High court asked to resolve split in lower courts over federal wiretap law

Wednesday, May 17, 2000

The U.S. Supreme Court has been asked to determine the constitutionality of a federal law that punishes individuals who disclose contents of wire, oral or electronic communications that the individuals know were illegally intercepted.

Divergent decisions by two federal appeals courts illustrate the conflict inherent in this latest clash between free-speech and privacy interests. Opponents of the law argue that disclosure of truthful speech on a matter of public significance should not be punished — as long as the person or entity disclosing the information has no role in illegally obtaining the information.

Supporters of the law counter that it is necessary to protect the privacy of electronic communications.

The law, which is part of the Electronic Communications Privacy Act, prohibits the intentional disclosure “to any other person the contents of any wire, oral or electronic communication, knowing or having reason to know that the information was obtained through the interception of a wire, oral, or electronic communication.”

In Boehner v. McDermott, a divided three-judge panel of the U.S. Circuit Court of Appeals for the District Court of Columbia on Sept. 24, 1999, rejected the First Amendment challenge to the federal law by Rep. James McDermott, D-Wash. McDermott had released a pirated recording of a cell phone call by Rep. John Boehner, R-Ohio, to The New York Times and other newspapers.

In Bartnicki v. Vopper, a divided three-judge panel of the 3rd U.S. Circuit Court of Appeals on Dec. 27, 1999, upheld the First Amendment challenge to the federal law by an individual, a talk-show host and two radio stations. Jack Yocum, president of an organization opposed to a teachers union's proposals, had received from an anonymous source a tape of a telephone conversation between individuals heavily involved in the teachers union contract negotiations. Yocum released the taped telephone conversation to talk-show host Fred Williams (also known as Frederick Vopper). Williams played part of the tape on his show which was broadcast by two local radio stations.

In both cases, the federal government intervened to defend the constitutionality of the law.

In McDermott, the D.C. Circuit ruled 2-1 that the federal law was constitutional. “Eavesdroppers destroy the privacy of conversations,” Judge A. Raymond Randolph wrote for the majority. “Unless disclosure is prohibited, there will be an incentive for illegal interceptions.” Randolph distinguished between the media and McDermott, a private individual. Randolph intimated that McDermott engaged in no speech when he disclosed the information. “When a newspaper publishes, it engages in speech,” he wrote.

Judge David Sentelle dissented, finding it hard to draw a line between media and non-media defendants. “I have never believed that the First Amendment protection of the freedom of the press afforded greater protection to professional publishers than it does to anyone who owns a typewriter, or for that matter than its protection of the freedom of speech affords those who communicate without writing it down,” he wrote.

Sentelle concluded: “The First Amendment protections of speech and the press extend to those who speak and those who write, whether they be press barons, members of Congress, or other sources.”

In Bartnicki, the 3rd Circuit panel ruled 2-1 against the law. Judge Dolores Sloviter, who wrote the majority opinion, first said that the act of disclosing speech is a form of speech protected by the First Amendment. “If the acts of disclosing and publishing information do not constitute speech, it is hard to imagine what does fall within that category, as distinct from the category of expressive conduct.”

The majority ruled that “the provisions will deter significantly more speech than is necessary to serve the government's asserted interest.”

“It is likely that in many instances these provisions will deter the media from publishing even material that may lawfully be disclosed under the Wiretapping Acts,” Sloviter wrote. The panel feared that many reporters would simply not disclose information for fear of violating the law.

The 3rd Circuit majority distinguished McDermott on the fact that McDermott was not a member of the media.

“The Boehner court was acutely aware that no court has yet held that the government may punish the press through imposition of damages merely for publishing information of public significance because its original source acquired that information in violation of a federal or state statute,” Sloviter wrote.

Judge Louis Pollak dissented, finding that the majority “overstates the potential problems of the media.” Pollak wrote, “There appears to be a widespread legislative consensus that the imposition of civil liability on persons engaged in conduct of the kind attributed to these defendants is an important ingredient of a regime designed to protect the privacy of private conversations.”

“The statute is constitutional as applied to both media and non-media defendants,” said Michael Carvin, Boehner's attorney. “The U.S. Supreme Court has indicated in other contexts that media defendants do not have any greater First Amendment rights than non-media defendants.”

Frank Cicero, McDermott's attorney, agrees that media and non-media defendants should be treated the same under the statute. “There should not be difference between the free-speech rights of individuals and the media,” he said.

However, he argues for a different result — that the statute be ruled unconstitutional in the case of both a media and non-media defendant.

Donald Brobst, who represented three of the four defendants in the Bartnicki case before the 3rd Circuit, said,”If the information is newsworthy and of public concern, then privacy interests are outweighed.”

Carvin disagrees, saying, 'There is an obvious, palpable and important difference between disclosing someone else's speech and engaging in your own speech.”

Carvin says that the provisions of the Electronic Communications Privacy Act further freedom of speech by protecting private conversations.

“The whole point of the protecting private conversations is ensuring you don't chill them,” he said. “If you know that your cell phone conversation could end up on the front page of The New York Times, you will be less candid in your conversations.”

The D.C. Circuit majority agreed with this notion, finding that the wiretapping laws promote, rather than limit, freedom of speech.

Brobst disagrees with Carvin and the D.C. Circuit that the wiretapping law furthers freedom of speech. “I find it hard to believe that a law that sanctions speech somehow protects speech. The case is important because there is an important principle at stake — the government should not be able to sanction the mere publishing of information of public significance. This goes right to the heart of the First Amendment.”

Cicero agrees. “These cases are important because the law is an effort to punish truthful speech,” he said.

Both cases have been appealed to the Supreme Court. The federal government has also filed its own appeal of the 3rd Circuit decision.

Cicero, Brobst and Carvin all agree that given the split among the federal circuit courts, there is a good possibility that the high court will decide to hear the cases and determine the constitutionality of the federal law.