A cautionary tale for newsrooms

From the Summer 2001 issue of The News Media & The Law, page 11.

The Bartnicki decision may be as important to newsrooms for what it did not decide as for what it did. The court flatly refused to rule that a media defendant could be liable for the illegality of a third party when the media themselves were blameless. But the court also refused to rule that a media defendant could never be punished for printing truthful matters.

If the court had protected privacy over the public disclosure by the media, “its decision would have generated a wave of uncertainty in the everyday activities of newsrooms across the nation,” Theodore J. Boutrous Jr. said in a memo on the decision. Boutros, co-chair of the media practice group at Gibson, Dunn & Crutcher, filed a friend-of-the-court brief in the case on behalf of Dow Jones, the parent company of The Wall Street Journal.

Although the decision does not provide strict guidelines for the acceptance of materials from third parties, media attorneys and experts offered some advice and guidelines following the opinion.

Do not encourage or aid in unlawful wiretapping

“I think the rules are straightforward,” said Tom Goldstein, who argued before the Supreme Court in the Bartnicki case on behalf of Jack Yocum, who gave the tape to the media. “Don’t intercept or steal information or encourage others to do so. But if someone gives you real newsworthy stuff, as opposed to just gossip, you will be protected in publishing it.”

The majority in Bartnicki premised its ruling on the fact that the media, even if not ignorant that illegal conduct had occurred, at least had not encouraged or participated in the unlawful recording.

Further, the court effectively allowed for liability of a news outlet that encouraged a third party to make unlawful recordings by letting stand a Fifth Circuit decision, Peavy v. WFAA-TV.

“If you can establish that a newspaper in some way participated (in unlawful conduct) by signaling to someone that they would publish it, or if you could make the case that they were part of the conspiracy, obviously the newspaper could be punished,” said Ken Paulson, executive director of the First Amendment Center.

The opinion will probably apply to other unlawful activities

The Bartnicki case dealt with an unknown third person’s wiretap of a phone conversation, which is unlawful under the federal wiretap statute. But what would happen if the third person had committed another illegal act, such as stealing documents or violating a confidentiality agreement?

“One can argue that if it’s a matter of public concern and the reporter obtains the information lawfully that — except in some extraordinary circumstance that I can’t even come up with — this opinion, properly read, should provide protection even if it’s not a wiretapping case,” Boutrous said.

Watch out for private figures and private matters

The other important premise for the majority holding in Bartnicki was the fact that Anthony Kane and Gloria Bartnicki were discussing a matter of public importance.

“The right of privacy does not prohibit any publication of matter which is of public or general interest,” Justice John Paul Stevens said in the opinion, quoting the 1890 Harvard Law Review article by Samuel Warren and Louis Brandeis that is considered the foundation for the law on invasion of privacy.

Further, the concurring opinion underscored the fact that the speakers were also public figures who thrust themselves into the public controversy surrounding the negotiations.

“They thereby subjected themselves to somewhat greater public scrutiny and had a lesser interest in privacy than an individual engaged in purely private affairs,” Justice Stephen Breyer wrote.

The nature of the communication — the suggestion of violence — was not one that can be protected. “Where publication of private information constitutes a wrongful act, the law recognizes a privilege allowing the reporting of threats to public safety,” Breyer said.

Although neither the issue of private matters discovered from public persons nor private matters from private persons was before the court, the tone of the Bartnicki opinion suggested the court would not look favorably on the publication of such matters.

But Boutrous said it would be unlikely for a newsroom to publish purely private information about a public official, especially because so much of the lives of public officials touch on how well that person conducts official duties.

“I think almost anything the press views as important enough to disseminate should fall within that public concern test if it is about a public official and has something to do with performance of official duties,” he said.

“But on the other hand, I think the court seems to be suggesting that gossip about some private person that has not ever been in the public eye and who is not enmeshed in some issue of public concern, could raise questions that would not fall under Bartnicki.”

Examine policy on accepting materials from third parties

“The healthiest thing that can happen is for newsrooms to look at their ethics codes and decide exactly what they stand for,” Paulson said. “The time to decide whether you are going to accept purloined material is well before it comes in the door. You are always going to be tempted if the material that comes in is particularly salacious and interesting, so it’s important to know your values up front.” — DB