Press rights outweigh privacy in wiretapping case, justices find

Tuesday, May 22, 2001

WASHINGTON — The Supreme Court ruled yesterday that the First Amendment protects the news media even when they broadcast private cellular-phone conversations that were illegally intercepted by someone else.

Ruling in its first major press-freedom case in a decade, the high court said the federal law making it a crime to intercept and disseminate phone conversations cannot be used against the news media when they report on matters of public concern. The 6-3 decision came in the joined cases of Bartnicki v. Vopper and United States v. Vopper.

Acting on another major First Amendment dispute, the justices also agreed to consider next fall the case of Ashcroft v. American Civil Liberties Union, a test of the Child Online Protection Act, the latest effort by Congress to regulate Internet content for minors.

The Bartnicki ruling, long awaited by news organizations, was hailed as “excruciatingly important for the practice of journalism day to day” by Lee Levine, lawyer for Pennsylvania broadcaster Frederick Vopper. Vopper, known on the air as Fred Williams, was sued for airing a cell phone conversation between local labor leaders during heated labor negotiations between a teachers union and a school board. One intercepted comment suggested that union members go to the homes of school board members and “blow off their porches.”

If the court had ruled in favor of Gloria Bartnicki and Anthony Kane Jr., the union officials whose conversation was overheard and broadcast, media groups feared that journalists would have to trace the legal pedigree of information given to them to see if it was legally obtained by their sources.

Justice John Paul Stevens, writing for the majority, invoked New York Times Co. v. United States, the 1971 Pentagon Papers case, to embrace “the right of the press to publish information of great public importance obtained from documents stolen by a third party.”

Steven Shapiro, legal director of the ACLU, which supported the news media in the case, said, “Today's decision once again reaffirms the First Amendment right of the media to publish and broadcast information of public concern.”

The justices stopped short of saying that the press is always protected by the First Amendment when it publishes truthful information, no matter how it was obtained.

And while the court paid homage to the need for robust debate and an unfettered press, the opinion is laced with language asserting that protecting privacy is also an essential goal of government.

“Privacy of communication is an important interest,” wrote Stevens. “The fear of public disclosure of private conversations might well have a chilling effect on private speech.” In the case before the court, Stevens said public interest outweighed privacy concerns, but he implied that in other cases involving broadcast of “trade secrets or private gossip,” it might not.

In addition to Stevens' admonitions, a concurrence by Justices Stephen Breyer and Sandra Day O'Connor, as well as the dissent, spotlighted the privacy interests involved — language that could foreshadow future rulings less favorable to the news media.

“The Constitution permits legislatures to respond flexibly to the challenges future technology may pose to the individual's interest in basic personal privacy,” Breyer said.

Chief Justice William Rehnquist, in dissent, wrote that “the Court's decision diminishes, rather than enhances, the purposes of the First Amendment: [by] chilling the speech of the millions of Americans who rely upon electronic technology to communicate each day.” Justices Antonin Scalia and Clarence Thomas joined in the dissent.

Acknowledging the court's increasing attention to privacy concerns, Levine said, “Privacy is the battlefield for the future,” with the outcome for the news media uncertain.

Meanwhile, in the Internet case to be argued in the fall, Attorney General John Ashcroft is asking the court to revive a 1998 law that makes it a crime to place material on the World Wide Web that is “harmful to minors” unless children are blocked from viewing it.

Congress passed the law in the wake of the high court's 1997 decision in ACLU v. Reno that struck down an earlier effort by Congress to accomplish the same thing in with the Communications Decency Act.

The government argues that the new law is constitutional because, unlike the CDA, it applies only to material on the Web — not e-mail or newsgroups — and its definitions of harmfulness to minors are rooted in past Supreme Court decisions on obscenity. A district court judge and the 3rd U.S. Circuit Court of Appeals halted enforcement of the law, suggesting it would likely be struck down on appeal.

The ACLU, which challenged the law, said the constitutional flaws in the new law are identical to those that led the court to unanimously strike down the old statute.

“We welcome the opportunity to demonstrate to the court that Congress has once again fundamentally misunderstood the nature of the Internet,' said Ann Beeson of the ACLU.

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