Tale of the tapes

Courts give no clear guidance on journalists’ receipt or use of illegally recorded phone conversations

From the Fall 2004 issue of The News Media & The Law, page 22.

By Grant Penrod

In the three years since the U.S. Supreme Court ruled that the First Amendment protected a journalist’s use of an illegally intercepted and anonymously delivered tape of a cell phone conversation, subsequent lower court decisions have confused the issue of when reporters may legally use an illegally intercepted call.

Despite the high court’s Bartnicki v. Vopper ruling in 2001, the assumption is no longer that publication of illegally intercepted conversations is protected if the reporter did not participate in the illegal interception and recording of the conversation.

Since the Bartnicki decision, lower courts — most recently the U.S. District Court in Washington, D.C., in Boehner v. McDermott — have limited the scope of Bartnicki in a string of similar cases.

The issue is incredibly important for the news media, said Lee Levine, a media attorney who represented Vopper at the Supreme Court.

“Are we going to permit the government to regulate truthful transmission [of information] on matters of public concern because of someone else’s illegality?” he said. On a practical level, reporters regularly receive information that arguably has some flaw in how it was obtained, such as through a leak or a whistleblower, he added.

The Boehner case stems from the 1996 House Ethics Committee probe of then-Speaker of the House Newt Gingrich (R-Ga.). Two Florida Democrats, Alice and John Martin, used a police scanner to intercept a conversation among Republican House members, including Gingrich and Rep. John Boehner (R-Ohio), about how to handle the ethics investigation. Boehner, driving in Florida at the time, was talking on a cell phone when the Martins recorded the conversation.

The Martins gave a tape of the conversation to Rep. Karen Thurman (D-Fla.), who advised them to give it to Rep. James McDermott (D-Wash.), the ranking Democrat on the House Ethics Committee. The Martins gave the tape and an explanatory cover letter to McDermott on Jan. 8, 1997. McDermott then gave copies to a number of newspapers, including The New York Times, the Atlanta Journal-Constitution and Roll Call, a Capitol Hill newspaper. The Times used information from the tape for a front-page story two days later.

Boehner sued McDermott in federal court in Washington, D.C., for disclosing the contents of the tape in violation of federal wiretapping laws. On July 28, 1998, Judge Thomas F. Hogan dismissed the case, ruling that “[t]he First Amendment prevents the government from punishing the disclosure of truthful, lawfully obtained information of public significance.” On appeal, the U.S. Court of Appeals in Washington, D.C., reversed, and McDermott appealed to the U.S. Supreme Court.

On May 21, 2001, while the appeal was pending, the Supreme Court issued its ruling in Bartnicki, changing the course of the Boehner litigation.

Bartnicki involved a contentious 1993 Kingston, Pa., teachers’ union dispute. WILK radio commentator Fred Vopper broadcast a recording of an intercepted cell phone conversation between union negotiator Gloria Bartnicki and local union president Anthony Kane in which Kane said: “If they’re not going to move for 3 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 source of the recording was never publicly identified.

A tape was left in the mailbox of Jack Yocum, president of a taxpayers’ group opposed to the union, who gave it to Vopper. Bartnicki and Kane sued Vopper, the radio station and Yocum for violating federal wiretapping laws.

Justice John Paul Stevens, in the 6-3 majority opinion, wrote that Bartnicki presented “a conflict between interests of the highest order — on the one hand, the interest in the full and free dissemination of information concerning public issues, and, on the other hand, the interest in individual privacy and, more specifically, in fostering private speech.”

In holding that the First Amendment right to disseminate information was the more weighty interest, the court noted three important facts that would distinguish cases like Bartnicki from those cases where the right to privacy would prevail.

First, Vopper and Yocum had nothing to do with the illegal interception and recording of Bartnicki’s and Kane’s conversation. They learned about it after the fact and never found out who intercepted the recording.

Second, even thought the interception was illegal, Vopper and Yocum obtained the tape lawfully because the federal statute does not prohibit the receipt of an illegally obtained recording.

Finally, the subject matter of Bartnicki and Kane’s conversation was a matter of public concern. Stevens cited the months of negotiations and public debate over the proper compensation of public school teachers. Justice Stephen Breyer also noted in his concurring opinion that public safety concerns were raised by Kane’s suggestions to “blow off their front porches” and “do some work on some of those guys.”

Marc Rotenberg, executive director of the Electronic Privacy Information Center, thinks the court struck the wrong balance. “There is a speech interest in allowing people to communicate in a speech network without it being disseminated to others,” he said. By distinguishing whether the subject is a matter of public concern, courts, and not the news media, are put in a position of deciding what is newsworthy, Rotenberg said.

Following the Bartnicki decision, the Supreme Court vacated the appeals court’s ruling in Boehner and sent it back for reconsideration. The appeals court in turn sent the case back to the district court in December 2001.

A third case working its way through the courts at the same time as Bartnicki and Boehner, Peavy v. WFAA-TV, first illustrated the limits of the Supreme Court’s decision.

In July 2000, the U.S. Court of Appeals in New Orleans (5th Cir.) ruled that Dallas, Texas, investigative reporter Robert Riggs and WFAA-TV could be held liable under state and federal wiretapping laws, because Riggs had participated in an illegal recording by providing advice and soliciting additional recordings. The Supreme Court noted the Peavy decision in Bartnicki, and in May 2001 declined to review the case, leaving the 5th Circuit ruling intact.

The U.S. Court of Appeals in Denver (10th Cir.) also distinguished Bartnicki in another case, Quigley v. Rosenthal. The court ruled in April 2003 that the disclosure in a press conference and civil lawsuit of facts from illegally recorded cordless phone conversations was punishable.

The court ruled that the subject of the conversations — anti-Semitic remarks — was not a matter of public concern. Although derogatory, they “represented nothing more than private thoughts about an inherently private matter.” The court also ruled that, unlike in Bartnicki, the defendants did not accurately portray the contents of the conversations, and while they did not procure the recordings, the defendants knew who did and knew that they continued to do so.

In light of these decisions, on Aug. 20, Judge Hogan issued his decision in Boehner. Hogan found that McDermott knew — via the Martins’ letter — of the illegal recording at the time he accepted the tape. Hogan explained Bartnicki as holding, “that a defendant who anonymously receives illegally intercepted information without present knowledge of its illegality has obtained it lawfully.” Therefore, McDermott’s subsequent disclosure to the news media was not protected by the First Amendment. Hogan noted that, if McDermott had learned of the contents of the letter after taking possession of the tape, the result would have been different.

McDermott’s attorney, Frank Cicero Jr., said the case may be appealed once issues related to damages are resolved in District Court. He does not see the difference between Bartnicki and Boehner as a “constitutionally significant distinction.”

Levine agrees, calling it a “distinction without a difference.” According to Levine, Hogan also misconstrued the factual situation in Bartnicki. Because the case was being decided on Vopper’s motion to dismiss, the Supreme Court viewed the facts as stipulated by Bartnicki, including that Vopper knew about the illegal recording when he obtained the tape.

Before Boehner, Levine said it was assumed that if the media did not participate in an illegal interception or recording, publication of the contents of the recording was protected by the First Amendment, but that is no longer clear.

“What is clear,” Levine says, “is that if you receive an illegally obtained document . . . literally over the transom without any forewarning that it is coming and it is on a matter of public importance, you should be OK in publishing.”