Bartnicki v. Vopper

Brief Fact Summary.

During fiery collective-bargaining negotiations, two members of a teachers’ union called to discuss the status of the negotiations, referencing the possible need to “do work” on the school board members at their homes. Reporter Vopper received from the head of a local taxpayers’ organization that opposed the union’s demands a tape of the conversation between the two union members that had been intercepted by an unknown person. Vopper broadcasted the conversation on the radio, causing another radio station to follow suit and local newspapers to publish its contents.

Synopsis of Rule of Law.

A publisher of information who has obtained information lawfully from a source who obtained the information unlawfully may not be punished under the First Amendment unless the privacy concern for the individuals outweighs the interest in publishing matters of public concern.

Facts.

A teachers union and the school board engaged in fiery collective-bargaining negotiations over almost two years. Two members of the union called to discuss the status of the negotiations, including the need for a dramatic response (possibly going to the homes of board members to “do some work”). The parties eventually accepted a non-binding arbitration proposal that was generally favorable to the teachers.

Reporter Vopper received from the head of a local taxpayers’ organization that opposed the union’s demands a tape of the conversation between the two union members that had been intercepted by an unknown person. Vopper broadcasted the conversation on the radio, causing another radio station to follow suit and local newspapers to publish its contents.

Bartnicki and Kane, the two union members involved, sued Vopper for repeatedly publishing their conversation, alleging that Vopper knew or had reason to know that the tape was recorded unlawfully. Bartnicki and Kane sought actual damages, statutory damages, punitive damages, and attorneys’ fees and costs.

Issue.

Where the punished publisher of information has obtained the information in question in a manner lawful in itself but from a source who has obtained it unlawfully, may the government punish the ensuing publication of that information based on the defect in a chain?

Held.

Affirmed.

No. Where the punished publisher of information has obtained the information in question in a manner lawful in itself but from a source who has obtained it unlawfully, the government may not punish the ensuing publication of that information based on the defect in a chain.

Dissent.

Justice Rehnquist

Today’s decision places a chilling effect on millions of Americans who rely on technology to communicate every day. Transmitting intercepted communications from an eavesdropper to a third party is illegal. When the third party knowingly discloses that communication, there is a separate illegal act.

Under the “dry up the market” theory, it is possible to deter an illegal act that is difficult to police by preventing the wrongdoer from enjoying the fruits of the crime. This is a time-tested theory that works. The same logic applies here and demonstrates that incidental restrictions on the First Amendment are outweighed by the interest to protect the privacy of individual communications. Without such a holding, unlawful eavesdroppers who want to disclose illegally obtained conversations could just anonymously launder the interception through a third party to avoid detection.

Concurrence.

Justice Breyer

Vopper acted lawfully up until the actual broadcasting of the tape, and the information involved a matter of public concern, namely a threat of potential physical harm to others. This holding does not, however, imply significantly broader constitutional protections for the press.

Justice Breyer would evaluate the statutes by balancing their speech restricting and enhancing consequences. Using that test, the Pennsylvania statute enhances private speech but also restrict public speech directly, deliberately, and out of necessity. However, the statute does not reasonably reconcile competing constitutional objectives and instead disproportionately interfere with media freedom. Bartnicki and Kane were limited public figures because they voluntarily engaged in a public controversy, so they subjected themselves to somewhat greater scrutiny than an individual engaged in purely private affairs.

In sum, the Court is not creating a new public interest exception to state privacy regulations, but rather is ruling on a very fact-specific and unusual circumstance.

Discussion.

Assuming that the interception was intentional and that Vopper had reason to know the tape was unlawful, the question becomes whether the controlling statute violates the First Amendment. For Vopper, the Court assumed that he played no part in the interception, obtained the tape himself lawfully, and that the tape was a matter of public concern.

A regulation that distinguishes speech by the ideas or views expressed is content-based. A regulation is content-neutral if it is justified without reference to the content of the regulated speech. Here, the Pennsylvania statute was content-neutral in that its purpose to protect the privacy of wire, electronic, and oral communications from being illegally intercepted without distinction to the content of the speech itself. However, the portion of the regulation that prohibited disclosure constituted a regulation of pure speech because disclosure and publication constitute speech and not conduct.

In New York Times Co. v. U.S., the Court upheld the right of the press to publish information of great public concern obtained from documents stolen by a third party. But that case did not address the question of whether a media defendant may be punished for publishing information that it lawfully acquired from a source who originally unlawfully acquired that information.

It would be quite remarkable to hold that speech obtained lawfully may be suppressed to deter conduct by a non-law-abiding third party. There is no empirical evidence to suggest that a prohibition against disclosure would reduce the total number of illegal interceptions. Here, this is an exceptional case where an anonymous scammer has risked criminal liability without any expectation of financial reward, perhaps in pure spite toward the teachers’ union. There is no basis to burden Vopper from deterring the unidentified scammer from continuing to intercept conversations illegally.

There is a valid interest to prohibit disclosures of private conversations by persons who lawfully obtained access to a tape of an illegally intercepted message, even if that prohibition does not play a significant role in preventing such interceptions from occurring in the first place. Here, however, such interest is outweighed by the interest in publishing matters of public concern, given that the negotiations between the teachers’ union and school board were unquestionably a matter of public concern.