Press advocates jittery about upcoming high court case

Friday, November 24, 2000

WASHINGTON — What the Supreme Court decides in a case stemming
from the illegal taping of a telephone conversation — and the subsequent
broadcast of that tape by two Wilkes-Barre, Pa., radio stations — has the
potential of dramatically changing the way the news media operate, free-press
advocates say.

The case,
Bartnicki v. Vopper, will be argued before the
high court on Dec. 5. First Amendment experts say that if the decision goes
against the media, it could open the door to lawsuits against news outlets for
the broadcast or publication of materials that, although true, may have been
obtained illegally by a third party who then passes that information on to the

The Bartnicki case arose
during contract negotiations between teachers and school district officials in
Wilkes-Barre. Gloria Bartnicki, chief negotiator for the teachers union, was
speaking on a cellular telephone with Anthony Kane Jr., a local teacher and
president of the union, about the prospect of city officials increasing their
pay offer. If they don't, Kane said, “well, we're going to have to go to their
homes to blow off their front porches,” and also made other threatening
comments, according to Floyd Abrams, a lawyer involved with the case.

The conversation was illegally intercepted and taped by an unknown
individual, and the tape was left in the mailbox of Jack Yocum, president of
the local taxpayers association. Yocum gave a copy of the tape to two radio
talk show hosts, one of whom subsequently broadcast the tape on sister stations
WILK and WGBI-AM. Local television stations aired portions of the tape as well,
and newspapers published a transcript.

Bartnicki and Kane then sued Yocum and the two radio stations under
federal and state wiretapping and electronic communications laws. Frederick
Vopper, who goes by the on-air name of Fred Williams, is one of the radio
personalities who aired the tape.

A federal district court judge in Scranton refused the broadcast
stations' request to throw the case out because it violated the First
Amendment, so the media outlets appealed to the 3rd U.S. Circuit Court of
Appeals, where a three-judge panel agreed with them, 2-1. Now, union officials
are asking the Supreme Court to overturn the federal appeals court and let the
case come to trial.

At issue is the appeals court's determination that the First Amendment
prohibits civil damages for disclosure of the anonymously provided tape
recording. The court noted that reporters do not always know the “precise
origins of information” they rely on, or whether that information “stems from a
lawful source.” If that sort of consideration has to be weighed before truthful
information can be revealed, the appeals court said a “cautious reporter” might
elect not to report information of public concern.

Lee Levine, a Washington lawyer who will argue the case before the
Supreme Court on behalf of the broadcasters, and Abrams, who is representing 22
news organizations that have joined in a brief supporting the broadcasters,
agree with the appeals court. They spoke on a Nov. 20 panel about the case at
the National Press Club.

“This is not a newsgathering case. This is a publication case,” said
Levine, adding that if applied to the news media, the statutes in question
would prevent dissemination of information received innocently by the media,
regardless of who provided it and how it was obtained.

“We have a case about truthful information, lawfully obtained
information” that was broadcast, Abrams said, noting that it would be “a major
shift in constitutional law” if media outlets could be sued for reporting the

Also on the panel, Steve Hammel, a former reporter who is now a news
director for a broadcast station, said, “The information that [the stations]
broadcast was truthful, and it was accurate, and it met the standards of good
journalism regarding public-interest need. When somebody in a community
threatens to blow up front porches, that information should be

Hammel said if the media loses before the Supreme Court “it would
certainly have a chilling effect on what we do as journalists, whether in print
or in broadcast.” Reporters are able to do whatever is necessary to verify
truth and accuracy, he said, but “we are not equipped to go through” additional
hurdles to try to find the actual source of information that comes to them over
the transom.

Abrams said the current Supreme Court has “always ruled for the press
in these type of cases” and it would be “a very disturbing development” if the
court were to uphold the statute protecting the privacy of telephone
conversations and subjecting the news media to fines for disseminating
protected material obtained from a third party.

“One of the issues here is whether the broad interest in privacy and
telecommunications will trump the broad interest in freedom to disclose
information that is truthful,” Abrams said.

Interviewed later by telephone, Jane Kirtley, Silha Professor of Media
Ethics and the Law at the University of Minnesota, said an adverse court ruling
could set the stage for future courts to overturn important principles such as
prior-restraint prohibitions in the
Papers case. In that case, The New York
won an important victory when the Supreme Court ruled the
Nixon administration could not stop the paper from printing the Pentagon
Papers, classified documents outlining U.S. policy deceptions about the Vietnam
War, that were leaked by antiwar activist Daniel Ellsberg.

“This would be the first time the court has ever said that if you do
nothing illegal to get truthful and accurate information … you can be
punished for publishing it. This is the Ellsberg case taken to the next step,”
Kirtley said.

An adverse ruling, had it been on the books in 1971, could have
resulted in “a major change in the decision in the Pentagon Papers case,”
Abrams said.

Kirtley said she worried about the Bartnicki case because of the dissenting argument
by the sole judge on the 3rd Circuit to reject the media's First Amendment

“The dissenting judge said it's hard to believe that a responsible
journalist would broadcast a tape like this without first authenticating it,”
said Kirtley, summarizing that opinion. “In the process of doing that
authentication, surely they would also find out whether it was a legal or
illegal interception, so why is this burdensome? Why is this a problem? In
fact, (the stations) did not air this tape immediately. I'm concerned they (the
Supreme Court justices) are going to listen to that (argument) and say what is
the problem with that.”

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