Court backs publishing illegally intercepted info

Justices rule that public interest is paramount, provided media didn’t participate in the illegal means used

By Kevin Goldberg

The United States Supreme Court has bolstered protections for newsgathering by holding that press may publish or broadcast illegally obtained information, as long as they do not participate in the illegal means used to obtain that information. While stopping short of creating an unfettered right to publish truthful information, the Court’s decision in Bartnicki v. Vopper relegates that portion of truthful information which may not be published to a very small universe.

The facts

In 1992 and 1993 a union representing the teachers at a Pennsylvania high school engaged in collective bargaining negotiations with the local school board. In 1993, the union’s chief negotiator used a cellular telephone to engage in a lengthy conversation with the union’s president about the status of the negotiations. An unidentified person intercepted and recorded the call, in which the union president made some very strong statements, including threats of potential violence directed at members of the school board.

After an agreement had been reached, a local radio commentator played a tape of the intercepted conversation on his public affairs talk show; another station also broadcast the tape and its contents were published in a local newspaper. These media outlets had received the tape from the head of a local taxpayer’s organization who, in turn, had found the tape in his mailbox, where it had been left by an unknown party.

The union negotiator and union president filed suit, relying on federal and Pennsylvania statutory provisions which allow punishment of any person who “intentionally discloses, or endeavors to disclose, to any other person, the contents of any wire, oral or electronic communication, knowing or having reason to know that the information was obtained through the interception of a wire, oral, or electronic communication.”

The Supreme Court decision

The case eventually made its way to the United States Supreme Court which, in a 6-3 decision, prohibited punishment for publication of these tapes, though it stated that it was not creating a categorical rule that truthful publication may never be punished.

The Court found that the law’s purpose of protecting the privacy of wire, electronic, and oral communications was not actually furthered by punishing the media entities in this case. The law would provide no impediment to the interception of private conversations — the Court noted that “it would be quite remarkable to hold that speech by a law-abiding possessor of information can be suppressed in order to deter conduct by a non-law-abiding third party.” Further, while it may protect those whose conversations have been illegally intercepted, this interest does not outweigh the core interest of the First Amendment to allow debate on matters of public concern to flourish.

What this means

The press may not engage in the interception of private conversations, whether these conversations are written, oral or electronic in nature, because it is not immune from prosecution under laws of general applicability.

Punishment will rarely, if ever, be imposed upon the press for publishing truthful information when it had no hand in the illegal means used to the obtain the information or any knowledge that it was illegally obtained.

The press may publish information it knows or suspects has been obtained via illegal means, as long as it did not participate in the illegal acquisition itself and as long as the information relates to matters of public concern — a term that is often, of course, subjectively defined by the courts and which must be balanced against the expectation of privacy in the speech at issue.

The press may not publish information it knows was obtained illegally, if that information relates purely to matters outside of public concern, such as disclosures of trade secrets, domestic gossip, or other purely private matters.

It is also important for newspapers to review any insurance policies they may have to determine whether newsgathering activities and, in particular, those newsgathering activities involving illegally intercepted information are covered.

Many policies are geared toward libel defense and do not include suits which are not based upon the content of the speech (i.e., suits other than those for defamation, invasion of privacy, intentional infliction of emotional distress, etc.)

Goldberg is a lawyer with Cohn & Marks, Washington, and provides legal counsel to ASNE.