Public concern outweighs privacy

High Court sides with press when school officials sued over recorded phone call

From the Summer 2001 issue of The News Media & The Law, page 7.

By Dan Bischof

In a term when the U.S. Supreme Court was increasingly concerned about protecting privacy interests, the justices bucked their own trend on a case that has significant implications to the gathering and distribution of news.

The court ruled on May 21 that the media cannot be held liable for publishing information of public concern that is obtained unlawfully by a source, but where the media are blameless for — even if not ignorant of — the illegal activity.

The court ruled 6-3 in Bartnicki v. Vopper that First Amendment principles trumped the privacy concerns of a school teacher’s union negotiator whose phone conversation with the union president was unlawfully recorded, then published by local media. The court ruled the interests the government put forth to justify the punishment of the media — such as to deter illegal recordings — were insufficient.

“Although there are some rare occasions in which a law suppressing one party’s speech may be justified by an interest in deterring criminal conduct by another, this is not such a case,” Justice John Paul Stevens wrote in the majority opinion.

The court also held the free speech interests outweighed individual privacy concerns, although it acknowledged that “the fear of public disclosure of private conversations might well have a chilling effect on private speech.”

“We’re gonna have to . . . blow off their front porches”

Bartnicki arose from contract negotiations with teachers in a Wilkes-Barre, Pa., school district. Gloria Bartnicki, chief negotiator for the local teachers’ union, spoke on her cellular phone with Anthony Kane Jr., a local teacher and president of the union, about teacher raises. During the conversation, Kane made comments about using violence to make a negotiating point.

“If they’re not gonna move for three percent, we’re gonna have to go their, their homes . . . to blow off their front porches, we’ll have to do some work on some of those guys,” Kane said.

While Bartnicki and Kane spoke, an unknown person intercepted the call, and a tape recording was left in the mailbox of Jack Yocum, president of the local taxpayers’ association. Yocum gave a copy of the tape to radio talk show hosts Fred Williams of WILK and Rob Neyhard of WARM. The tape was eventually broadcast simultaneously over WILK and WGBI-AM as part of a news and public affairs talk show and was aired on local television stations as well. Local newspapers also published transcripts of the call.

Bartnicki and Kane sued Yocum, Williams (whose legal surname is Vopper), WILK, and WGBI under both federal and state wiretapping and electronic communications laws. The federal district court in Scranton, Pa., refused the media parties’ requests to dismiss the case. But the U.S. Court of Appeals in Philadelphia (3rd Cir.) held the First Amendment prohibited penalties against someone who discloses an innocently received tape recording. The court saw the case as a balance between individual privacy interests and the right of the press to report on newsworthy items in the public interest. (See NM&L, Winter 2001)

On balance, court sides with free press over privacy

The Supreme Court’s decision was premised on three important factors: the media did not engage in or encourage the illegal recording, the subject of the conversation was a matter of public concern, and the conversation about blowing up porches was a proposed wrongful act.

In its decision, the majority acknowledged a similarity between Bartnicki and the landmark Pentagon Papers case in 1971, which held that the government could not halt publication of a secret defense department document revealed by a government employee. But the court said the question in this case was even narrower: This case only determined whether a publisher of information who was blameless in any illegality can be liable for publication when the source obtained the information unlawfully.

The Reporters Committee for Freedom of the Press joined a friend-of-the-court brief filed by more than 20 media outlets and associations. That brief urged the justices to follow the precedent of Florida Star v. B.J.F., a Supreme Court case which stands for the proposition that “where a newspaper publishes truthful information which it has lawfully obtained, punishment may lawfully be imposed, if at all, only when narrowly tailored to a State interest of the highest order.”

The majority seemed to follow that structure in deciding the issue. Typically, statutes that discriminate based on the content of speech are held to the highest level of judicial scrutiny and are frequently ruled unconstitutional. On the other hand, statutes that do not discriminate based on content often survive.

The majority here allowed for a balancing of free speech interests on the one hand and the purported interests asserted by the government on the other. The Court said the two interests served by the statute that were cited by the government — that punishing a broadcaster in this case would remove an incentive for parties to intercept private conversations and would minimize the harm to persons whose conversations had been illegally intercepted — fell short of that “highest order” standard.

But the majority was clearly conflicted in denying the privacy interests.

“Privacy of communication is an important interest,” Stevens wrote. “The fear of public disclosure of private conversations might well have a chilling effect on private speech.”

The Supreme Court’s ruling was grounded in terms of the nature of the speakers and the topic of conversation; the speakers were public figures discussing a matter of public importance. In ruling for public disclosure over private communications, Stevens supported “a profound national commitment to the principle that debate on public issues should be uninhibited, robust and wide-open.” Stevens also explained that the price of participation in public affairs “is an attendant loss of privacy.”

“We’re gratified the Supreme Court recognized the need to give greater weight to issues of public interest, and that the court recognized that the need for public debate on matters of public interest outweighed personal privacy,” said Lucy Dalglish, executive director of the Reporters Committee for Freedom of the Press.

“I think on balance that we can never be in a position where we would prohibit the publication of news and information that is legitimately in the public interest,” said Ken Paulson, executive director of the First Amendment Center.

But the court stopped short of making any categorical decision about whether the media can ever be punished for publishing truthful information. Stevens wrote that avoiding such a broad decision was consistent with the court’s longstanding position that “the future may bring scenarios which prudence counsels our not resolving anticipatorily.”

“It is amazing that they continue to duck the question, but I think it’s the right thing to do,” said attorney Tom Goldstein, who argued the case on behalf of Yocum. “All of the cases, from Pentagon Papers to Florida Star to Bartnicki, show that this question can come up in an infinite variety of fact patterns. A single, bright-line rule probably is inappropriate.”

Concurrence, dissent show closeness of decision

In a concurring opinion, Justices Stephen Breyer and Sandra Day O’Connor narrowed the reach of the already narrow majority holding.

“The Court does not create a ‘public interest’ exception that swallows up the statutes’ privacy-protecting general rule,” Breyer wrote. “Rather it finds constitutional protection for publication of intercepted information of a special kind” — where the public interest is “unusually high” and the privacy interest is “unusually low,” particularly because of the threat of physical harm.

At the outset, Breyer agreed with the majority’s “narrow holding” only because it was “limited to the special circumstances present here.” Then he underscored the significance of the facts to his reasons for joining the opinion. The media was blameless in the illegality, and Kane and Bartnicki — themselves public figures — had no legitimate interest in keeping a conversation concerning proposed violence private, he said.

Breyer also prodded federal and state legislatures to write laws that might protect against surreptitious privacy invasions.

“In my view, the Constitution permits legislatures to respond flexibly to the challenges future technology may pose to the individual’s interest in basic personal privacy,” he said.

Further, the fact that two justices concurred and three dissented showed how easily the decision could have swung against the media defendants.

The dissenters claimed Daily Mail and Florida Star were distinguishable from Bartnicki because in the previous cases the information was obtained from the government, not from private persons and because the information was already publicly available.

“Neither this Daily Mail principle nor any other aspect of [similar Supreme Court] cases, however, justifies the Court’s imposition of strict scrutiny here,” Chief Justice William Rehnquist wrote in his dissent, which Justices Antonin Scalia and Clarence Thomas joined.

“Were there no prohibition on disclosure, an unlawful eavesdropper who wanted to disclose the conversation could anonymously launder the interception through a third party and thereby avoid detection,” Rehnquist wrote.

The price of participation in public affairs

The decision came in a term when the court decided several cases in favor of individual privacy rights. The court upheld the privacy rights of a homeowner when ruling in Kyllo v. United States that police use of a thermal imaging device to gauge the heat inside a house violated the Fourth Amendment.

“We think that obtaining by sense-enhancing technology any information regarding the interior of the home that could not otherwise have been obtained without physical intrusion into a constitutionally protected area constitutes a search — at least where (as here) the technology in question is not in general public use,” said Justice Antonin Scalia, who wrote the majority opinion in Kyllo. “This assures preservation of that degree of privacy against government that existed when the Fourth Amendment was adopted.”

The court also protected privacy interests in two other criminal cases this term. In Ferguson v. Charleston, the court held that a public hospital cannot test patients for drug use and then notify the police. In City of Indianapolis v. Edmond, the court held that the use of drug-sniffing dogs at roadblocks whose express purpose was drug detection violated the Fourth Amendment.

Moreover, the justices were openly skeptical at the Bartnicki oral arguments in December of what would happen to personal privacy rights if the case was decided in favor of the media.

Breyer analogized the facts of the case to a thief who breaks into a house and steals a diary. Should a newspaper be held liable for publishing the contents of the diary even if it didn’t actually participate in the theft, he asked Vopper’s attorney, Lee Levine.

No, Levine said.

“So you’re saying that its unconstitutional to prohibit trespassers from coming into your house, steal your diaries, and listen to your most private conversations and then publish them in mass circulation dailies, and you can’t get damages from that as long as the newspaper itself didn’t do the trespass, just knew all about it?” Breyer asked.

Levine said the publication should not be punished.

“Then I don’t see how you’re going to have privacy left,” Breyer said. “I mean, what kind of privacy is there if people can break into your house, steal all your information, can be published in the newspaper that knows it and you can’t get any damages from the newspaper?”

Also at oral argument, Scalia confessed that he does not speak of court matters over his home cordless phone because he was concerned that the call could be intercepted.

“Why isn’t my ability to speak over the phone with some assurance of confidentiality an interest of the highest order?” he said. “I mean you have speech involved on both sides of this, bear in mind.”

Michael C. Dorf, a vice dean and constitutional law professor at Columbia University, noted how U.S. Supreme Court justices in particular have a personal interest in privacy issues.

“Look at the fact that the U.S. Supreme Court is one court in the country where there aren’t cameras,” Dorf said. “It was a big deal when the oral arguments in Bush v. Gore were played the same day on audio tape delay. Why is that? It’s partly because the justices like their anonymity, like their privacy.”

Viewed in terms of the other U.S. Supreme Court privacy cases this term, Bartnicki could be viewed as the “odd man out.”

“If you view Bartnicki as it is generally portrayed, which as a defeat for privacy and a victory for robust, formal interpretation of freedom of speech, then it’s a little surprising when contrasted with other decisions that protect privacy pretty robustly on the Fourth Amendment,” Dorf said.

The difference in the cases may not only be in the constitutional amendments at stake — in Bartnicki it was the First, and in the other cases, it was the Fourth — but also in the technology used.

“In Bartnicki, clearly some of the justices were influenced by the fact that this conversation, although obtained illegally, was obtained on a relatively open channel,” Paulson said. “When people use cell phones there is a minimal expectation of privacy, but if a journalist decides to use a device not in general public use to obtain information, it’s more likely that there will be consequences.”

Often the court is only concerned with invasions of privacy by the government, but here the court looked to protect against invasions of privacy by private individuals.

“Normally, the court regards government and private invasions of privacy very differently, but here they certainly were concerned that private conversations not be intruded upon by anyone,” Goldstein said. “That is particularly true of the dissenters and the Breyer concurrence.”

Dorf said although the court sided with the media on the privacy interests, the decision can be read as privacy-friendly because it is narrowly confined to the specific facts.

“On the whole this Supreme Court is neither hostile nor friendly toward privacy claims,” he said. “I think that where they are most sensitive in cases that involve ‘law-abiding privacy’ — privacy for people who are not criminals,” he said, pointing to the Kyllo case as one time when the court was likely concerned about the effects technology might have on non-criminals.

Balancing in free speech case may mark change in court approach

The decision may mark a turning point in the way the Supreme Court handles First Amendment cases. The court’s willingness to balance First Amendment interests against other constitutional interests is a change from how the court has dealt with speech cases.

Fearful that a case-by-case balancing of free speech principles against other interests would harm speech, the court for the last 40 years has refused to balance constitutional interests against free speech. The court, under Justices Hugo Black and William Douglas, moved toward the application of more rigid rules protecting free speech and away from the earlier balancing seen in the “clear and present danger” test.

This new approach could produce more unpredictable results and weaken speech protection. For example, Dorf asked rhetorically in a May 31 article in findlaw.com, what if one or more of the factors that the Court relied on were not present?

“The answer to a question such as this is inherently uncertain because, notwithstanding the metaphor of balancing, precise weights are never assigned to any of the factors,” he said.

“I think all of the factors are vital, and without all of them we would have lost,” said attorney Goldstein. “For example, the court declined to send back to the Fifth Circuit the WFAA-TV case in which the TV station had been involved in the interception.”

The WFAA-TV case, which had a petition for certiorari pending before the court when Bartnicki was decided, had similar facts to Bartnicki, except that in WFAA, the media defendant participated in intercepting a phone conversation.

Dorf said the court may engage in more balancing in the future in cases with competing speech interests, especially as new technology emerges.

“The court inevitably has to balance because a lot of the most interesting and difficult social problems involve competing legitimate interests,” he said. “Think about encryption. On which side of the ledger do you put the interest of freedom of speech in an encryption case? On the one hand, encryption permits speakers to speak freely. On the other hand, not having encryption means everything is open.”

Goldstein agreed. “I think we will see more situations in which the court must balance privacy and speech rights as the law adapts to the information economy,” he said.