Supreme Court weighs privacy vs. press freedom in wiretapping case

Wednesday, December 6, 2000

WASHINGTON — The Supreme Court yesterday took up its first
press-freedom case in nearly a decade, and left some First Amendment advocates
worried about the outcome.

Several justices expressed customary concern about government
restrictions on the news media — in this case a federal law that punishes
anyone, including the press, who discloses the contents of illegally wiretapped

But comments from other justices indicated that concerns about
personal privacy could trump freedom of the press in this case. It was just the
latest sign that the Supreme Court, like society in general, is giving greater
weight to privacy against the competing value of free expression.

The court heard arguments in the joined cases of
Bartnicki v. Vopper, and
United States v. Vopper.

In the midst of a Pennsylvania labor dispute in 1993, a cellular phone
conversation between teachers union official Gloria Bartnicki and teacher
Anthony Kane Jr. was taped by an unknown person. On the tape, Bartnicki and
Kane can be heard making threatening remarks aimed at school board members and
discussing the need to “blow off their front porches.” The tape ended up in the
mailbox of Jack Yocum, leader of a taxpayers group, who turned it over to local
talk show host Frederick Vopper, who put it on the air.

Bartnicki and Kane sued Yocum and Vopper, citing the federal wiretap
law that imposes criminal and civil liability on anyone who uses and discloses
the contents of illegally intercepted communications. The 3rd U.S. Circuit
Court of Appeals said the law could not be applied to the press without running
afoul of the Constitution, and Bartnicki and Kane appealed.

Before the Supreme Court yesterday, lawyers for Bartnicki and Kane, as
well as the Clinton administration, defended the law as an important,
content-neutral way of protecting the privacy of phone conversations. Society
has a “vital interest” in keeping “unwanted intruders” from listening in on
phone calls, said Bartnicki's attorney, Jeremiah Collins of Bredhoff &
Kaiser in D.C.

“There is no suggestion here of a censorious motive by the government”
in enacting or enforcing the law, added Solicitor General Seth Waxman.

But justices challenged the scope of the law, which could be read to
make criminals out of anyone who uses the information — even a journalist
who later writes about the controversy over the taped conversation.

“Why should it extend to a subsequent user who didn't do anything
wrong?” asked Justice Sandra Day O'Connor.

O'Connor and Justice Anthony Kennedy also noted that the information
disclosed in the Bartnicki case was
undeniably of public interest. “What you are doing here is suppressing speech
that is valuable to the public,” Kennedy said to Waxman.

Waxman said, “There are other constitutional values at stake,” but
Kennedy persisted.

“No one questions that you can punish the interceptor,” Kennedy said,
but “there is simply no precedent” for punishing the disseminators of
information of public concern if they did not obtain it illegally.

But when lawyers for Vopper and Yocum rose to speak, it was clear that
not all justices were sympathetic to the press cause.

Justice Antonin Scalia noted that “there's speech involved on both
sides,” suggesting that people would be more reluctant to speak on the phone if
they knew that dissemination of the contents of their conversations would go
unpunished. Scalia said he never uses his wireless phone at home to discuss
court matters for fear his remarks will be intercepted and published.

Lee Levine of the D.C. firm Levine Sullivan & Koch, arguing for
Vopper, said it would be appropriate to punish the interceptor or the person
who stole a diary from a house. But any news organization or broadcaster that
uses it afterward should not be liable. “This speech was truthful and a matter
of public interest,” he said.

Chief Justice William Rehnquist cited a
ruling from last term,
Hill v. Colorado, to suggest that privacy
interests can sometimes trump free-speech rights. In that case, the court
invoked the right of privacy in upholding a Colorado law that barred abortion
protesters from approaching clinic visitors uninvited in some

Levine said that case involved a time, place, or manner restriction on
speech, but the wiretap law imposes a “direct prohibition” on speech that is
not supported by the court's precedents.

D.C. practitioner Thomas Goldstein, representing Yocum, said the law
was “so broad” that it would apply to “the tenth party down the line” who
disclosed the contents of the tape. “It is too crude a weapon,” he said.

A decision in the case could come anytime before the end of the term
next June or July.

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