Bartnicki v. Vopper, 532 U.S. 514 (2001)

Plaintiffs, a union president and a chief negotiator, had a cellular phone conversation in which threats were made against school board members. An unknown third party intercepted and taped the conversation, and left a copy with a local activist. The activist gave copies to the local media, which disclosed the contents to the public.

Plaintiffs sued the activist and media outlets under federal and Pennsylvania wiretap laws prohibiting the disclosure of an electronic communication when a party knows or has reason to know that the communication was unlawfully intercepted. The Supreme Court assumed that the defendants violated the statutes. The sole question was whether the First Amendment barred the statutes’ application on the specific facts of these cases.

Justice Stevens, joined by five other justices, concluded that the plaintiffs’ actions were barred. He began by characterizing the wiretap laws as content neutral, but then emphasized that the publication of lawfully obtained truthful information about a matter of public concern could not be punished ‘‘absent a need . . . of the highest order’’ (quoting Smith v. Daily Mail Publishing Co. [1979]). He found the government’s interest in deterring unlawful interceptions to be inadequate, noting that the government could further this interest more directly by punishing interceptors and not law-abiding possessors who disclose the information. By contrast, he characterized the government’s interest in protecting privacy of communication as ‘‘important,’’ recognizing that ‘‘fear of public disclosure of private conversations might well have a chilling effect on private speech.’’ Stevens suggested that this interest in protecting privacy and fostering private speech might justify disclosure prohibitions in most cases. But in this instance, he found the interest outweighed by the competing interest in having truthful information about a matter of public concern published. In reaching this narrow result, Stevens avoided the larger question of whether a party who himself unlawfully obtained truthful information could be punished for publishing the information and not merely for its unlawful acquisition. Justice Breyer, in a concurrence joined by Justice O’Connor, emphasized that he joined the majority’s opinion only because the speakers’ legitimate privacy expectations were ‘‘unusually low,’’ and the public’s interest in publication was ‘‘unusually high.’’

ALAN E. GARFIELD

References and Further Reading

• Fishman, Clifford S., Technology and the Internet: The Impending Destruction of Privacy by Betrayers, Grudgers, Snoops, Spammers, Corporations, and the Media, George Washington Law Review 72 (2004): 1503
• Huhn, Wilson R., Assessing the Constitutionality of Laws that Are Both Content-Based and Content-Neutral: The Emerging Constitutional Calculus, Indiana Law Journal 79 (2004): 801
• Terrell, Timothy P., and Anne R. Jacobs, Privacy, Technology, and Terrorism: Bartnicki, Kyllo, and the Normative Struggle Behind Competing Claims to Solitude and Security, Emory Law Journal 41 (2002): 1469
• Volokh, Eugene, Freedom of Speech and Intellectual Property: Some Thoughts After Eldred, 44 Liquormart, and Bartnicki, Houston Law Review 40 (2003): 697.