Stolen conversations and freedom of the press

Sunday, May 27, 2001

This week, the U.S. Supreme Court ruled that the right of a free press to publish information outweighs concerns about invasive new technology and the right to privacy.

It may well be the last time.

At first glance, the case of Bartnicki v. Vopper looks like a victory for the nation’s news media, affirming the right to publish information obtained by a third party through illegal means. The case involved the surreptitious taping of a conversation of two teachers’ union officials involved in contentious collective bargaining at a Pennsylvania high school.

Someone illegally taped a conversation by union officials exploring possible avenues for dealing with a school board. One comment from the tape: “If they’re not gonna move for 3 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.”

That tape eventually made its way to local news media, where it was published and broadcast. The question before the court was whether the press could be punished for distributing the contents of an illegally obtained tape. On balance, the court concluded that this was a matter of significant public interest and the press’ First Amendment right to publish truthful information meant that the media could not be punished for disseminating this purloined conversation.

The news media won this round, but as veteran sportswriter Jerome Holtzman once said, there should be “no cheering in the press box.”

The court’s 6-3 ruling was very narrow and suggests that as technology becomes more advanced and more invasive, the Supreme Court may well conclude that illegally obtained information — even information in the public interest — may not be shared with the public.

Consider the warning from concurring Justices Stephen Breyer and Sandra Day O’Connor: Capturing the contents of a marginally secure cell-phone conversation “is a very different matter from eavesdropping on encrypted cellular phone conversations or those carried on in the bedroom. But the technologies that allow the former may come to permit the latter.”

In other words, Breyer and O’Connor are suggesting that a more invasive use of technology to capture a conversation may lead them to a different conclusion in the future.

Add these concurring votes to those of the three dissenting justices, and you may have a new majority suggesting that the right to personal privacy should limit the rights of a free press to report on matters of public interest.

Some would readily endorse that view. After all, why let a newspaper or television station distribute information obtained from someone who violated the law? Doesn’t this make the media a “fence” for stolen information?

On the other hand, the Pentagon Papers case illustrates the clear benefit of publishing information that the government sought to keep out of the hands of the public. The papers detailing our Vietnam War policy were stolen, but The New York Times and Washington Post didn’t participate in the theft. Publishing that kind of information — no matter how obtained — is at the heart of the press’ watchdog role.

While the Supreme Court described the issues in Bartnicki as “novel and narrow,” this is by no means a new debate. In fact, the court cited the groundbreaking 1890 Harvard Law Review article by Samuel D. Warren Jr. and Louis Brandeis that first argued for a right to privacy.

A sampling of that pivotal article:

“The press is overstepping in every direction the obvious bounds of propriety and decency … . Instantaneous photographs and newspaper enterprise have invaded the sacred precincts of private and domestic life; and numerous mechanical devices threaten to make good the prediction that ‘what is whispered in the closet shall be proclaimed from the house-tops.’”

As Robert Ellis Smith points out in Ben Franklin’s Web Site, those “mechanical devices” included such then-cutting edge technology as “snap” cameras, the first sound-recording devices and the telephone.

The Brandeis and Warren piece was fueled by animosity toward an intrusive press and fear of emerging technologies. More than 110 years later, we’re at the same crossroads.

Today the public has clear concerns about the press overstepping “bounds of propriety and decency.” And the potential to see, hear and capture others’ conversations through the use of technology has never been so great.

In 1890, these dynamics led to a law review article that elevated privacy to a fundamental right and help shaped judicial decisions for a century. Those same dynamics today may forever change how we view the press’ right to publish.

This is a particularly troublesome case for those who embrace free speech. Certainly, the right of the press to publish truthful public information, even if stolen by a third party, can benefit society. On the other hand, will we be as candid and free in our exercise of First Amendment rights if there is a possibility that our speech may be captured by an unknown third party and then widely distributed by others?

There are no easy answers here. I do know, however, that in the century that followed Warren and Brandeis’ article, we saw the greatest growth of press rights in our national history. That free press has largely served us well, ferreting out corruption in government and closely monitoring those in power.

The challenge is to hold invasive technology at bay without handcuffing the news media. Concerns about personal privacy and a free press are on a collision course, and our nation’s priorities hang in the balance.

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