in only a portion of the
opinion for the court, specifically limited his concurrence to
the decision that S 2511(1)(c) "is not unconstitutional as
applied in this case," id. at 478 (emphasis added), and
pointed out that "McDermott knew the transaction was
illegal at the time he entered into it," id. at 479. In contrast,
31
Yocum has not been shown to have "entered into" any
transaction with the interceptors. In the posture of this
case, all parties accept his allegation that the tape was left
in his mailbox.
The Boehner court was acutely aware that no court has
yet held that the government may punish the press through
imposition of damages merely for publishing information of
public significance because its original source acquired that
information in violation of a federal or state statute. Cf.
Landmark, 435 U.S. at 837 (finding it unnecessary to adopt
categorical approach). As noted earlier in this opinion, the
Supreme Court has been asked to permit a state to penalize
the publication of truthful information in at least four
instances. In three of the four cases, the statutes at issue
protected the privacy interests of such vulnerable
individuals as juveniles and the victims of sexual assault.
See Florida Star, 491 U.S. at 526; Smith, 443 U.S. at 98;
Cox Broadcasting, 420 U.S. at 472. In the remaining case,
the statute at issue was meant to protect the state's
interest in an independent and ethical judiciary. See
Landmark, 435 U.S. at 830. Despite the strength of the
state interests asserted, the Supreme Court in each case
concluded that those interests were insufficient to justify
the burdens imposed on First Amendment freedoms.
We likewise conclude that the government's significant
interest in protecting privacy is not sufficient to justify the
serious burdens the damages provisions of the Wiretapping
Acts place on free speech. We are skeptical that the burden
these provisions place on speech will serve to advance the
government's goals. Even assuming the provisions might
advance these interests, the practical impact on speech is
likely to be "substantially broader than necessary." Ward v.
Rock Against Racism, 491 U.S. 781, 800 (1989).
We therefore hold that the Wiretapping Acts fail the test
of intermediate scrutiny and may not constitutionally be
applied to penalize the use or disclosure of illegally
intercepted information where there is no allegation that
the defendants participated in or encouraged that
interception. It follows that we need not decide whether
these provisions leave open ample alternative channels for
communication of information.
32
III.
CONCLUSION
For the reasons set forth, we will reverse the order of the
District Court denying summary judgment to the
defendants, and will remand with directions to grant that
motion.
33
POLLAK, District Judge, dissenting.
The Court of Appeals for the District of Columbia Circuit
has recently determined, in Boehner v. McDermott, 191 F.3d
463 (D.C. Cir. 1999), that the First Amendment does not
bar a civil damage action brought, pursuant to 18 U.S.C.
S 2511(1)(c) and 18 U.S.C. S 2520(a), and pursuant to the
Florida statutory provisions that are counterparts of the
federal statute, against one who, so the plaintiff alleged,
gave to the New York Times and other newspapers copies of
a tape recording of a telephone conversation which the
defendant had "knowledge and reason to know" had been
unlawfully intercepted.1 Today this court holds that the
_________________________________________________________________
1. In Boehner v. McDermott, the plaintiff, John Boehner, is a Republican
Representative who, together with other members of the Republican
leadership of the House of Representatives (including then Speaker
Gingrich), was in 1996 party to a conference telephone call that was
unlawfully intercepted by persons equipped with a radio scanner.
According to Representative Boehner's complaint, the interceptors turned
over the tape to James A. McDermott, a Democratic Representative who
was at the time the ranking minority member of the House Ethics
Committee; Representative McDermott in turn gave copies of the tape to
the New York Times and other newspapers; and the New York Times
promptly published part of the taped conversation. Representative
Boehner sued Representative McDermott, but did not sue the New York
Times or any other newspaper. The district court dismissed
Representative Boehner's complaint on First Amendment grounds. The
circuit court reversed.
The circuit court perceived a potentially important distinction between
Representative McDermott's First Amendment claim and the First
Amendment claim that might have been made by the New York Times or
another newspaper, if a newspaper had been named as a defendant.
Identifying that potential distinction, the court was at pains to confine
its analysis to Representative McDermott's claim:
McDermott's liability under S 2511(1)(c) rests on the truth of two
allegations: that he "caused a copy of the tape" to be given to the
newspapers; and that he "did so intentionally and with knowledge
and reason to know that the recorded phone conversation had been
illegally intercepted (as the cover letter on its face disclosed)."
Complaint P 20. Although the circumstances of McDermott's
transactions with the newspapers, including who said what to
whom, may become evidence at trial, it is his conduct in delivering
34
First Amendment does bar a civil damage action brought,
pursuant to the Federal statute and its Pennsylvania
counterpart, against (1) one who handed over a copy of a
taped telephone conversation to a radio reporter, and (2)
the radio reporter and the two radio stations that
subsequently broadcast the tape, plaintiffs having alleged
that both the person who handed over the tape and the
radio reporter had, in the statutory language, "reason to
know" that the taped conversation had been intercepted in
contravention of the federal and Pennsylvania statutes. In
the case decided today the court addresses a broader range
of issues then those presented in Boehner v. McDermott: in
Boehner v. McDermott the only defendant was the person
who allegedly delivered to the media a copy of a tape of an
allegedly wrongfully intercepted telephone conversation; in
_________________________________________________________________
the tape that gives rise to his potential liability under S
2511(1)(c).
McDermott's behavior in turning over the tapes doubtless conveyed
a message, expressing something about him. All behavior does. But
not all behavior comes within the First Amendment.
"[E]ven on the assumption that there was[some] communicative
element in" McDermott's conduct, the Supreme Court has held that
"when ``speech' and ``nonspeech' elements are combined in the same
course of conduct, a sufficiently important governmental interest
in
regulating the nonspeech element can justify incidental limitations
on First Amendment freedoms." United States v. O'Brien, 391 U.S.
367, 376, 88 S. Ct. 1673, 20 L. Ed. 2d 672 (1968). The O'Brien
framework is the proper mode of First Amendment analysis in this
case. McDermott's challenge is only to the statute as it applies to
his
delivery of the tape to newspapers. Whether a different analysis
would govern if, for instance, McDermott violatedS 2511(1)(c) by
reading a transcript of the tape in a news conference, is therefore
a
question not presented here. Nor should we be concerned with
whether S 2511(1)(c) would be constitutional as applied to the
newspapers who published the initial stories about the illegally-
intercepted conference call. The focus must be on McDermott's
activity and on his activity alone.
191 F.3d at 467.
The author of the court's opinion was Judge Randolph. Judge
Ginsburg filed a concurring opinion, joining part (including the
paragraphs just quoted) of Judge Randolph's opinion. Judge Santelle
filed a dissenting opinion.
35
today's case there are three "media defendants" in addition
to the defendant who allegedly delivered to the media a
copy of a tape of an allegedly wrongfully intercepted
telephone conversation.2
I am in general agreement with the careful analytic path
traced by the court through the minefield of First
Amendment precedents. However, I find myself in
disagreement with the court's ultimate application of its
analysis to the case at bar.
Accordingly, I respectfully dissent.3
_________________________________________________________________
2. The Boehner v. McDermott court was at pains to point out the limited
scope of its ruling. See note 1, supra . See also note 3, infra.
3. Although I have expressed general agreement with the court's analytic
approach. I should note one aspect of the analysis on which I differ with
the court. That aspect is cogently illustrated by the distinction the
Boehner v. McDermott court drew between the First Amendment posture
of Representative McDermott and the potential First Amendment posture
of a newspaper that published (as the New York Times in fact did) a
portion of the intercepted telephone conference call, had such a
newspaper been sued. As the Boehner v. McDermott excerpt quoted in
footnote 1, supra, makes clear, the court was doubtful that
Representative McDermott's action in giving copies of the tape to
newspapers was itself "speech" in the full First Amendment sense. Judge
Randolph, speaking for the court, saw Representative McDermott's First
Amendment claim as cabined by the Supreme Court's holding in United
States v. O'Brien, 391 U.S. 367, 376 (1968), that "when ``speech' and
``nonspeech' elements are combined in the same course of conduct, a
sufficiently important governmental interest in regulating the nonspeech
element can justify incidental limitations on First Amendment freedoms."
In the case at bar, in which the plaintiffs have sued both Yocum and
media defendants, the United States argues that the approach reflected
in O'Brien and cases that follow it is appropriate to the entire case. The
court rejects that view. I find the Boehner v. McDermott exposition of
Representative McDermott's limited First Amendment posture
persuasive, and thus in the case at bar I would apply the O'Brien
approach to defendant Yocum -- whose role, from a First Amendment
perspective, seems analogous to that of Representative McDermott --
while rejecting O'Brien as the proper approach to the First Amendment
claims of the media defendants. However, the distinction is not one that
I need pursue, because, accepting for the purposes of the case at bar the
court's comprehensive rejection of O'Brien, I nonetheless wind up
36
I.
I agree with the court's statement of the case. And I agree
with the court's determination that the challenged federal
and Pennsylvania wiretapping statutes -- here invoked by
plaintiffs seeking damages for defendants' alleged
disclosure and use of a taped telephone conversation of
plaintiffs that defendants allegedly had "reason to know"
was the product of a prohibited "interception of a wire . . .
communication," 18 U.S.C. S 2511(c); 18 Pa. Cons. Stat.
S 5703(2) -- are "content neutral." I further agree with the
court that the proper standard to be applied in testing the
constitutionality of the federal and Pennsylvania statutes as
here applied is "intermediate scrutiny." Finally, I agree with
the court that intermediate scrutiny "always encompasses
some balancing of the state interest and the means used to
effectuate that interest." Slip Op., p. 23. Concretely, such
scrutiny calls for judicial assessment of whether the
challenged regulation is "narrowly tailored to serve a
significant governmental interest." Clark v. Community for
Creative Non-Violence, 468 U.S. 288, 293 (1984). 4
Where I part company with the court is in its application
of intermediate scrutiny in this case.
A.
The court begins by acknowledging what I take to be
beyond dispute: namely, that the professed governmental
_________________________________________________________________
disagreeing with the court on how the court's analytic approach plays
out as applied, with the result that I conclude that liability in damages
could constitutionally have been imposed both on Yocum and on the
media defendants if the plaintiffs had been permitted to take their case
to trial and had proved their allegations to the satisfaction of the fact-
finder.
4. The other criterion identified in Clark v. Community for Creative Non-
Violence -- namely, whether the challenged regulation "leave[s] open
ample alternative channels for communication of the information" 468
U.S. at 293 -- is not pertinent to the case at bar because the challenged
statutes are not, as the challenged regulations in Clark v. Community for
Creative Non-Violence were deemed to be, "time, place or manner
restrictions." Ibid. And see id. at 295.
37
interest -- the interest of the United States (which is
presumably also Pennsylvania's interest) in "maintain[ing]
the confidentiality of wire, electronic, and oral
communications," Brief for the United States, p. 33 -- is "a
significant state interest." Slip Op., supra, p. 26. Then --
evidently with a view to exploring whether the challenged
prohibition on disclosure or use of a conversation by one
who had "reason to know" that the conversation was
intercepted unlawfully is "narrowly tailored to serve [that]
significant governmental interest" -- the court undertakes
to "focus on the United States' . . . contention . . . that the
provisions promote privacy by eliminating the demand for
intercepted materials on the part of third parties." Slip Op.,
p. 26. The court then proceeds as follows:
The connection between prohibiting third parties from
using or disclosing intercepted material and preventing
the initial interception is indirect at best. The United
States has offered nothing other than its ipse dixit in
support of its suggestion that imposing the substantial
statutory damages provided by the Acts on Yocum or
the media defendants will have any effect on the
unknown party who intercepted the Bartnicki-Kane
conversation. Nor has the United States offered any
basis for us to conclude that these provisions have
deterred any other would-be interceptors. Given the
indirectness of the manner in which the United States
claims the provisions serve its interest, we are not
prepared to accept the United States' unsupported
allegation that the statute actually produces the
hypothesized effect. See Landmark Communications,
Inc. v. Virginia, 435 U.S. 829, 841 (1978) ("The
Commonwealth has offered little more than assertion
and conjecture to support its claim that without
criminal sanctions the objectives of the statutory
scheme would be seriously undermined."). Faced with
nothing "more than assertion and conjecture," it would
be a long stretch indeed to conclude that the
imposition of damages on defendants who were
unconnected with the interception even "peripherally
promoted" the effort to deter interception. See Village of
Schaumburg, 444 U.S. at 636.
38
When the state seeks to effectuate legitimate state
interests,
it must do so by narrowly drawn regulations
designed to serve those interests without
unnecessarily interfering with First Amendment
freedoms. Hynes v. Mayor of Oradell, 425 U.S. at
620; First National Bank of Boston v. Bellotti , 435
U.S. 765, 786 (1978). "Broad prophylactic rules in
the area of free expression are suspect. Precision of
regulation must be the touchstone. . . ." NAACP v.
Button, 371 U.S. 415, 438 (1963) (citations omitted).
Village of Schaumburg, 444 U.S. at 637.
In Village of Schaumburg, the Court stated that the
Village's legitimate interest in preventing fraud could
be better served by requiring solicitors to inform the
public of the uses made of their contributions, than by
prohibiting solicitation. Id. Similarly, in Martin v.
Struthers, 319 U.S. 141, 147-48 (1943), the Court held
that in lieu of a complete prohibition of door-to-door
solicitation, with its draconian impact on First
Amendment values, the City could have used the less
restrictive means of punishing those who trespass"in
defiance of the previously expressed will of the
occupant." Indeed, the Wiretapping Acts already
provide for punishment of the offender, i.e., the
individual who intercepted the wire communication
and who used or disclosed it. See Schneider, 308 U.S.
at 162 (city should prevent littering by punishing
litterers, not by prohibiting leafleting). Those who
indirectly participated in the interception, either by
aiding or abetting, would also fall within the sanctions
provided by the statute. Therefore, the government's
desired effect can be reached by enforcement of
existing provisions against the responsible parties
rather than by imposing damages on these defendants.
Slip Op. p. 26-28.
With all respect, I find this portion of the court's opinion
unpersuasive:
First: I take issue with the proposition that "[t]he
connection between prohibiting third parties from using or
39
disclosing intercepted material and preventing the initial
interception is indirect at best." "[P]reventing the initial
interception" is only part of the statutory scheme. The
statutory purposes, as the court has noted, are"(1)
protecting the privacy of wire and oral communications,
and (2) delineating on a uniform basis the circumstances
and conditions under which the interception of wire and
oral communications may be authorized." S. Rep. No. 90-
1079 (1968), reprinted in 1968 U.S.C.C.A.N. 2112, 2153.
Unauthorized interception of a communication is prohibited
-- and made both a criminal offense and an event giving
rise to civil liability -- both to protect parties to a
communication from an initial trespass on their privacy
and to protect them from subsequent disclosure (and/or
other detrimental use). "Unless disclosure is prohibited,
there will be an incentive for illegal interceptions; and
unless disclosure is prohibited, the damage caused by an
illegal interception will be compounded. It is not enough to
prohibit disclosure only by those who conduct the unlawful
eavesdropping. One would not expect them to reveal
publicly the contents of the communication; if they did so
they would risk incriminating themselves. It was therefore
``essential' for Congress to impose upon third parties, that
is, upon those not responsible for the interception, a duty
of non-disclosure." Boehner v. McDermott, 191 F.3d at 470.
Second: Given the close nexus between the legislative
prohibition on unauthorized interception and the legislative
imposition upon "third parties, that is, upon those not
responsible for the interception, [of] a duty of non-
disclosure," I am puzzled by the court's view that the
argument presented by the United States in support of the
statutory regime of civil liability lacks persuasiveness
because it is not supported by a demonstration that
"imposing the substantial statutory damages provided by
the Acts on Yocum or the media defendants will have any
effect on the unknown party who intercepted the Bartnicki-
Kane conversation," or "that these [statutory] provisions
have deterred any other would-be interceptors." Nor do I
think the court's view is buttressed by the court's
invocation of Landmark Communication, Inc. v. Virginia, 435
U.S. 829 (1978). It is true that in Landmark, in which the
Supreme Court struck down, as applied to a newspaper, a
40
statute making it a misdemeanor to "divulge information"
about confidential proceedings conducted by Virginia's
Judicial Inquiry and Review Commission, the Court
observed that "[t]he Commonwealth has offered little more
than assertion and conjecture to support its claim that
without criminal sanctions the objectives of the statutory
scheme [which contemplated a process of confidential
inquiry into alleged judicial misconduct] would be seriously
undermined." But the special -- and limited-- pertinence
of the Court's observation becomes clear when it is read in
context. The full paragraph follows:
It can be assumed for purposes of decision that
confidentiality of Commission proceedings serves
legitimate state interests. The question, however, is
whether these interests are sufficient to justify the
encroachment on First Amendment guarantees which
the imposition of criminal sanctions entails with
respect to nonparticipants such as Landmark. The
Commonwealth has offered little more than assertion
and conjecture to support its claim that without
criminal sanctions the objectives of the statutory
scheme would be seriously undermined. While not
dispositive, we note that more than 40 States having
similar commissions have not found it necessary to
enforce confidentiality by use of criminal sanctions
against nonparticipants.
435 U.S. at 841. In striking contrast is the legislative
landscape that forms the setting of the case at bar.
Complementing the federal statute are more than forty
state wiretapping statutes. Of these state statutes,
approximately half have provisions which, like the federal
statute, (1) prohibit disclosure or use of an intercepted
conversation by one who knows or has "reason to know"
that the interception was unlawful, and (2) authorize civil
damage actions against one who discloses or uses such
unlawful interception. As this case illustrates, Pennsylvania
is one of those states. So are Delaware and New Jersey --
Pennsylvania's Third Circuit siblings. See 11 Del. Code
Ann., S 1336 (1996); N.J. Stat. Ann. #8E8E # 2A-156 A-3, 2A-156-
A24 (West 1985 & Supp. 1999). Listed in footnote 5 are the
other state statutes that closely parallel the provisions of
41
the federal and Pennsylvania legislation challenged by
defendants in the case at bar.5
In short, there appears to be a widespread legislative
consensus that the imposition of civil liability on persons
engaged in conduct of the kind attributed to these
defendants is an important ingredient of a regime designed
to protect the privacy of private conversations. Moreover,
the decision announced today not only invalidates a portion
of the federal statute and the counterpart portion of the
Pennsylvania statute, it by necessary implication spells the
demise of a portion of more than twenty other state
statutes (and also of a statute of the District of Columbia);
in the two centuries of American constitutional law I cannot
recall any prior decision, whether of a federal court or of a
state court, which, in the exercise of the awesome power of
judicial review, has cut so wide a swath.
Third: What has been said points up the non-pertinence
to the case at bar of Schneider v. State, 308 U.S. 147(1939), Martin v. Struthers, 319 U.S. 141 (1943), and Village
of Schaumburg v. Citizens for a Better Environment, 444
U.S. 620 (1980), cases cited by the court as illustrative of
the proposition that regulations designed to promote
significant governmental interests should not sweep so
broadly as to impose unnecessary constraints on First
Amendment rights of free expression and communication.
The constitutional shortcomings in Schneider (combating
the littering of streets by curbing leafleting), Struthers
(banning door-to-door distribution of circulars, including
religious literature, in order to protect homeowners from
_________________________________________________________________
5. Fla. Stat. Ann. SS 934.03, 812.15; Haw. Rev. Stat. SS 803-42(a)(3),
803-48; Idaho Code SS 18-6702, 18-6709; 720 Ill. Comp. Stat. Ann.
5/14-2, 5/14-6; Iowa Code SS 808B.2(1)(c), 808B.8; La. Rev. Stat. Ann.
SS 15:1303A(3), 15:1312; Md. Code Ann. S 10-402(a)(2), 10-410; Mich.
Comp. Laws Ann. SS 750.539e, 750.539h; Minn. Stat. Ann.
SS 626A.02(c), 626A.13; Neb. Rev. Stat. SS 86-702, 86-702.02; N.H. Rev.
Stat. Ann. SS 570-A:2, 570-A:11; N.C. Gen. Stat. SS 15A-287, 15A-296;
Ohio Rev. Code Ann. SS 2933.52, 2933.65; Tenn. Code Ann. SS 39-13-
601, 39-13-603; Utah Code Ann. SS 77-23a-4, 77-23a-11; Va. Code Ann.
SS 19.2-62, 19.2-69; W. Va. Code SS 62-1D-3, 62-1D-12; Wis. Stat.
S 968.31; Wyo. Stat. Ann. SS 7-3-602, 7-3-609; See also D.C. Code Ann.
SS 23-542, 23-554.
42
annoyance), and Village of Schaumburg (combating allegedly
fraudulent charitable solicitation by banning all solicitation
by groups not disbursing 75% of receipts) involved
situations in which small towns imposed on traditional
First Amendment activities pervasive constraints sought to
be justified as ways of dealing with distinct (and not very
important) problems that could have been more effectively
addressed by governmental action directed at the actual
problems - e.g., prosecuting litterers (Schneider);
prosecuting as trespassers solicitors who do not depart
when requested by homeowners to do so (Struthers );
requiring organizations soliciting contributions to disclose
how receipts are used (Village of Schaumburg). In the case
at bar, unauthorized disclosure (or other use) of private
conversations is a central aspect of the very evil the
challenged statutory provisions are designed to combat.
B.
The court also notes that "[r]eporters often will not know
the precise origins of information they receive from
witnesses and other sources, nor whether the information
stems from a lawful source," or, indeed, "whether material
they are considering publishing has previously been
disclosed to the public." Slip Op., p. 28, As a result, the
court opines, "[i]t is likely that in many instances these
[challenged statutory] provisions will deter the media from
publishing even material that may lawfully be disclosed
under the Wiretapping Acts." Ibid.
I think the court overstates the potential problems of the
media. One would suppose that a responsible journalist --
whether press or broadcast -- would be unlikely to propose
publication of a transcript of an apparently newsworthy
conversation without some effort to insure that the
conversation in fact took place and to authenticate the
identities of the parties to the conversation. As part of such
an inquiry, the question whether the parties to the
conversation had authorized its recording and release, or
whether others had lawfully intercepted the conversation,
would seem naturally to arise. Moreover, current technology
would make it relatively easy to determine whether the
43
conversation had been the subject of a prior press or
broadcast report.6
In my judgment, a more substantial First Amendment
difficulty is posed by the fact that the person or entity
charged with knowing or having "reason to know" that a
published conversation was unlawfully intercepted is called
on to contest before a judicial fact-finder (whether jury or
judge) a plaintiff 's allegation of knowledge or"reason to
know." But the difficulties attendant on fact-finder
oversight of journalistic practice (or, indeed, of public
disclosure by non-journalists) can, I believe, be met by
adoption of the procedural proposals advanced in the brief
for the United States:
In criminal prosecutions under Title III, scienter must
be proved beyond a reasonable doubt. In civil cases
scienter ordinarily would be subject to a conventional
preponderance-of-the-evidence standard. When a claim
is brought for disclosure of information about matters
of public significance by persons who were not involved
in the illegal interception, however, a preponderance-
of-the-evidence standard may operate to deter the
publication of information that was not the product of
illegal surveillance. To avoid that result, it might prove
appropriate for district courts to impose a higher
standard of proof of scienter in such cases, such as
_________________________________________________________________
6. On occasion, inquiry of the kind suggested might indeed take a few
days. But news reporting -- especially with respect to events (such as a
conversation) that are concluded, rather than still evolving -- need not
be an instant process. In the case at bar, it appears that defendant
Vopper did not broadcast the conversation until some months after
defendant Yocum gave him a copy of the tape. Deposition of Frederick W.
Vopper, App. 60a-61a. On the other hand, the New York Times
published a portion of the intercepted conversation that gave rise to
Boehner v. McDermott the day after it received the tape. The New York
Times story also reported that the tape had been"made . . . available to
the New York Times" by "a Democratic Congressman hostile to Mr.
Gingrich who insisted that he not be identified further" and who told the
Times that the tape had been given to him [on January 8, 1997] by a
couple who said the tape "had been recorded [on December 21, 1996] off
a radio scanner, suggesting that one participant was using a cellular
telephone." N.Y. Times, January 10, 1997, p.1, col.3.
44
proof by "clear and convincing" evidence, and for
appellate courts to conduct independent review of the
findings of the trier of fact. Cf. Gertz v. Robert Welch,
Inc., 418 U.S. 323, 342 (1974) (requiring clear and
convincing evidence of "actual malice" in defamation
cases); Bose Corp. v. Consumers Union of United States,
Inc., 466 U.S. 485, 498-511 (1984) (de novo appellate
review of findings regarding actual malice). See
generally Waters v. Churchill, 511 U.S. 661, 669-71
(1994) (plurality opinion) (discussing circumstances in
which First Amendment requires modifications of
burdens of proof and other procedural rules).
Brief for the United States, pp. 40-41 n. 8.7
II.
As the court's opinion makes plain, the First Amendment
values of free speech and press are among the values most
cherished in the American social order. Maintenance of
these values (and the other values of the Bill of Rights)
against overreaching by the legislature or the executive is
among the judiciary's major and most demanding
responsibilities. In the case at bar, however, the First
Amendment values on which defendants take their stand
are countered by privacy values sought to be advanced by
Congress and the Pennsylvania General Assembly that are
of comparable - indeed kindred - dimension. Three decades
ago the late Chief Judge Fuld of the New York Court of
Appeals put the matter well in Estate of Hemingway v.
Random House, 23 N.Y.2d 341, 348, 244 N.E.2d 250, 255
(1968) (in words that the Supreme Court has quoted with
_________________________________________________________________
7. The court's decision has the anomalous consequence of cloaking
Yocum, who is not a "media defendant", with the First Amendment
protections the court deems appropriate for radio reporter Vopper and
the two radio stations. I have undertaken to explain in footnote 3, supra,
that in my judgment Yocum has a far more tenuous First Amendment
claim (if any) than the media defendants. I do not think that, merely by
virtue of the fortuity that the plaintiffs have elected to sue Yocum and
the media defendants (which the plaintiff in Boehner v. McDermott did
not do), Yocum becomes a third-party beneficiary of whatever First
Amendment protections may accrue to the media defendants.
45
approval, Harper & Row Publishers v. National Enterprises,
471 U.S. 539, 560 (1985)):
The essential thrust of the First Amendment is to
prohibit improper restraints on the voluntary public
expression of ideas; it shields the man who wants to
speak or publish when others wish him to be quiet.
There is necessarily, and within suitably defined areas,
a concomitant freedom not to speak publicly, one
which serves the same ultimate end as freedom of
speech in its affirmative aspect.
A True Copy:
Teste:
Clerk of the United States Court of Appeals
for the Third Circuit
46