Two other cases feel immediate effect of Bartnicki

From the Summer 2001 issue of The News Media & The Law, page 10.

The U.S. Supreme Court vacated one lower court decision that contradicted the court’s recent opinion in Bartnicki v. Vopper and denied review of a similar case. The court’s order will likely halt a lawsuit brought by Rep. John A. Boehner (R-Ohio) against Rep. James A. McDermott (D-Wash.), according to McDermott’s lawyer.

On May 29, the Supreme Court ordered the U.S. Court of Appeals in Washington (D.C. Cir.) to reconsider its decision in Boehner v. McDermott in light of Bartnicki. In the same order, the court also denied certiorari in Peavy v. WFAA, in which an appellate court held a media organization could be liable for illegal wiretapping because it knew of the unlawful activity but nonetheless used the recording.

In Boehner, a Florida couple recorded a cellular phone conference call between Republican members of the House of Representatives discussing an ethics investigation of then-Speaker Newt Gingrich (R-Ga.). The couple gave a copy of the tape to McDermott, the ranking Democrat on the Ethics Committee. McDermott passed the tape on to The New York Times, The Atlanta Journal-Constitution and Roll Call. Each newspaper ran a story about the conversation.

Boehner, a participant in the conference call, sued McDermott for violating the Electronic Communications Privacy Act. After a federal district court dismissed the case as violating the First Amendment, the court of appeals reversed the decision. McDermott then filed a petition for review by the Supreme Court.

McDermott’s lawyer, Frank Cicero, told the Associated Press on May 29 he expected the D.C. appellate court to now rule that Boehner’s case may not proceed.

“I think it should be over,” Cicero said. “I’m a little surprised that they are twisting and turning and trying to keep this case going.”

Boehner’s attorney Michael Carvin filed a motion with the U.S. Court of Appeals in Washington (D.C. Cir.) that argued that Bartnicki was distinguishable from his client’s case because the person who gave the tape to the media in Bartnicki was a private citizen, but in his case it was a public official.

Carvin quoted a U.S. Supreme Court case for the proposition that “with respect to such public officials, restrictions on disclosure are not subject to the same stringent standards that would apply to efforts to impose restrictions on unwilling members of the public.”

The Supreme Court decided in Bartnicki that the First Amendment trumped privacy interests in a civil lawsuit under the federal wiretapping statute. But the Bartnicki decision was fractured, with two justices writing a concurrence that may limit its holding to its particular facts. Lawyers for Boehner might be able to emphasize the factual differences between the cases to keep the case going.

The main difference between Boehner, Bartnicki and Peavy v. WFAA is that in Peavy the “media defendant in fact participated in the interception at issue,” Stevens wrote in a footnote in Bartnicki.

In Peavy, the U.S. Court of Appeals in New Orleans (5th Cir.) ruled that a Dallas television station, WFAA-TV, and investigative reporter Robert Riggs may be civilly liable because they knew the recordings of a wireless phone call were made in violation of the law, but they nonetheless continued to use them.

Dallas-area resident Charles Harman began using a police scanner to listen to wireless telephone conversations of his neighbor, who was a school district trustee, in December 1994. Harman began recording conversations in which the trustee allegedly threatened him and discussed plans to unfairly interfere in the school district’s award of an insurance contract.

Harman contacted WFAA-TV about Peavy’s actions and said he had tape recordings to substantiate them. After discussions with an attorney, WFAA elected to disclose some of the tapes’ contents. Peavy sued Harman and WFAA.

Although the district court ruled, in deciding to dismiss the case, that the First Amendment protected the use of the conversations in the reports, the appellate court reversed. The court decided the First Amendment would not protect the station because the reporter had “full knowledge of the circumstances of the interceptions and with some participation concerning the interceptions.”

Because the Supreme Court has denied certiorari in Peavy, the Fifth Circuit decision will stand. Tom Leatherbury, counsel for WFAA-TV, said a scheduling order has been entered which sets the case for trial in March 2002. — DB