A CASE OF FREE SPEECH VERSUS FREE SPEECH? The Supreme Court Considers The the First Amendment Issues Arising from Disclosure of Illegally-Intercepted Communications

By JULIE HILDEN
julhil@aol.com
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Monday, Dec. 25, 2000

Earlier this month, the Supreme Court heard oral arguments in a particularly interesting and timely First Amendment case, Bartnicki v. Vopper. Bartnicki evokes a common fear — the fear that someone might read one's e-mail, or listen in on one's cellphone conversation, without permission, and that the resulting information might be published for all to see.

[Free Speech]

This fear, itself, is hard to argue with. As is often noted, few of us are so angelic that we would be happy to see our private thoughts and comments reprinted on the front page of The New York Times (or, as happened in Bartnicki itself, on local radio in our town). Not only would privacy be violated, but an important business negotiation could be ruined — or a marriage shattered.

What makes Bartnicki interesting, however, is that it considers how far the government can go to try to calm that fear, by using legal remedies to ensure the security of communications systems.

Jack Yocum was the head of a local taxpayers' association that had been formed to oppose the demands of a Pennsylvania teachers' union. One day, he found in his mailbox an audiotape containing a conversation between two union representatives (one of whom is named Bartnicki). Neither the person who left the tape for Yocum, nor the taper, was ever identified.

On the tape, one of the union representatives said that if the school board didn't agree with the union's salary proposal "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 these guys."

The representative later claimed these remarks were merely hyperbole, but they troubled Yocum — who passed the tape on to Frederick Vopper, a local radio talk show host, who played it several times, while the controversy over the union's demands was still ongoing.

Perhaps Yocum should have gone to the police instead, but Yocum asserted that he was worried about the safety of the school board members and their families, and the harm that could possibly come to them if he did not publicize the tape as soon as possible. (Of course, it's possible Yocum — a foe of the union whose representative had made the incriminating remarks — had other, more political motivations as well.)

The result was that Bartnicki and the other union representative invoked a provision of the federal wiretap state to sue Yocum and Vopper, who then claimed in court that the First Amendment barred the lawsuit from going forward. Yocum and Vopper lost in the district court but won, in a split decision, in the Third Circuit's court of appeals. The Supreme Court then accepted the case.

The Legal Issue: Disclosure of Illegally Intercepted Information

In deciding the case, the Court will consider the question of the constitutionality of the particular provision of the federal wiretapping statute upon which the union representatives based their suit.

That provision allows civil damages to be awarded for disclosure of the contents of illegally intercepted communications by a person who knew or had reason to know of the illegal interception — but who did not participate in, or encourage, the interception. (People who do participate in, or encourage, the illegal interception of communications are dealt with harshly in other provisions of the wiretapping statute.)

People who fit into this category are likely to be journalists, like Vopper, or prominent persons, like Yocum, who have media access. They will probably be people who themselves have done nothing wrong, but who are in a good position to publicize information that is given to them by people who have.

A Great Test Case — But One that Still Might Not Be A Winner

Several factors make this a good "test case" for the statute. Yocum's obvious lack of any knowledge of the source of the illegal tape, which was left for him anonymously, is one of them. Another factor is the clear public interest in the local school board negotiations, which were the tape's subject.

Finally, the fact that Yocum claimed he wanted to broadcast the remarks to avert violence makes his position more sympathetic — although the union representatives' positions may be somewhat sympathetic too, especially if they really were only joking about a stressful situation in a private setting they thought was safe.

Certainly if every cellphone threat to murder a boss, for example, were made public, many Americans would be in jail. Still, the specificity of the representative's remarks — about blowing up the front porches, in particular — is concerning, and it's hard to fault Yocum for his disclosure.

But while Yocum's is a good test case, it is winnable? It's hard to say. Bartnicki is a difficult case, for the very same reasons it is an important one: First, it pits the First Amendment against itself — or, at least, against the general principle that free speech is a desirable social goal. Second, it pits the First Amendment against serious privacy concerns.

The First Amendment versus the First Amendment?

The government claims that the statutory provision at issue protects not only privacy, but also the principle of free speech — the very principle on which the First Amendment is based.

There is some irony in this, for the government, in First Amendment cases, often is portrayed as the bad guy, the censor. In this case, though, the government claims that it is the one who wants free speech to run free — and the real censors are those who patrol the airwaves to intercept cellphone communications, preventing people from speaking freely. The government claims it merely seeks to "reassur[e] individuals that they can communicate freely and candidly in private."

This argument against equalization of speech evokes the specter of the "fairness doctrine" — which once forced the media to afford a right-of-reply to certain speakers, whether they wanted to or not. The idea was to equalize different political candidates and points of view. The doctrine is now widely considered, especially by conservatives, to have been a failure. And thus the analogy may make the conservative Justices shiver, and inspire them to strike down the law.

While the analogy isn't perfect, Yocum's attorneys have an excellent point: The government generally cannot ease the speech of one category of citizens (here, cellphone users) by making more difficult the speech of others (here, people like Yocum or Vopper).

The First Amendment versus Privacy

The government also argues that the provision at issue protects a privacy interest. That leads to another irony. In so arguing, the government relies heavily on a case it lost in the 1960's — Katz v. United States, which held that a warrant was necessary for a government wiretap, because a wiretap constituted a "search" under the Fourth Amendment. At the time, the government wanted to legally wiretap without a warrant, but the Supreme Court forbade it from doing so.

Although it took little heed of privacy when litigating Katz, the government now, in Bartnicki, is trumpeting Katz's pronouncements about privacy. Specifically, it contends that individuals' privacy requires the freedom to speak without fear of the "uninvited ear" of strangers. It also stresses that, as Katz held, each person has a "reasonable expectation of privacy in his personal telephone conversations."

Granted, this privacy interest is important. But, as Yocum's attorneys have pointed out, it may not be necessary for the government to be the entity that protects it. Instead, that privacy interest is being more and more heavily protected each day, through private initiatives. Private means of making e-mail secure (such as encryption), and of making cell phone conversations untraceable (such as digital technology), increasingly guarantee privacy for those who want it. Ironically, though, as in Katz, the strongest foe of these technologies is often the government itself.

Thus, Bartnicki shows the government playing both sides of the street. In stressing privacy, the Solicitor General may be taking positions that turn around and bite a subsequent Solicitor General later — when he or she argues against encryption, or in favor of measures that will make it easier for the FBI to trace cell phone calls.

Apparently the government's position is this one: Your communications are private, except when we are the ones who listen in; privacy for thee, but not from me.

Picking a victor in Bartnicki is too risky a venture, given all these complexities. But Yocum's plight — being sued over speech that he says he felt he had to disclose, in order to protect his neighbors — should resonate. Sometimes the most important speech has the most troubling origins; examples range all the way from The Pentagon Papers, to photographs taken by trespassing reporters (such as, perhaps, the famous photo of Elian Gonzales).

Secrets become secrets, and their disclosure leads to lawsuits, precisely because they are important, not just to their keepers, but often to all of us as well. The conflict is obvious. It's also irremediable. Someone will always lose — whether it is the secret keeper or the society that wants to know.

While it is strange that the government is siding with the secret keeper in Bartnicki, we can be fairly certain that, in other similar, conflicts, it may side with society — and the public good — instead. The balance is a difficult one to strike, for the costs of favoring either side are very real.


Julie Hilden, a FindLaw columnist, is a freelance writer living in Manhattan. A graduate of Yale Law School, from 1996-99 she practiced First Amendment law at the Washington, D.C. firm of Williams & Connolly. (Full disclosure: One of the Bartnicki attorneys, Erik S. Jaffe, was also previously a Williams & Connolly attorney. However, Hilden does not know him, nor did she consult with him concerning this column). Hilden also recently wrote for FindLaw about confidentiality contracts that limit employees' speech, in an article that can be found in the archive of her columns on the site.

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