By: Todd Shields
Newspapers Filed Briefs On Behalf Of Radio Station Defendant
WASHINGTON – Journalists often publish confidential
government memos and corporation documents with little concern
for how their sources obtained the papers. But they may have to
start worrying, depending on how the U.S. Supreme Court decides a
free-speech case it heard last Tuesday.
In a contest between the First Amendment right to publish and the
right to privacy, Pennsylvania union negotiators asked the high
court to allow damages against radio stations that aired a
recording of their cellular telephone conversation. Justices gave
little indication how they might rule. A decision for the union
officials could leave journalists – print as well as
broadcast – subject to a chilling effect as they consider
whether they might face lawsuits for publishing confidential
“This one is seminal. This is a question left open decades ago in
the original Pentagon Papers case,” said defense lawyer Thomas
Goldstein. The Pentagon Papers case established that government
could not restrain speech, but left moot whether journalists may
be punished after the fact.
Last week’s case, Bartnicki v. Vopper, tests a 1986
federal law that bars disclosure of information obtained from
illegally monitored cellular telephone conversations. In May
1993, union official Anthony Kane told union negotiator Gloria
Bartnicki that if the local school board did not increase its
salary offer, “We’re gonna have to go to their, their homes …
to blow off their front porches.”
Someone (still unknown to authorities) sent a tape recording of
the conversation to Jack Yocum, head of a taxpayers’ group
working to restrain teacher pay increases. Yocum gave the tape to
Frederick W. Vopper, a disc jockey, who played it on current-
affairs programs on stations WILK and WGBI.
A federal appeals court ruled that Bartnicki and Kane could not
sue Yocum, Vopper, and the radio stations. It said that First
Amendment guarantees trumped the anti-eavesdropping law.
Those filing briefs on behalf of the defendants included the
publishers of USA Today, The Washington Post, The Wall Street
Journal, The New York Times, the Chicago Tribune, and
During Tuesday’s arguments, Justices Sandra Day O’Connor and
Anthony M. Kennedy emerged as vigorous skeptics of a right to sue
after publication. “Why should the question of whether private
information should be published turn on how the information was
obtained?” O’Connor asked.
“What you’re doing here is suppressing speech that is important
to the public,” Kennedy told U.S. Solicitor General Seth P.
Waxman, who argued for the 1986 law. Waxman, the government’s top
trial lawyer, said the law is constitutional because it makes no
distinction about the content of the speech.
Justices Antonin Scalia and Stephen Breyer indicated concern for
privacy rights. Scalia said he avoids using his cordless
telephone for fear his conversations might be monitored. “You’re
saying it’s perfectly OK for somebody to pick it up and publish
it in The Washington Post?” Scalia asked. Breyer asked
whether it is permissible to steal a diary and publish its
contents, and, if so, “What kind of privacy is there?”
Lucy Dalglish, executive director of the Reporters Committee for
Freedom of the Press, said the case could for the first time
leave journalists liable to punishment for truthful speech that
is not obscene. If the radio stations lose, said Dalglish, who is
also a lawyer, she would have succinct advice for editors
pondering whether to publish a leaked document that may have been
illegally obtained: “You could be on the hook.”
Todd Shields (email@example.com) is the Washington editor for E&P.
Copyright 2000, Editor & Publisher.