Bartnicki v. Vopper: It's a Matter of Public Concern! Exposing the Myth of Electronic Privacy and Protecting the Press.

Resumen

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I. Introduction . A. Rationale for Protecting Freedom of the Press . B. Protecting False Speech. C. Protecting Disclosure of Lawfully Acquired Truthful Information. D. The Federal Wiretapping Act: Lower Court Interpretations. III. Bartnicki v. Vopper . IV. Discussion . A. The Majority Decision. B. Justice Breyer's Concurring Opinion . C. Chief Justice Rehnquist's Dissent . V. Analysis . A. The Standard of Review: The Majority Properly Applies Strict Scrutiny. B. The Rule of Precedent: The Majority Follow Established Case Law . C. Dry-Up-The-Market Theory: Dispute Over Deference. D. Public Figures, Public Issues and Privacy Expectations. VI. Significance . A. Publication of Truthful Information. B. Public Figure Status: A Fourth Prong to the Florida Star Test. VII. Conclusion .

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Extracto

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Bartnicki v. Vopper: It's a Matter of Public Concern! Exposing the Myth of Electronic Privacy and Protecting the Press.

I. Introduction .

Big Brother may not be watching but your neighbor could be listening . . . and taping!

Cell phones and other wireless communications are an integral part of our daily lives. By its very nature, this technology enables our society to conduct business "on the go." We depend on this technology and it is all too easy to assume that our communications are private. However, given the accessibility of monitoring devices such as scanners, electronic privacy is only a myth. With monitoring devices our concept of privacy may be invaded at anytime without our knowledge.

The Federal Wiretapping Act penalizes electronic eavesdropping, specifically criminalizing the interception and subsequent disclosure of electronic communications.1 The disclosure provision of this Act was directly at issue in Bartnicki v Vopper.2 In this case, the media defendants were charged with violating the Act by disclosing the contents of an illegally intercepted cell phone conversation.3 In a 6-3 decision, the Supreme Court held that the First Amendment protects the media in publishing matters of public concern.4 Based on precedent, the majority found that where the media lawfully obtained information of public concern, electronic privacy interests of public figures must fall.5

In Part I of this case note, an overview of the justifications for protecting freedom of the press are reviewed and a discussion of relevant case law is presented. The facts of Bartnicki are discussed in Part II. The majority, concurring and dissenting decisions are discussed in Part III. In Part IV, the case analysis is presented. The significance of Bartnicki is discussed in Part V. "Congress shall make no law . . . abridging the freedom of speech, or the press."6

These words appear clear and uncomplicated, yet they have sparked intense debate in First Amendment jurisprudence. The framers of the Constitution chose these words to protect individual freedom of speech as well as the media's freedom to disseminate that speech.7 However, no freedom is absolute. Governments often act to limit speech or regulate the press in response to social and technological changes. Constitutional assessments of governmental speech/press regulations often mirror changing social perspectives.8

In this dynamic environment, First Amendment protections are challenged. There are no bright line tests to guide courts in analyzing First Amendment press issues. Although First Amendment interpretation is fact specific,9 the Court's decisions reflect value choices based on the one or more traditional goals of protecting speech and press.10

A. Rationale for Protecting Freedom of the Press .

A review of the relevant literature revealed that there are several rationales supporting the First Amendment protections of the press. The basic concept underlying each rationale is that "the government cannot be trusted with the power to effect changes in speech or press relationships."11First, it is asserted that protecting speech and press advances the "search for the truth."12 Government regulation of expression or dissemination of information is viewed as an encroachment on an individual's right to be exposed to new ideas.13 Some authors argue that "truth" may be lost in propaganda and rhetoric, while others argue that inherent to personal freedom is the right to choose what information should be valued and what information should be discarded.14

Second, speech and press protections are viewed as a means to promote individual autonomy and tolerance.15 By promoting awareness of diverse opinions, free expression encourages and fosters tolerance among citizens.16 This goal may only be achieved when individuals have unhindered access to information "to cultivate their intellect as they see fit."17

Finally, few dispute that Constitutional protections of speech and press are meant to safeguard political discourse.18 The First Amendment thus en...

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