Is Anyone Listening to Me?: Bartnicki v. Vopper

AuthorTravis Wilkinson

The author would like to thank his wife Susie for her patience, understanding, and support. Without her, none of this would have been possible. The author would also like to thank Professor Paul Baier for his guidance and encouragement in writing this article.

The intensity and complexity of life, attendant upon advancing civilization, have rendered necessary some retreat from the world, and man, under the refining influence of culture, has become more sensitive to publicity, so that solitude and privacy have become more essential to the individual; but modern enterprise and invention have, through invasions upon his privacy, subjected him to mental pain and distress, far greater than could be inflicted by mere bodily injury. 1

- Samuel Warren & Louis Brandeis

I Introduction

If Warren and Brandeis's statement was true in 1890, it is even more true today. The quantum technological leaps made in the last century have emaciated our privacy. While individual privacy interests usually have been protected by the Supreme Court and various federal and state statutes, they nonetheless remain vulnerable.

In Bartnicki v. Vopper,2 the United States Supreme Court held the First Amendment protected a rebroadcast on commercial radio of an illegally intercepted cellular phone conversation.3 The Court found the content of the conversation was a matter of public concern, and thus held the media's freedom of speech interest outweighed the speaker's privacy interest.4 Bartnicki, therefore, serves as an example of the frailty of privacy.

Our communications have a long history of protection from intrusion. We are protected by the Fourth Amendment from unreasonable searches and seizures by the government.5 This protection extends to telephone conversations6 and other forms of communication. Protection of communications also comes in the form of many federal and state statutes. In fact, the statutes declared unconstitutional in Bartnicki were implemented specifically to protect individuals' communications.7

The privacy interest in Bartnicki came head to head with another cherished American institution, freedom of the press. This interest also receives the highest form of protection from the Constitution.8In addition, the media enjoy statutory9 and jurisprudential10 authority to disseminate information. It is therefore inevitable that the privacy interests of individuals and the freedom enjoyed by the media will clash. This clash occurred in Bartnicki where the Court found the media's interest to be of greater weight and held the statutes prohibiting disclosure violated the First Amendment. The Court stated the statutes implicated the core purposes of the First Amendment because they imposed sanctions on the publication of truthful information of public concern.11

The Court's decision in Bartnicki is flawed. The decision ignores the sound judgment of Congress and forty states, including Louisiana. The Court also applied the wrong standard of judicial review. These statutes are content neutral and therefore are subject only to intermediate scrutiny. However, the Court applied strict scrutiny usually reserved for those regulations affecting content. Finally, and perhaps most importantly, the Court's decision ignores social reality. Allowing this type of disclosure will create a chilling of free speech which the First Amendment was designed to avoid.

This note details the Bartnicki decision and its ramifications on speech. Part II explains the facts and procedural history of Bartnicki. Part III is an overview of Justice Stevens's majority opinion. Part IV explores why the Court's decision is flawed. Finally, Part V focuses on implications of Bartnicki for Louisiana.

II Facts And Procedural History
A Facts

During 1992 and most of 1993, the Pennsylvania State Education Association, a union representing the teachers at Wyoming Valley West High School, engaged in collective-bargaining negotiations with the school board.12 Gloria Bartnicki was the chief negotiator for the Wyoming Valley teacher's union.13 During the negotiations, Bartnicki used the cellular phone in her car to call Anthony Kane, a teacher at Wyoming Valley and president of the teacher's union.14 In this conversation, Bartnicki and Kane discussed the status of the negotiations and the timing of a proposed strike.15 Also, some questionable negotiating strategies were mentioned which could have been misconstrued as advocating violence.16

Unknown to either Bartnicki or Kane, the conversation was intercepted and recorded on a cassette tape by an unknown person, apparently using a scanner that picked up the signal from Bartnicki's cellular phone.17 The tape was then placed in the mailbox of Jack Yocum, the president of the Wyoming Valley West Taxpayers' Association, an organization opposed to the union's bargaining proposals.18 After listening to the tape and recognizing the voices of Bartnicki and Kane, Yocum gave a copy of the tape to Frederick Vopper, the host of a talk show on a local radio station.19 Both Yocum and Vopper realized the conversation between Bartnicki and Kane involved a cellular phone, and that a scanner probably had been used to intercept the call.20

Early in the fall of 1993, the union and the school board accepted a non-binding arbitration proposal that was generally favorable to the union.21 After the agreement was reached, Vopper played the tape during his talk show. Until that broadcast, Bartnicki and Kane did not know their conversation had been intercepted and taped.22 They sued Vopper for civil damages. Bartnicki and Kane claimed the disclosure violated both Title III of the Omnibus Crime Control and Safe Street Act of 1968, as amended by the Electronic Communications Privacy Act of 198623 and the Pennsylvania Wiretapping and Electronic Surveillance Control Act.24 Both statutes prohibit the intentional interception of any wire, oral, or electronic communication.25 More importantly, the statutes also prohibit the intentional disclosure of such communications if one knows or has reason to know the information was obtained through the interception of a wire, oral or electronic communication.26 Vopper contended the statutes were not violated because he had nothing to do with the interception and the conversation may have been intercepted inadvertently.27 Moreover, Vopper argued, even if disclosure of the conversation did violate the statutes, the disclosure was protected by the First Amendment.28

B Procedural History

The District Court rejected the defendant's statutory argument because, under the plain language, an individual violates the federal act by disclosing the contents of an electronic communication when he knows or has reason to know the information was obtained by illegal means.29 On summary judgment, the District Court also concluded the text of the interception raised a genuine issue of material fact as to whether the conversation was intentionally intercepted.30 Finally, the District Court rejected defendant's First Amendment defense because the statutes were content neutral laws of general applicability that contained no indicia of prior restraint.31

On appeal, the Third Circuit reversed.32 All three members of the panel agreed the statutes were content neutral and therefore subject only to intermediate scrutiny.33 The majority nonetheless concluded the statutes failed intermediate scrutiny.34 Therefore, the court held the provisions could not be constitutionally applied to penalize the use or disclosure of illegally intercepted information where there was no allegation the defendants participated in or encouraged the interception.35

III Supreme Court Opinion

The United States Supreme Court granted certiorari36 and affirmed. In the majority decision by Justice Stevens, the Court found that the interception was intentional and therefore illegal.37 The Court also noted that the defendant had reason to know it was unlawfully obtained, thus making the disclosure illegal.38 The only issue before the Court, therefore, was whether the statutes as applied to this case violated the First Amendment.39 Specifically, did the media's interest in disclosing this conversation outweigh the privacy rights of Bartnicki and Kane? In determining this issue the Court accepted several facts as true.40 The defendants were not involved in the illegal interception of the conversation, and their access to the information on the tapes was obtained lawfully, even though the information itself was intercepted unlawfully by someone else.41More importantly, the Court noted that the subject matter of the conversation was a matter of public concern.42 The public concern, according to the Court, stemmed from the fact that the statements about the negotiations would have been newsworthy had they been made in a public arena.43 This suggests that the Court saw the conversation as one of public concern because it involved labor negotiations and not that it could be loosely interpreted as advocating violence.

The Court agreed with the Third Circuit that the statutes were content neutral.44 It recognized that the purpose of the statutes was to protect the privacy of communications, and that they focused on the source of the communication rather than its subject matter.45However, the Court also recognized prohibition of disclosures as a regulation of pure speech.46 It analogized the delivery of the taped conversations here to the delivery of a pamphlet, making it the kind of speech the First Amendment protects.47 The Court, therefore, contradicts itself by saying the statutes are both content neutral and regulations of pure...

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