First Amdendment Friday 11 – Bartnicki V Vopper.

(11 am. – promoted by ek hornbeck)

Happy Friday and welcome to the 11th in the Dog’s First Amendment Friday series. This series is following the syllabus for the class called The First Amendment and taught at Yale Law School by Professor Jack M. Balkin. As with the Friday Constitutional series this is a layman’s look at the Law, specifically the Supreme Court opinions which have shaped the boundaries of our 1st Amendment Protections. If you are interested in the previous installments you can find them at the links below:

Originally posted at

First Amendment Friday 1 – Abrams v US

First Amendment Friday 2 – Gitlow v New York

First Amendment Friday 3 – Whitney v California

First Amendment Friday 4 – Brandenbrug V Ohio

First Amendment Friday 5 – Bridges V California

First Amendment Friday 6 – Planned Parenthood V ACLA

First Amendment Friday 7 – New York Times V Sullivan

First Amendment Friday 8 – Butts V Curtis

First Amendment Friday 9 – Gertz v Welch Inc.

First Amendment Friday 10 – Hustler V Falwell

This week we look at a privacy case that runs aground of the First Amendment via the publishing of illegally intercepted cell phone conversation.

The Case

Kane and Bartnicki, two union negotiators sued a Mr. Vopper for playing an illegally recorded cell phone conversation where they discussed the nature of negotiations and tactics they might employ. The plaintiffs sued under State and Federal statutes prohibiting the revelation of private conversations.

The Facts

In 1993 a contract was concluded through non-binding arbitration which was generally considered to be favorable to the teachers. After the contract was concluded a Mr. Vopper, a local radio show host who had been critical of the teachers unions demands, played a cell phone conversation on the air. This conversation was between the plaintiffs and disclosed their feelings about the negotiations and tactics, including a strike proposal.

The tape had been given to Mr. Vopper by a Mr. Jack Yocum the head of the local tax payers association anonymously. Mr. Yocum had received it in his mail box with no identifying information. Since there was no legal way to obtain this conversation, the plaintiffs sued for invasion of privacy. They included Mr. Yocum as well as other radio stations and newspapers who printed transcripts of the conversation.

The Procedural History

The defendants offered three arguments against the case, first off that they had not violated the statute since they had nothing to do with the interception; second the conversation might have been inadvertently intercepted and therefore would not be illegal; that the First Amendment Protected them from liability.

Both sides filed for summary judgment in the District Court. The Court found the disclosure of information which is known or should be known to be illegally obtained violates the actual language of the statue, and rejected that argument. The Court found for the defendants that the plaintiffs would have to prove it was illegally obtained, but said that the content gave some indication of intent. The Court rejected the First Amendment argument based on the fact the statute was content neutral, meaning it was not an attempt to suppress speech some might find objectionable and so was Constitutional.

This was appealed to the 3rd Circuit Court of Appeals.

The Appellate Court found that while the law was content neutral, the statutes went too far, and deterred speech more than was strictly necessary to protect privacy interests. In a 2 to 1 decision Court found for the defendants. However the dissenting Judge used a test from the DC District to find against. The Supreme Court accepted the case to resolve the dispute between the cases.

The Legal Issues

Does the State have the right to punish the disclosure of illegally obtained information, if the publisher was not involved in the illegal act of obtaining the information?

Does the public interest in an issue trump the citizen’s interest in privacy?

The Majority Opinion
, by Justice Stevens

Justice Stevens starts by accepting the plaintiffs contention the conversation was intercepted illegally and that the subsequent disclosure violated the State and Federal statues on this. He also accepts the premise that under both statutes there were entitled to damages from each of the defendants. This confines the issue before the Court to whether the application of these statutes is in this case violates the First Amendment.

Justice Stevens writes:

In this case, the basic purpose of the statute at issue is to “protec[t] the privacy of wire[, electronic,] and oral communications.” S. Rep. No. 1097, 90th Cong., 2d Sess., 66 (1968). The statute does not distinguish based on the content of the intercepted conversations, nor is it justified by reference to the content of those conversations. Rather, the communications at issue are singled out by virtue of the fact that they were illegally intercepted-by virtue of the source, rather than the subject matter.

   On the other hand, the naked prohibition against disclosures is fairly characterized as a regulation of pure speech. Unlike the prohibition against the “use” of the contents of an illegal interception in §2511(1)(d),subsection (c) is not a regulation of conduct. It is true that the delivery of a tape recording might be regarded as conduct, but given that the purpose of such a delivery is to provide the recipient with the text of recorded statements, it is like the delivery of a handbill or a pamphlet, and as such, it is the kind of “speech” that the First Amendment protects. As the majority below put it, “[i]f the acts of ‘disclosing’ and ‘publishing’ information do not constitute speech, it is hard to imagine what does fall within that category, as distinct from the category of expressive conduct.” 200 F.3d, at 120.

Here the Justice is laying out the point they will decide, does the regulation disclosure of private speech which has as its content an issue of public interest become protected speech, regardless of the way that private conversation was obtained.

He goes on to discuss New York Times V United States, which is the Pentagon Papers case where stolen documents about the Vietnam war were given to a NYT reporter and published.

Justice Stevens:

The question here, however, is a narrower version of that still-open question. Simply put, the issue here is this: “Where the punished publisher of information has obtained the information in question in a manner lawful in itself but from a source who has obtained it unlawfully, may the government punish the ensuing publication of that information based on the defect in a chain?” Boehner, 191 F.3d, at 484-485 (Sentelle, J., dissenting).


  The Government identifies two interests served by the statute-first, the interest in removing an incentive for parties to intercept private conversations, and second, the interest in minimizing the harm to persons whose conversations have been illegally intercepted. We assume that those interests adequately justify the prohibition in §2511(1)(d) against the interceptor’s own use of information that he or she acquired by violating §2511(1)(a), but it by no means follows that punishing disclosures of lawfully obtained information of public interest by one not involved in the initial illegality is an acceptable means of serving those ends.

What the Justice is saying here is that there is no reasonable prohibition on disclosing information, even illegally collected information, if you are not the one who collected it illegally, as long as it is a matter of public interest. Basically Justice Stevens is reading the law very, very narrowly here and using the fact the Congress did not detail this particular situation in its statute to find the defendants are in the clear, since they did not collect the conversation, they merely disclosed it once it was given to them.

He goes on to make the argument that the interest in privacy by the State and so they the plaintiffs should be protected. He takes this apart by using the test of public interest. Justice Steven writes:

In this case, privacy concerns give way when balanced against the interest in publishing matters of public importance. As Warren and Brandeis stated in their classic law review article: “The right of privacy does not prohibit any publication of matter which is of public or general interest.” The Right to Privacy, 4 Harv. L. Rev. 193, 214 (1890). One of the costs associated with participation in public affairs is an attendant loss of privacy.

“Exposure of the self to others in varying degrees is a concomitant of life in a civilized community. The risk of this exposure is an essential incident of life in a society which places a primary value on freedom of speech and of press. ‘Freedom of discussion, if it would fulfill its historic function in this nation, must embrace all issues about which information is needed or appropriate to enable the members of society to cope with the exigencies of their period.’ ” Time, Inc. v. Hill, 385 U.S., at 388 (quoting Thornhill v. Alabama,

The basic idea is that even though the Union officials were on a cell phone with reasonable expectations of privacy, since they were talking about something the public had an interest in, when their privacy was violated; they have no recourse, since it was a public issue. The Dog hates this reasoning.

The majority affirmed the finding of the 3rd Circuit that the defendants were in the clear since the statutes both Federal and State violated the First Amendment.

The Dissent

Chief Justice Rehnquist starts out by pointing out the history of the law and how the fact that not knowing who might be listening to our conversations is an egregious violation of our privacy. He then makes his primary argument:

The Court holds that all of these statutes violate the First Amendment insofar as the illegally intercepted conversation touches upon a matter of “public concern,” an amorphous concept that the Court does not even attempt to define. But the Court’s decision diminishes, rather than enhances, the purposes of the First Amendment: chilling the speech of the millions of Americans who rely upon electronic technology to communicate each day.

Justice Rehnquist’s point is that if there is no way to prevent the disclosure of private conversations, even if they are about matters of public interest, then it will in effect make people self censor when they are on cell phones.

He goes on to point out the problem is not that the conversation was disclosed but that it was obtained illegally and then disclosed.

The antidisclosure provision is based solely upon the manner in which the conversation was acquired, not the subject matter of the conversation or the viewpoints of the speakers. The same information, if obtained lawfully, could be published with impunity. Cf. Seattle Times Co. v. Rhinehart, 467 U.S. 20, 34 (1984) (upholding under intermediate scrutiny a protective order on information acquired during discovery in part because “the party may disseminate the identical information … as long as the information is gained through means independent of the court’s processes”). As the concerns motivating strict scrutiny are absent, these content-neutral restrictions upon speech need pass only intermediate scrutiny.

The point the Chief Justice is making is that the High Court has used the wrong level of test on the statutes. Intermediate scrutiny is used when there a very important government interest and it is furthered by substantially related means. The Majority used strict scrutiny as the test, since they find the First Amendment protections on speech of public interest to trump the value of privacy.

He goes on to discuss how 40 States as well as the Congress felt the need for private discussions to stay private (within reasonable restrictions) was an important government interest, as a free people must be able to discuss  issues of great moment with each other and not have it made public, as part of the decision making process all citizens should engage in.


These statutes undeniably protect this venerable right of privacy. Concomitantly, they further the First Amendment rights of the parties to the conversation. “At the heart of the First Amendment lies the principle that each person should decide for himself or herself the ideas and beliefs deserving of expression, consideration, and adherence.” Turner Broadcasting,. By “protecting the privacy of individual thought and expression,” United States v. United States Dist. Court for Eastern Dist. of Mich., (1972), these statutes further the “uninhibited, robust, and wide-open” speech of the private parties, New York Times Co. v. Sullivan, (1964).

He then concludes his dissent with this

So there it is citizens. The Dog finds himself in the uncomfortable position of agreeing with Chief Justice Rehnquist and Justices Scalia and Thomas here. There is a very compelling need for a people to know who and what is going on public issues, but if a conversation is obtained illegally, through wiretapping, that is out of bounds. There is no interest that can be served by breaking the law. This is point the Majority missed in their zeal to defend the public’s right to know on issues that confront them.

That is the Dog’s point of view, what is yours, citizens?

The floor is yours.

Housekeeping; the Legal Information Institute is the source for the opinions. You can find today’s case here.


  1. this morning!  

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