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

• Author: Kimberly M. Bond
• Pages: 597-626

Page 597

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. Page 598 "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 Page 599 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 ensures that the government does not sanction the publication of information concerning public policy or political figures. Advocates of this goal argue that the First Amendment protects the freedoms of speech and press to advance the goal of creating a more informed constituency.¹⁹ Page 600

B Protecting False Speech

To ensure unhindered access to information and to protect political speech, the Court protects false speech in certain situations. In the libel line of cases, the Court has found that without protection from libel damages, the media would engage in self-censorship.²⁰ Thus, sanctioning the press violates the First Amendment by restricting the flow of information that should be available for public debate. Balancing the reputational interests of the public figure/official libel plaintiff against the chilling effect on the press, the Court's libel decisions have favored protecting the press.²¹

In balancing the interests at stake, the Court examines whether the injured party is a public or private figure. The libel cases provide that public figures and public officials must prove that the false statements published by the press were made with actual malice; that is, with knowledge that the statements were false or with reckless disregard of the truth.²² The Court has found that public figures and public officials have a lesser expectation of privacy than private citizens primarily because of their voluntary participation in public life.²³ In addition, the Court has concluded that public figures and officials require less protection because they are afforded greater access to the media to counter allegedly false statements made against them.²⁴

The Supreme Court's analysis in the libel cases turns on whether the information at issue is private or a "matter of public concern."²⁵ In making the threshold determination of what is a public concern, the Court's Page 601 analysis is "determined by the content, form and context of a given statement, as revealed by the whole record."²⁶ Thus, when information is a matter of public concern, the First Amendment limits recovery for defamation regardless of the party's status as public or private.²⁷

C Protecting Disclosure of Lawfully Acquired Truthful Information

In a line of cases referred to as the Newspaper Cases, the Court was presented with the issue of whether the First Amendment protects the press from liability when they disclose truthful information that was lawfully obtained.²⁸ In Cox Broadcasting Corp. v. Cohn and Oklahoma Publishing Co. v. District Court of Oklahoma County, the Court held that the First Amendment protects the press when publishing information contained in public records.²⁹

Similarly, in the 1978 decision of Landmark Communications, Inc. v Virginia, the Supreme Court found that the First Amendment protects the press against sanctions imposed by the state for disclosing information on investigations of members of the judiciary.³⁰ In this case, a Virginia statute made it a misdemeanor to report on Judicial Inquiry and Review Commission proceedings.³¹ After publishing a report that named a judge under investigation by the Commission, the newspaper was found guilty of violating the statute.³² The state's asserted interest was protecting the confidentiality of the proceedings.³³ However, the Supreme Court found that, while the interest in confidentiality protects the reputations of judges Page 602 under investigation, "injury to official reputation [was] insufficient" to overcome First Amendment protections of the press.³⁴

Arguing that "truthful reporting about public officials in connection with their public duties is always insulated from the imposition of criminal sanctions by the First Amendment," the newspaper based its argument on the libel standard established in New York Times v Sullivan.³⁵ Refusing to establish such a categorical rule, the Supreme Court found that the report at issue was at the "core of the First Amendment".³⁶ Thus, strict scrutiny was advanced as the standard of review in cases where the government attempts to prevent publication of truthful information.

The next year, in Smith v. Daily Mail Publishing, the court reiterated the rule that a state cannot punish publication of truthful information absent an interest of the highest order.³⁷ In this case, a West Virginia statute prohibited the media from publishing the name of any minor charged as a juvenile offender.³⁸ The newspaper violated the statute by publishing the name of a teen involved in a school shooting.³⁹ The Supreme Court stated that precedent supported the conclusion that "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."⁴⁰ The Court found that the constitutional protection of the press outweighed the state's interest in protecting the confidentiality of juvenile offenders.⁴¹ In concurrence, Justice Rehnquist found the state's interest to be of the highest order; however, he noted that the legislation did not achieve its stated purpose because only newspapers were...