A 'Supreme' case?

By: Robert Buckman Lawsuit ensues after pol says, 'Let's go to the audiotape'

If a public figure plays a recording of an illegally recorded telephone conversation at a news conference and the media report the details of that conversation, can the person who was recorded sue the media for invasion of privacy?
That is the question lawyers for Central Newspapers Inc. are asking the U.S. Supreme Court to answer in the wake of a Louisiana Supreme Court decision to reinstate just such a privacy suit against two newspapers.
The state's high court split, 4-3, April 1 to let stand a decision by a state appellate court to reinstate a lawsuit brought by two Alexandria, La., politicians against two newspapers after the opponent of one of them recorded the two politicians in conversation. A state district judge had dismissed the suit, saying the newspapers had reported information that was in the public domain.
Indianapolis-based Central Newspapers is the parent company of the Alexandria Daily Town Talk, one of the defendants in the suit. The Phoenix law firm of Steptoe and Johnson is representing Central Newspapers in its appeal to the U.S. Supreme Court.
David Bodney, a media law specialist who is handling the case for Steptoe and Johnson, says his application for review was filed June 29 with the U.S. Supreme Court.
"The odds are always long when someone seeks review at the highest level," he says, "but there are a number of factors that should make this case an especially appealing one for the court. It involves a legal-technical issue that has not been addressed, namely, the right of the press to report on an illegally recorded conversation."
The suit stems from a vitriolic race for a local judgeship in Avoyelles Parish, La., in an open primary Sept. 21, 1996. An incumbent district judge, Michael Johnson, defeated a challenger named Carol Aymond Jr. On Nov. 6, Aymond called a press conference at which he played a tape of an intercepted conversation between Johnson and McKinley "Pop" Keller, an Avoyelles Parish police juror, the Louisiana equivalent of a county commissioner. The conversation suggests that the two men were discussing vote-buying.
The Town Talk and a local weekly, the Avoyelles Journal, both carried stories about the news conference, including quotes from the taped conversation.
In a subsequent but unrelated proceeding, the Louisiana Supreme Court removed Johnson from the bench for ethical misconduct Nov. 25. Soon afterward, Johnson and Keller sued Aymond, the Town Talk, and the Journal for civil damages under the 1991 Louisiana Electronic Surveillance Act, which prohibits the recording of private conversations over wire or cellular telephone. In Louisiana, plaintiffs do not ask for specific damages ? damage awards are up to the jury.
Between August and October 1997, state District Judge William Bennett granted motions by the Town Talk and the Journal to dismiss them from the suit. On Dec. 23, 1997, the 3rd Court of Appeal in Alexandria overturned the district judge and reinstated the newspapers in the suit. The papers then appealed to the state's high court, which sits in New Orleans.
In their application for a review of the case, Susan Segura and Michael Percy, attorneys for the Town Talk, claim the appellate court erred on two counts.
The first error, the lawyers claim, was "holding that the First Amendment does not protect against civil liability under the [surveillance act] where (a) the press accurately reports on a matter of grave public concern, (b) the report contains information from an intercepted communication that was publicly revealed to the press, and (c) the press takes no part in any unlawful interception."
The second error, the attorneys claim, lay in the appellate court's "adopting a vague and indeterminate standard of intent for civil liability" under the surveillance statute, which requires that criminal violations be willful. Segura and Percy acknowledge that Aymond's actions violated the state's surveillance law, but they cite four precedents in which the U.S. Supreme Court has held that the First Amendment protects the media from liability for reporting confidential information illegally divulged by third parties. The principal precedent, they argue, is Florida Star vs. B.J.F. (1989), in which a newspaper reported the name of a rape victim the police had leaked in violation of Florida statute.
"The press cannot constitutionally be punished for publishing information of public concern ? however generated ? once the source of the information has placed it in the public domain," Segura and Percy argue in their writ application.
"To place the onus on a newspaper to keep secret that which has become public knowledge violates the First Amendment," Segura and Percy contend. They argue "the litigation brought by Johnson and Keller is an attempt to suppress the freedom of the press in Louisiana to report on matters of great public significance. They have co-opted a statute aimed at punishing those who intercept communications, and have turned it against newspapers that lawfully obtained the contents of the intercepted communications. If the decision of the 3rd Circuit is allowed to stand, then self-censorship by the press in Louisiana will result whenever reporters discover information that is even arguably subject to the Act."
The Louisiana Press Association filed a friend-of-the-court brief before the state supreme court in support of the newspapers' appeal, in which it warned that the 3rd Circuit's opinion would have a "chilling effect on freedom of the press."
In his brief, Marksville, La., attorney Keith Manuel, counsel for Johnson and Keller, maintained that the newspapers' accounts were "inaccurate transcripts of intercepted private communications ? Their [the newspapers'] first instinct was not to protect the public. It was to stir the public with sensational stories. The newspapers did as they do with all matters. They tried to sensationalize a story about public officials to, as the 3rd Circuit stated, sell newspapers and advertisements."
Justices Walter Marcus Jr., Catherine "Kitty" Kimball, Bernette Johnson, and Chet Traylor agreed with Manuel and upheld the appeal court. Dissenting were Chief Justice Pascal Calogero Jr. and Justices Harry Lemmon and Jeffrey Victory.
Jim Butler, executive editor of the Town Talk, says that he felt the Louisiana Supreme Court's decision amounted to "an obvious case of unconstitutional prior restraint. ? The other issue we wrestled with was the whole gray area of cellular conversations," he continues. "Any damn fool knows that a cellular phone is not private, and if he doesn't know it, he shouldn't run for public office."
Noting the discrepancy between the Louisiana Supreme Court's decision and a U.S. district court ruling in another high-profile case, Butler says, "Our hope is that the U.S. Supreme Court will look at these two cases and decide to set a standard. We are confident that they'll come down on the side of the press."

Buckman is an associate professor of communication at the University of Southwestern Louisiana.
The First Amendment
protects the media
from liability
for reporting
confidential
information
illegally divulged
by third parties.
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