Will Supreme Court give primacy to privacy?

Ombudsman

By Paul McMasters
First Amendment Ombudsman
First Amendment Center
pmcmasters@freedomforum.org

01.04.01

Printer-friendly page

While the public mind was focused on post-election legal battles, the Supreme Court heard arguments in a crucial clash between two of the rights Americans hold most important: privacy and the First Amendment. The issues this case raises are neither trivial nor irrelevant. If the court gets it wrong, we all pay the price.

The immediate focus of Bartnicki v. Vopper is the disclosure of an intercepted cellular telephone conversation between two union leaders in Pennsylvania. But the court's ruling will have a much wider impact on individual privacy and the ability of the press to inform the public about matters of consequence.

On the eve of a teachers' strike in May of 1993, union official Gloria Bartnicki was talking on her cell telephone with teacher Anthony F. Kane about the difference between the salary offer by the school district and what the teachers had demanded. Referring to members of the local school board, Kane 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. ..."

The conversation was recorded by an unknown person, who put a tape of the conversation in the mailbox of a school board member and another in the mailbox of Jack Yocum, leader of a group opposing the union. Yocum turned the tape over to Frederick Vopper, a radio talk show host. Vopper broadcast the remarks on his radio show.

Bartnicki and Kane sued Yocum and Vopper and two radio stations under a federal wiretap law, which has counterparts in 43 states and the District of Columbia. The law imposes civil and criminal penalties for disclosing the contents of communications illegally intercepted. When the suit reached the U.S. Court of Appeals for the Third Circuit, the judges ruled 2-1 that the law violated the First Amendment.

If the Supreme Court overturns the lower court's ruling, it may well blow the front porch off the First Amendment rights of the public and the press. Even so, such a ruling is quite possible. In today's wide-open society, privacy claims are potent, and the court has shown a willingness to elevate privacy over free speech in other cases.

There is no question that punishing individuals who illegally intercept cell phone communications is a legitimate government interest. It is quite another matter, however, to punish those who disclose legally obtained information of vital public interest.

But that is exactly what the stakes are in this case: The press faces punishment for reporting accurate, truthful information about possible threats to elected officials related to an ongoing and important controversy in the community. That information was obtained legally, had been disclosed already, and came from a cell phone conversation in which the participants should have had no reasonable expectation of privacy.

If the law as applied in this case passes constitutional muster, the press won't be the only loser. Private citizens might not be able to share with the public, the press or public officials information about threats, crime or corruption, even if they receive that information legally.

Further, the governmental interest the court is asked to place above the First Amendment interest is not actually served. As the Third Circuit majority wrote: "Faced with nothing 'more than assertion and conjecture,' it would be a long stretch indeed to conclude that the imposition of damages on defendants who were unconnected with the interception even 'peripherally promoted' the effort to deter interception."

In fact, the government interest in protecting the confidentiality of cell telephone conversations would be better served by prohibiting and punishing interceptions than by punishing the press for publishing truthful information that has already been disclosed.

Individuals concerned about their privacy would be better served by remembering that cell phones are radio transmitters. Obtaining security technology from their phone vendors would provide users with a more reasonable expectation of privacy.

In Bartnicki v. Vopper, the court is being asked to overlook significant First Amendment rights: the right of anonymous speech, the right of individuals to speak to the press, the right of the press to publish truthful information and the right of the people to receive information of vital interest.

Let's hope the Supreme Court justices recognize that whether Bartnicki and Kane had a reasonable expectation of privacy in a cell telephone conversation, it is not reasonable to expect the First Amendment rights of everyone else to yield to that claim.

Recent Ombudsman columns

• Is the press guilty of treason?
  Many regard robust exercise of First Amendment rights by either the press or the people as a dangerous problem in the fight against terrorism.08.08.02

• The Supreme Court's 'secondary' thoughts
  While Alameda Books ruling appears to bolster efforts to regulate adult businesses, several justices express concern that evolving secondary-effects doctrine threatens First Amendment.07.30.02

• Putting corporate security before national security
  Government is asking private citizens to take on more responsibilities, but is considering bribing private businesses to enlist in war on terrorism.07.22.02

• Congress must champion access
  Government information must be branded as crucial to democracy, to responsible governance and to freedom.07.11.02

• Denial of access shushes the democratic dialogue
  Some restrictions are warranted to guard against attack, but as government demands more information of Americans, it's asking Americans to demand less information from government.12.12.01

Related

Supreme Court: First Amendment trumps wiretap law
Justices rule radio host cannot be sued for airing illegally taped telephone conversation.  05.21.01

Browse more Ombudsman columns