Will Supreme Court give primacy to privacy?

Thursday, January 4, 2001

While the public mind was focused on post-election legal battles, the
Supreme Court heard arguments in a crucial clash between two of the rights
Americans hold most important: privacy and the First Amendment. The issues this
case raises are neither trivial nor irrelevant. If the court gets it wrong, we
all pay the price.

The immediate focus of
Bartnicki v. Vopper is the disclosure of an
intercepted cellular telephone conversation between two union leaders in
Pennsylvania. But the court's ruling will have a much wider impact on
individual privacy and the ability of the press to inform the public about
matters of consequence.

On the eve of a teachers' strike in May of 1993, union official Gloria
Bartnicki was talking on her cell telephone with teacher Anthony F. Kane about
the difference between the salary offer by the school district and what the
teachers had demanded. Referring to members of the local school board, Kane
said: “If they're not gonna move for three 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. …”

The conversation was recorded by an unknown person, who put a tape of
the conversation in the mailbox of a school board member and another in the
mailbox of Jack Yocum, leader of a group opposing the union. Yocum turned the
tape over to Frederick Vopper, a radio talk show host. Vopper broadcast the
remarks on his radio show.

Bartnicki and Kane sued Yocum and Vopper and two radio stations under
a federal wiretap law, which has counterparts in 43 states and the District of
Columbia. The law imposes civil and criminal penalties for disclosing the
contents of communications illegally intercepted. When the suit reached the
U.S. Court of Appeals for the Third Circuit, the judges ruled 2-1 that the law
violated the First Amendment.

If the Supreme Court overturns the lower court's ruling, it may well
blow the front porch off the First Amendment rights of the public and the
press. Even so, such a ruling is quite possible. In today's wide-open society,
privacy claims are potent, and the court has shown a willingness to elevate
privacy over free speech in other cases.

There is no question that punishing individuals who illegally
intercept cell phone communications is a legitimate government interest. It is
quite another matter, however, to punish those who disclose legally obtained
information of vital public interest.

But that is exactly what the stakes are in this case: The press faces
punishment for reporting accurate, truthful information about possible threats
to elected officials related to an ongoing and important controversy in the
community. That information was obtained legally, had been disclosed already,
and came from a cell phone conversation in which the participants should have
had no reasonable expectation of privacy.

If the law as applied in this case passes constitutional muster, the
press won't be the only loser. Private citizens might not be able to share with
the public, the press or public officials information about threats, crime or
corruption, even if they receive that information legally.

Further, the governmental interest the court is asked to place above
the First Amendment interest is not actually served. As the Third Circuit
majority wrote: “Faced with nothing 'more than assertion and conjecture,'
it would be a long stretch indeed to conclude that the imposition of damages on
defendants who were unconnected with the interception even 'peripherally
promoted' the effort to deter interception.”

In fact, the government interest in protecting the confidentiality of
cell telephone conversations would be better served by prohibiting and
punishing interceptions than by punishing the press for publishing truthful
information that has already been disclosed.

Individuals concerned about their privacy would be better served by
remembering that cell phones are radio transmitters. Obtaining security
technology from their phone vendors would provide users with a more reasonable
expectation of privacy.

In Bartnicki v. Vopper, the
court is being asked to overlook significant First Amendment rights: the right
of anonymous speech, the right of individuals to speak to the press, the right
of the press to publish truthful information and the right of the people to
receive information of vital interest.

Let's hope the Supreme Court justices recognize that whether Bartnicki
and Kane had a reasonable expectation of privacy in a cell telephone
conversation, it is not reasonable to expect the First Amendment rights of
everyone else to yield to that claim.