WASHINGTON-Can the news media disseminate information of public significance even if that information is stolen?
That is the question before the U.S. Supreme Court which last week heard oral argument in a case that could also impact a nationally significant case involving former House Speaker Newt Gingrich (R-Ga.).
The case comes from the U.S. Court of Appeals for the 3rd Circuit, which ruled last year that two radio stations and some newspapers were protected from being sued for publishing and broadcasting the contents of an intercepted phone call.
This was the opposite ruling from the U.S. Court of Appeals for the District of Columbia, which said the Electronic Communications Privacy Act of 1986 prohibited the interception of mobile-phone conversations and the dissemination of that information was unlawful. The D.C. Circuit case is being held at the Supreme Court pending resolution by the highest court in the land of the 3rd Circuit case.
The circumstances of the 3rd Circuit case go back to 1993 and a contentious labor dispute in Pennsylvania that received significant local media attention. Gloria Bartnicki, a union negotiator for the Wyoming Valley West School District Teachers’ Union, was talking to Anthony F. Kane Jr. on her cellular phone.
The contents of the call, which outlined whether the union should accept a 3-percent pay raise or keep pressing for 6 percent and which included veiled threats, were taped. The tape was delivered anonymously to the mailbox of Jack Yocum who gave it to a radio talk show host. The radio talk show host and the newspapers, which also reported the events, did not know who intercepted the call. To this day, no one has been convicted of intercepting the call.
Bartnicki sued Yocum and the radio stations for unspecified damages saying she felt violated when her private conversation was overheard by 100,000 people.
The case does not dispute that intercepting the call seems to violate both Pennsylvania state wiretapping law and ECPA, but rather whether allowing news organizations to publicize the contents is wrong.
The D.C. Circuit case received significant national media attention because it involved Gingrich and his since-resolved ethics case.
Rep. John Boehner (R-Ohio), then chairman of the House Republican Conference, was using a cellular phone in Florida during a conference call with Gingrich and other Republican leaders. Even though the others on the conference call were using wireline phones, everyone on the call could be heard by John and Alice Martin on their radio scanner because of Boehner’s cellular link.
The Martins, who have ties to the Democratic party, turned the tape over to Rep. Jim McDermott (D-Wash.), then ranking Democrat on the House Ethics Committee investigating Gingrich. The conference call involved strategy planning to deal with ethics violations against Gingrich.
McDermott subsequently gave copies of the tape to the New York Times, which broke the story on its Jan. 13, 1997, front page.
The Supreme Court questioning of the lawyers was vigorous with only Justice Clarence Thomas not chiming in at least once during the hour-long session.
Jeremiah A. Collins, arguing on behalf of Bartnicki and Kane, was forced to admit that an exception to the unlawful dissemination could be made “to protect life and limb” after Justice Sandra Day O’Connor said she had once been a trial-court judge involved in a case where a conversation about murder was at issue.
Collins also told O’Connor and the rest of the court that even if the information is of a public interest, if it was received illegally, they cannot disseminate it.
“We are saying a person that has information that is of public interest but how they received the information precludes them from publishing [it]. … We don’t deny that there are matters of public concern involved. The question is whether there is a significant government interest to have the content chilled,” said Collins.
Justice Anthony M. Kennedy seemed very concerned with the impact on the First Amendment.
“What you are doing here is suppressing speech that is important to the public,” said Kennedy in an exchange with Seth P. Waxman, solicitor general of the United States. The U.S. government joined in the case on Bartnicki’s side because of its impact on ECPA.
Justice John Paul Stevens said ECPA’s purpose was to “dry up the market” for intercepting and then disseminating wireless phone calls. Stevens questioned, however, how much of a market there was for this type of information.
Justice Antonin Scalia gave an insight to his personal behavior as he gave a warning to the court.
“I don’t use my home `wire-free’ [cordless] phone whenever I talk about anything to do with the court because anyone could intercept” the conversation, said Scalia.
Justice Stephen Breyer kept asking Lee Levine, representing Frederick W. Vopper (the radio talk show host who first broadcast the Bartnicki tapes), what the difference was between this information and if someone had gone into his house and stolen his diary and then reported what was in it. Breyer did not seem convinced by the various ways Levine tried to answer.
McDermott sat on the front row during last week’s oral argument but his spokeswoman referred all calls to his Chicago-based attorney Frank Cicero Jr. Cicero said that while it is always difficult to judge how the court will rule based on the questioning of the lawyers arguing the case, he was optimistic.
“I don’t think you can predict how the decision is going to go based on the questioning but I thought there were serious concerns about the First Amendment. I am optimistic,” Cicero told RCR Wireless News.
