When Rights Collide
Is it OK to broadcast private conversations that were illegally intercepted by others?
By Jane Kirtley
Jane Kirtley (email@example.com) is the Silha Professor of Media Ethics and Law at the University of Minnesota's School of Journalism and Mass Communications.
GET READY FOR THE BATTLE of the titans: the First Amendment versus Privacy.
On December 5, the U.S. Supreme Court will hear Bartnicki vs. Vopper, a case that will decide whether journalists who broadcast intercepted tape recordings of telephone conversations can be sued under the Federal Wiretapping Act, even if they played no role in the interception.
In May 1993, Gloria Bartnicki, a teachers' union organizer in northeastern Pennsylvania, used her cell phone to speak with Anthony F. Kane Jr., president of his local union. During the conversation, Kane said, "If they're not going to move for 3 percent, we're gonna have to go to their...homes...to blow off their front porches...." Unknown persons recorded the conversation and put it in the mailbox belonging to Jack Yocum, president of a taxpayers' association that opposed the teachers' union. Yocum in turn passed the tape on to Frederick Vopper, host of a talk show carried by two local radio stations.
Some months later, Vopper repeatedly aired the tape on his show. Bartnicki and Kane brought a civil suit against Yocum, Vopper and the radio stations. The plaintiffs argued that it violates the Federal Wiretapping Act, as well as the Pennsylvania wiretap statute, to disclose the contents of an illegally recorded telephone conversation, even if the disseminators had nothing to do with the unlawful interception.
The media defendants countered that allowing them to be sued under these facts would violate their First Amendment rights by punishing them for reporting truthful information of public concern that they had acquired legally.
The U.S. Justice Department intervened in the case to defend the federal statute. The 3rd U.S. Circuit Court of Appeals, in a 2-1 decision, agreed with the radio stations. In an opinion by Judge Dolores Sloviter, the majority found that although protecting privacy in telephone conversations is an important governmental interest, applying the statute in this case would violate the First Amendment.
"Reporters often will not know the precise origins of information they receive...nor whether the information stems from a lawful source," she wrote. "Such uncertainty could lead a cautious reporter not to disclose information of public concern for fear of violating the Wiretapping Acts."
Judge Louis Pollak dissented. Privacy, he declared, is a cherished American value, comparable to the First Amendment. It is not enough, he argued, to prohibit electronic eavesdropping, or to punish disclosure only by those who participated in or encouraged the original interception. To protect privacy and to deter illegal wiretaps, recipients must be subject to the same sanctions as the interceptors, he wrote.
Pollak dismissed the majority's concerns about the inevitable chilling effect on newsgathering. A "responsible journalist," he argued, wouldn't think of publishing a transcript of a newsworthy telephone call without authenticating it first. "News reporting," he observed, "need not be an instant process."
And what if, after this painstaking investigation that delays the dissemination of news, the reporter erroneously concludes that the taping was legal, broadcasts it, and is then hauled into court to answer for it?
Pollak conceded that this would pose a "more substantial First Amendment difficulty." But he declared that adopting the government's suggestion that courts demand strict standards of proof that the journalist knew or had reason to know that the tape recording was illegal would deal with the "difficulties attendant on fact-finder oversight of journalistic practice." If not, Pollak wrote, appeals courts can be counted on to rein them in, as is supposed to happen in libel cases.
I wouldn't count on it. And although the Bartnicki case deals solely with civil liability, the underlying statute on which the suit is based includes criminal sanctions, too. Can we assume that federal prosecutors will be as circumspect when deciding whether to charge a journalist with the crime of disclosing an illegally intercepted tapeča crime with penalties including a fine of up to $10,000 or up to five years in prison?
It reminds me of U.S. Attorney General Janet Reno's promise that federal criminal penalties aimed at government employees who leak virtually any type of classified information will never be used against reporters who receive the information. Of course, even if that promise is kept, their sources will be hopelessly chilled.
National security is an important interest. Privacy is an important interest, too. But the Supreme Court has never held that either invariably trumps the First Amendment.
In the battle of Bartnicki, will it declare Privacy the winner?