Bartnicki v. Vopper: the First Amendment Versus Privacy and the Ghost of Louis Brandeis - Kelly O. Wallace

• Jurisdiction: United States,Federal
• Publication year: 2002
• Citation: Vol. 53 No. 2

Bartnicki v. Vopper: The First Amendmentversus Privacy and the Ghost of Louis

Brandeis

In Bartnicki v. Vopper,¹ the United States Supreme Court held six to three that there could be no liability under Federal or Pennsylvania wiretap acts for a person who receives an illegally intercepted electronic communication from an unknown third party and publishes the communication when it contains information of public importance.² Further, to the extent that the Electronic Communications Privacy Act³ prohibits persons from publishing true information that is legally obtained by the publisher (regardless of the legality of the original source), it violates the First Amendment and is unconstitutional.⁴ In deciding this case, the Court explicitly reserved the question of "whether truthful publication may ever be punished consistent with the First Amendment."⁵

I. Factual Background

As part of difficult collective bargaining negotiations between a teachers' union and the school board in Pennsylvania in 1992 and 1993, Gloria Bartnicki and Anthony F. Kane, Jr., the union's "chief negotiator" and the president of the local union respectively, frequently engaged in lengthy cellular phone conversations about the progress of the negotiations. During one such conversation, an unidentified person intercepted one of the calls using an electronic radio scanner and recorded Bartnicki and Kane's conversation onto an audio tape.⁶

During the intercepted conversation, Bartnicki and Kane discussed several topics, including the possibility and timing of a strike, the public relations difficulties that the contentious negotiations were causing, and the stubbornness of the school board in refusing to compromise with the union's demands. While discussing the board's apparent lack of concern with the problems posed by the union, Kane said, '"If they're not gonna 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. (PAUSES) Really, uh, really and truthfully because this is, you know, this is bad news. (UNDECIPHERABLE)'"⁷

Following a settlement of the labor dispute that was generally favorable to the union, Vopper, a radio commentator, as part of his public affairs talk show, broadcast part of the intercepted conversation. Subsequently, the tape was played by another radio station, and local newspapers published written transcripts of portions of the tape, especially the conversation quoted above. Bartnicki and Kane filed suit in the Middle District of Pennsylvania against Vopper and other media parties who had broadcast the tape. During discovery, they learned Vopper received the tape from Yocum. Yocum led an organization that was opposed to the union's demands during the negotiations.⁸ Yocum was added as a defendant and testified that he received the tape from an anonymous source shortly after it was illegally intercepted. He recognized the voices of Kane and Bartnicki and played the tape for the members of the school board before later handing it over to Vopper.⁹

Kane and Bartnicki (plaintiffs) alleged that both Yocum and Vopper (defendants) intentionally published a conversation that defendants knew or had reason to know had been illegally and electronically intercepted in violation of both Pennsylvania¹⁰ and federal¹¹ wiretap acts. Both the state and federal laws provided civil remedies including actual, statutory, and punitive damages as well as attorney fees and court costs.¹²

Following discovery, both parties moved for summary judgment. The defendants contended that they had not violated either statute, arguing they had nothing whatsoever to do with the intercepted conversation, and their actions were not illegal because the conversation might have been unintentionally intercepted. They also argued that their right to publish the conversation was protected by the First Amendment. The district court rejected the defendants' first argument, as the scienter required by the federal statute did not require that the plaintiffs establish the defendants' actual involvement in the illegal interception. Their second argument was rejected because the actual content of the intercepted communication raised a genuine issue of material fact as to whether the interception was inadvertent or intentional (and therefore illegal). Finally, the district court determined that both laws were content-neutral laws of general applicability and subject only to intermediate scrutiny and did not violate the First Amendment.¹³

The defendants moved for and were granted an interlocutory appeal pursuant to 28 U.S.C. Sec. 1292(b),¹⁴ and the district court certified as questions of law whether the state and federal wiretapping statutes violated the First Amendment by imposing liability on Vopper and Yocum. The Third Circuit panel agreed with the plaintiffs that the federal and state wiretapping statutes were "content neutral" and provided no prior restraint on speech.¹⁵ The statutes would therefore be subject to intermediate scrutiny.¹⁶ Under this level of scrutiny, the court of appeals concluded that the statutes were invalid because they "deterred significantly more speech than necessary to protect the privacy interests at stake."¹⁷

In his dissent, Senior Judge Pollak agreed with the District of Columbia Court of Appeals that "[u]nless disclosure is prohibited, the damage caused by an illegal interception will be compounded."¹⁸ Because of the conflict in the circuits created by this Bartnicki decision and Boehner v. McDermott,¹⁹ the Supreme Court granted certiorari to resolve the conflict.²⁰

II. Legal Background

A. Protecting the Privacy of Oral and Wire Communications

Congress first demonstrated its intent to protect the privacy of electronically transmitted speech with the Communications Act of 1934,²¹ which established the Federal Communications Commission ("FCC").²² From that point on, Congress has (pursuant to the interstate commerce powers) sought to regulate and control most aspects of electronically transmitted speech. As technology has advanced, the laws have been revised, amended, and supplemented to better protect the privacy of transmitted speech. While the Supreme Court has found an unenumerated right of privacy by looking "to the penumbras" of the First, Third, Fourth, Fifth, and Ninth Amendments,²³ Congress instead looked to privacy and the threat to privacy from intercepted communications as it affects interstate commerce²⁴ in such areas as intellectual property, trade secrets, and securities regulations.²⁵

Any discussion of a legally enforceable right to privacy in American jurisprudence must necessarily begin with the seminal 1890 article by Louis Brandeis and Samuel Warren²⁶ simply entitled The Right to Privacy.²⁷ The article built on the common-law right '"to be let alone'"²⁸ that had been recognized for centuries in British courts and encouraged American judicial activism in the recognition of the right.²⁹ According to Brandeis and Warren, the principle that formed the right of privacy was rooted in a century and a half of the common law of property, contracts, and special trusts.³⁰ The article called for further protection by judicial application of the common-law rule, extending it to "protect one's self from pen portraiture, [and] from a discussion by the press of one's private affairs."³¹ The right, however, was not unlimited. Among others, "any publication of matter which is of general or pubic interest" could not be prohibited by exercise of the right of privacy.³² Specifically, the right of privacy should limit publications

which concern the private life, habits, acts, and relations of an individual, and have no legitimate connection with his fitness for a public . . . or quasi public position which he seeks or for which he is suggested, and have no legitimate relation to or bearing upon any act done by him in a pubic or quasi public capacity.³³

However, the mere "truth of the matter" or the "absence of 'malice'" could not be a defense if one's privacy were violated.³⁴ The publications of false statements that result in injury were already provided for by the torts of slander and libel.³⁵ Further, Brandeis and Warren viewed the violation of the privacy right as analogous to the tort of trespass, which requires intent but no corresponding ill-will.³⁶

Nearly thirty years later, Justice Brandeis's dissent in Olmstead v. United States³⁷ demonstrated his application of the principles articulated in The Right to Privacy.³⁸ In Olmstead, the Court affirmed the conviction of three defendants based upon conversations obtained by federal officers employing wiretaps.³⁹ Brandeis vehemently disagreed with the majority's finding that the use of the intercepted conversations against the defendants did not violate either their Fourth Amendment right against search and seizure or their Fifth Amendment right against self-incrimination.⁴⁰ Brandeis argued: "The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness .... They conferred . . . the right to be let alone—the most comprehensive of rights and the right most valued by civilized men."⁴¹

Congress's first foray into protection of the privacy of electronic communications is found in the Communications Act of 1934 that created the FCC.⁴² Section 605 of the Communications Act,⁴³ entitled "Unauthorized Publication Of Communications," prohibited any person involved in receiving or transmitting communications by wire or radio from "divulg[ing] or publish [ing] the existence, contents, substance, purport, effect, or meaning . . . to any person other than the addressee."⁴⁴ It further prohibited any person from intercepting wire or radio communications, or from in any way distributing the information contained in an intercepted communication.⁴⁵

Over thirty years later, Congress enacted Title III of the Omnibus Crime Control and Safe Streets Act of 1968...