Legal Principle at Issue

Whether publication of lawfully obtained communications that had been recorded by an illegal wiretap is protected by the First Amendment, despite being prohibited by a statute.

Action

The Supreme Court upheld the Third Circuit and ruled publication was protected by the First Amendment.

Facts/Syllabus

An illegal wiretap recorded a conversation between a union president and chief union negotiator in which the union president said: “If they’re not gonna move for three 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.” Various media outlets played or transcribed the tape, though the person who had illegally wire-tapped the conversation remained unknown.

Importance of Case

The Supreme Court held that publication was protected in this case. The Court found the government’s interest in deterring unlawful recording unpersuasive, writing, “The normal method of deterring unlawful conduct is to impose an appropriate punishment on the person who engages in it.” Though the Court found the government interest in privacy persuasive, “privacy concerns give way when balanced against the interest in publishing matters of public importance,” which the Court believed was present in this case.

In Bartnicki v. Vopper, 532 U.S. 514 (2001), the Supreme Court found that the First Amendment protects speech that discloses the contents of an illegally intercepted communication.

Vopper illegally recorded clip of Bartnicki

A cell phone call between Gloria Bartnicki, chief negotiator for the Wyoming Valley West School District Teachers’ Union, and Anthony Kane, a teacher and president of the union, was intercepted illegally. The subject of the call was teachers’ contract negotiations.

After completion of the negotiations, respondent Frederick Williams (also known as radio personality Frederick Vopper) was given a copy of the tape, and he played excerpts of it on his radio show during a public affairs segment about the contract settlement.

Bartnicki filed suit

Bartnicki and Kane filed suit for damages under federal and state wiretapping laws against Vopper and Jack Yocum, the president of an organization formed to oppose the teachers’ contract. Neither Vopper nor Yocum had actually illegally intercepted the conversation, but Yocum had given the tape to Vopper.

The petitioners alleged that the respondents had published the tape of the conversation despite the fact that they ”knew or should have known” that the tape was made illegally. Both petitioners and respondents filed motions for summary judgment.

Lower courts upheld wiretapping statute which said illegaly obtained information could not be disclosed

After examining the federal wiretapping statute (18 U.S. 2511), the district court determined that it stated clearly that an individual was in violation when disclosing information that he or she knew or had reason to know had been obtained illegally, regardless of innocence in the actual interception or recording. The district court further concluded that the question of whether the interception by an unidentified person was intentional or accidental represented a genuine issue of material fact that precluded summary judgment. The court, however, refused to accept the respondents’ arguments that, even if their conduct violated the wiretapping statute, such conduct was protected by the First Amendment. Rather, the court upheld the statute, finding that it did not attempt to regulate speech based on content (“content neutral”), but instead based on the illegal origins of the tape.

Circuit court struck down law

The 3rd U.S. Circuit Court of Appeals agreed to hear an interlocutory appeal, and the United States intervened as a petitioner to argue the constitutionality of the federal statute. Applying the standard of “intermediate scrutiny” after finding the statute to be “content neutral,” the Court of Appeals determined the statute to be overbroad by “[deterring] significantly more speech than necessary to protect the privacy interests at stake.”

The Court of Appeals thus found that the statute violated the First Amendment and remanded the case with instructions to grant summary judgment in favor of the respondents.

Supreme Court said wiretapping law could not be applied to innocent parties who simply published information

On appeal, the U.S. Supreme Court, in a 6-3 opinion authored by Justice John Paul Stevens, affirmed the decision of the 3rd Circuit, holding that the First Amendment protected the disclosures. The Court agreed that the wiretapping statute was “a content-neutral law of general applicability,” but also found that the statute could properly be considered a regulation of ”pure speech,” because it punished ”disclosure.”

Citing New York Times Co. v. United States (1971) and other cases, the Court asserted that “[a]s a general matter, ‘state action to punish the publication of truthful information seldom can satisfy constitutional standards.’” The Court thus carefully limited the question to be decided before considering the two interests asserted by the government in support of the statute.

In its ruling, the Court held that an interest in deterring the illegal interception of communications, while sufficient to allow application of the statute to those taking part in the illegal interception, could not be extended to allow the punishment of otherwise innocent third parties to discourage such interceptions.

In response to the second interest asserted by the government, that of protecting the privacy of communications, the Court acknowledged the ”strength” of this interest, but held that, under these facts, even “privacy concerns give way when balanced against the interest in publishing matters of public importance.”

Justice Stephen G. Breyer, joined by Justice Sandra Day O’Connor, concurred, emphasizing that “the Constitution permits legislatures to respond flexibly to the challenges future technology may pose to the individual’s interest in basic personal privacy.”

Dissenters stressed privacy values

In his dissent, Chief Justice William H. Rehnquist, joined by Justices Antonin Scalia and Clarence Thomas, stressed privacy values and accused the majority opinion of diminishing First Amendment values by “chilling the speech of the millions of Americans who rely upon electronic technology to communicate each day.”

This article was originally published in 2009. Dr. Linda Merola is an associate professor of Criminology, Law and Society at George Mason University. Professor Merola’s academic interests focus on constitutional law and, specifically, on understanding the ways in which societal changes may influence individual liberties. She has published numerous journal articles and research reports on topics related to civil liberties.

By Linda M. Merola cited https://www.mtsu.edu/first-amendment/article/575/bartnicki-v-vopper

Congress enacted the Communications Decency Act (CDA) as Title V of the Telecommunications Act of 1996 in an attempt to prevent minors from gaining access to sexually explicit materials on the Internet.

CDA prohibited transmitting obscenity to minors

Title V was not included in the initial drafts of the telecommunications act — whose purpose was to encourage new technologies and reduce regulation of the relevant industries in order to promote competition among service providers — but was instead offered as an amendment in the Senate after congressional hearings.

The CDA prohibited any individual from knowingly transmitting “obscene or indecent” messages to a recipient under the age of 18. It also outlawed the “knowing” display of “patently offensive” materials in a manner “available” to those under 18. This provision potentially included any individual providing content without a mechanism for verifying the age of the viewer, potentially requiring commercial and noncommercial content providers to institute costly screening procedures in order to avoid criminal prosecution.

The penalties for violating both provisions included fines, imprisonment, or both.

Congress included Miller test as guide in Communications Decency Act

Congress took measures to inoculate the CDA against constitutional challenge under the First Amendment by identifying material subject to prohibition under the act.

It mimicked intentionally the language in Miller v. California (1973) defining obscene speech, which does not enjoy First Amendment protection. The Miller test makes specific reference to materials “patently offensive” according to “contemporary community standards.”

The CDA borrowed this language in prohibiting the use of computer services to display to minors “any comment, request, suggestion, proposal, image or other communication that, in context, depicts or describes, in terms patently offensive as measured by contemporary community standards, sexual or excretory activities or organs.” The CDA also included a severability clause, directing any court holding portions of the statute unconstitutional to preserve the constitutionality of other portions of the statute.

ACLU and American Library Association challenged constitutionality

Immediately after President Bill Clinton signed the statute into law, the American Civil Liberties Union and numerous other organizations challenged its constitutionality. The American Library Association filed a separate suit attacking the CDA. Both lawsuits targeted the provisions criminalizing “indecent” and “patently offensive” online communications, but not the provision criminalizing obscene online expression.

A district court judge issued a temporary injunction against enforcement on the grounds that the term indecent was too vague to form the basis for criminal prosecution and might, as a result, well violate the Fifth Amendment.

A three-judge district court panel held that the CDA violated the First and Fifth Amendments, but permitted enforcement of the provisions specifically related to investigation and prosecution of obscenity and child pornography. The government appealed.

Supreme Court rules CDA violated First Amendment

In Reno v. American Civil Liberties Union (1997), the Court ruled the CDA to be unconstitutionally overbroad because it suppressed a significant amount of protected adult speech in the effort to protect minors from potentially harmful speech.

The opinion for the Court written by Justice John Paul Stevens acknowledged the legitimacy of the government’s interest in protecting children from harm while also noting that the level of suppression was unacceptable.

The use of indecent and patently offensive, far from narrowing the scope of the act, broadened its provisions to include any materials concerning sexual or excretory functions, regardless of whether such materials conformed to the other prongs of the Miller test, that is, appealing to a prurient interest and lacking other value.

The Court worried that health care materials, explicit discussions of techniques to prevent the transmission of AIDS, and other useful protected speech could be affected.

The decision affirmed the district court’s ruling, with all portions of the CDA, save those referring only to obscene speech, being declared unconstitutional. The obscenity provisions were deemed valid, as they simply prohibited speech that was not subject to First Amendment protection and were not challenged by the plaintiffs.

After the Court’s decision, Congress drafted another online pornography law called the Child Online Protection Act (COPA) of 1998, which has also fared poorly before the Supreme Court.

This article was originally published in 2009. Sara L. Zeigler is the Dean of the College of Letters, Arts, and Social Sciences at Eastern Kentucky University.

By Sara L. Zeigler cited https://mtsu.edu/first-amendment/article/1070/communications-decency-act-of-1996