Académique Documents
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January 2002
Bartnicki v. Vopper
Richard D. Shoop
Recommended Citation
Richard D. Shoop, Bartnicki v. Vopper, 17 Berkeley Tech. L.J. 449 (2002).
Available at: http://scholarship.law.berkeley.edu/btlj/vol17/iss1/26
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CONSTITUTIONAL LAW: FIRST AMENDMENT: FREE SPEECH
BARTNICKI V. VOPPER
By RichardD. Shoop
2002 Berkeley Technology Law Journal & Berkeley Center for Law and Technology.
1. 18 U.S.C. 2511 (2001); 18 PA. CONS. STAT. 5703 (2001) (the federal and
Pennsylvania state "anti-wiretap statutes").
2. 53 U.S. 514 (2001).
3. Id. at 518.
4. See, e.g., Boehner v. McDermott, 191 F.3d 463 (D.C. Cir 1999), cert. granted,
532 U.S. 1050; Peavy v. WFAA-TV, Inc., 37 F. Supp. 2d 495 (N.D. Tex. 1999), aff'd in
part, rev'd in part, 221 F.3d 158 (5th Cir. 2001).
5. See, e.g., Fla. Star v. B.J.F., 491 U.S. 524 (1989); Smith v. Daily Mail Publ'g
Co., 443 U.S. 97 (1979); Okla. Publ'g Co. v. Dist. Ct., 430 U.S. 308 (1977); Cox Broad.
Corp. v. Cohn, 420 U.S. 469 (1975) (discussing cases involving "publication of truthful,
lawfully obtained information").
BERKELEY TECHNOLOGY LAW JOURNAL [Vol. 17:449
6. The Daily Mail line of cases are named for Smith v. Daily Mail Publishing Co.,
443 U.S. 97 (1979), and also includes New York Times Co. v. United States, 403 U.S.
713 (1971), Landmark Communications, Inc. v. Virginia, 435 U.S. 829 (1978), and Flor-
ida Star v. B.J.F., 491 U.S. 524 (1989).
7. See Stephen L. Sapp, Private Interceptions of Wire and Oral Communications
Under Title IIl: Rethinking CongressionalIntent, 16 AM. J. CRIM. L. 181, 184 (1989).
8. See id. at 181. Title III replaced the Federal Communications Act of 1934 (the
"FCA"), which governed only law-enforcement electronic surveillance. The FCA was
enacted partly in response to Supreme Court decisions such as Katz v. United States, 389
U.S. 347 (1967), in which the Court held that warrantless wiretapping was a violation of
the Fourth Amendment. See Sapp, supra note 7, at 183-84.
9. See supra note 7, at 183-84; see also Francis M. Hamilton HI, Should 'Clean
Hands' Protect the Government Against 2515 Suppression Under Title III of the Omni-
bus Crime Control and Safe Streets Act of 1968? 53 WASH. & LEE L. REv. 1473, 1476-
79 (1996).
10. See Thomas R. Greenberg, Email and Voicemail: Employee Privacy and the
Federal Wiretap Statute, 44 AM. U. L. REv. 219, 231 (1994). For example, it was uncer-
tain if "private" cellular phone calls were protected by the Act. John R. Kresse, Privacy
of ConversationsOver Cordless and Cellular Telephones: FederalProtection Under the
Electronic Communications Privacy Act of 1986, 9 GEO. MASON U. L. REv. 335, 337
(1987).
11. See Greenburg, supra note 10, at 232.
12. 18 U.S.C. 2510(12) (2001).
2002] BARTNICKI v. VOPPER
32. LAWRENCE TRIBE, AMERICAN CONSTnUTIONAL LAW, 794. (2d ed. 1988).
33. See id.
34. See Bartnicki, 53 U.S. at 525-26.
35. TRIBE, supra note 32, at 799 (quoting from Perry Educ. Ass'n v. Perry Local
Educators' Ass'n, 460 U.S. 37, 45 (1983)).
36. Id. at 791.
37. See TRIBE, supra note 32, at 798 n.17 (intermediate scrutiny is appropriate when
the government is regulating the speech regardlessof the content).
38. See, e.g., Schneider v. State, 308 U.S. 147 (1939) (purpose of keeping streets
clean is insufficient grounds for prohibiting public distribution of handbills).
39. See Bartnicki, 53 U.S. at 543-45 (Rehnquist, C.J., dissenting).
40. TRIBE, supra note 32, at 791.
41. See id. at 825-32.
42. Professor Tribe vehemently criticizes the speech/action distinction as having no
analytical substance, and being impossible for the Court to ever clearly define. Id. at 830.
BERKELEY TECHNOLOGY LAW JOURNAL [Vol. 17:449
tion." 65 The Florida newspaper had obtained and published a rape victim's
name from the police as a result of an administrative error. 66 The Court,
applying the same strict scrutiny standard and rationale as in Daily Mail,
held that a flat prohibition on publishing such information was unconstitu-
tional because it was not a narrowly tailored
67
means of achieving the state's
interest in protecting the rape victims.
3. The Holding of Bartnicki
The Court found the anti-wiretapping statutes unconstitutional because
the state's asserted interests in enforcing the statutes did not sufficiently
justify the prohibitions against free speech. 68 First, the Court was uncon-
vinced that applying the anti-wiretapping sanctions against publishers in-
nocent of the wiretapping would deter the unlawful conduct by the party
that actually intercepted the communication. 6 9 The punishment is too re-
mote to the offending eavesdropper. Furthermore, the Court found no
empirical evidence that the statute had actually deterred illegal wiretap-
ping. 71 Second, although the Court acknowledged that privacy is an impor-
tant interest, it declared that privacy concerns may give way to a compel-
ling public interest in the illegally acquired information. 72 This is sup-
ported by the Daily Mail principle, as well as by an implicit belief that
public figures, even limited public
73
figures as in Bartnicki, are subject to a
higher level of public interest.
Under Bartnicki, when a publisher has obtained an illegal communica-
tion in a manner lawful in itself, but from a source who has obtained it
unlawfully, the government may not punish the ensuing publication of that
information based on a defect in the chain.74 The Bartnicki Court limited
its holding in four ways: (1) the publisher must have played no part in in-
tercepting the conversation; (2) the publisher must have acquired the in-
formation lawfully; (3) the published information must concern a matter of
public concern; and (4) the information must be truthful.7 5 In a strongly
worded concurring opinion, Justice Breyer agreed with the majority's
limitations, but narrowed the holding even further.
76
74. Id. at 527 (quoting from Boehner v. McDermott, 191 F.3d 463, 484-85 (1999)
(Sentelle, J., dissenting)).
75. Id. at 525-28.
76. See id. at 540-42 (Breyer, J. concurring).
77. Id. at 535-36 (Breyer, J. concurring), 541 (Rehnquist, C.J., dissenting).
78. Id. at 537 (Breyer, J., concurring).
79. See id.
80. Id. at 544 (Rehnquist, C.J., dissenting).
81. Id. at 541-46 (Rehnquist, C.J., dissenting).
82. Id. The third point (censorship of the media) arguably does not distinguish the
Daily Mail cases from Bartnicki, as it was also about censorship of the media.
Rehnquist's point may be a more sophisticated argument about scienter. The anti-wiretap
laws of Bartnicki only circumscribes a publisher when she is aware that the information
was illegally acquired. Thus, it is not absolute censorship, as in the Daily Mail cases, but
it is qualified censorship.
BERKELEY TECHNOLOGY LAW JOURNAL [Vol. 17:449
III. ANALYSIS
This section of the paper will argue that Bartnicki'sidecision is limited
utility for a variety of reasons. First, Bartnicki gives only minimal guid-
ance to lawmakers and courts. Two key terms in the Bartnicki holding are
left undefined: the class of information that is of "public concern" and the
type of "publication" justifying First Amendment protection. Second, the
Bartnicki Court intentionally restricted the scope of the holding. Bartnicki
could have broadly extended First Amendment protection to all down-
stream publishers of protected information. For example, trade secrets are
protected by statutes that are quite similar in scope and language to the
anti-wiretapping statutes found unconstitutional by Bartnicki.
Finally, the Bartnicki decision is fragile because the Court fails to ade-
quately justify its choice of strict scrutiny and because Justices Breyer's
concurrence narrowly recasts the holding. Bartnicki rests on unstable
ground in the current political climate calling for increased media ac-
countability. Taken together, the ambiguity, limited scope, and fragility of
the Bartnicki decision result in a holding that is of questionable long-term
utility to courts and lawmakers.
A. What constitutes "public concern," and who is a publisher
under Bartnicki?
Bartnicki may give First Amendment protection to a publisher who
played no part in illegally acquiring information if the published informa-
86. Id. at 533-34. (reserving the question of whether "trade secrets" or pure "gossip"
are matters of significant enough concern to merit first amendment protection).
87. See generally William E. Lee, The Usual Suspects: Journalistsas Thieves, 8
WM.& MARY BiLL RTS. J. 53 (1999) (describing newsworthy and public speech); Justin
H. Wertman, The Newsworthiness Requirement of the Privilege of Neutral Reportage is a
Matter of Public Concern, 65 FORDHAM L. REv. 789 (1996) (discussing constitutional
classifications of speech).
88. See Bartnicki, 53 U.S. at 542 (Rehnquist, C.J., dissenting).
89. See id. at 545 (Rehnquist, C.J., dissenting).
90. Id. at 536 (Breyer, J., concurring).
91. See id. at 537-38 (Breyer, J., concurring). Breyer's definition of "public con-
cern" is much more restrictive than a "newsworthy" test for speech of "public concern."
92. See id. The strong wording of Breyer's concurring opinion on this matter is
noteworthy. The outcome of Bartnicki might have been much different had Stevens been
more explicit in defining "public concern" more broadly.
BERKELEY TECHNOLOGY LAW JOURNAL [Vol. 17:449
99. Bartnicki, 53 U.S. at 525 n.8. It is interesting to speculate on Yocum's status had
his communication in Bartnicki not led to publication. (Indeed, this was almost the case,
as Vopper waited months until broadcasting the intercepted conversation.) Although
widespread publication might not have occurred, Yocum did immediately play the tape
for the other school board members (the ones "threatened" in the tape). Is this an ade-
quate "publication" (particularly in light of the fact that the target audience was the public
most likely to be interested in the illegal information)?
100. Paul M. Smith and Nory Miller, When can the Courts Penalize the Press Based
on Newsgathering Misconduct? 19 COMM. LAW. 1, 29 (2001).
101. See Dick Morris, Symposium: Democracy and the Internet, 34 LOY. L.A. L.
REv. 1033, 1033 (2001).
102. Web "publications" act and look like traditional media, and often serve the same
functions of informing and entertaining. See generally Robert M. O'Neil, The Drudge
Case: A look At Cyberspace Defamation, 73 WASH. L. REv. 623 (1998) (questioning
legal ramifications of online publishing). But applying the "special" press privileges to
web pages raises concerns about eroding the right to privacy. When each citizen can be
his own "press," it is conceivable that First Amendment protections like the Daily Mail
principle and the Bartnicki holding will swallow the right to privacy. See Floyd Abrams,
BERKELEY TECHNOLOGY LAW JOURNAL [Vol. 17:449
Transcriptof the 1999-2000 Oliver Wendell Holmes Lecturer, 51 MERCER L. REv. 833,
843-845 (2000) (observing that expanding "press" privileges to internet publishers could
(ironically) lead to a restriction of the First Amendment protections of the press, thereby
inflicting serious harm to the public). Although the Bartnicki decision has been heralded
as a victory for media advocates, there are serious questions about its effectiveness. See,
e.g., Tony Mauro, Defining the Limits; Supreme Court to Rule on Broadcast of Illegally
Taped Conversations,THE QuILL, September 1, 2000, at 73.
103. As mentioned infra, the Dissent clearly disagrees with this logic, holding that
Bartnicki is clearly distinguishable from the Daily Mail line of cases. The dissent holds a
different view of the Daily Mail principle, and distinguishes Bartnicki on factual differ-
ence from the general fact of the Daily Mail line of cases. Ultimately, the Majority fo-
cuses on the more general principles involved. For example, a publisher is punished un-
der state statue for publishing protected information. The Dissent declines to make this
generalization. See Bartnicki, 53 U.S. at 545-46 (Rehnquist, C.J., dissenting).
104. Bartnicki, 53 U.S. at 529. Even this broad holding could have been modified by
a requirement that the information be both truthful and "of public concern" or "public
interest."
105. Prior to the Bartnicki decision, there was some speculation that the court's hold-
ing could dramatically expand the Daily Mail principle, perhaps by protecting the publi-
cation of all truthful information, regardless of its origin. Mauro, supra note 102, at 73.
20021 BARTNICKI v. VOPPER
gal. For example, the California version of the Uniform Trade Secret Act,
like the anti-wiretapping act, prohibits the disclosure of trade secret infor-
mation by a third party who "knew or had reason to know" that the infor-
mation was illegally acquired. 10 6 Like the anti-wiretapping statute, the
trade secret statute prohibits the publication of information that was ille-
gally acquired even by otherwise innocent parties. 10 7 However, the Bart-
nicki Court explicitly set aside the issue of trade secrets. 10 8 Thus, Bartnicki
was inapplicable in a recent California
10 9
appellate trade secret case, DVD
Copy Control Ass'n v. Bunner.
106. Uniform Trade Secret Act of the California Civil Code 3426.1 (b) defines
"misappropriation" as "Disclosure or use of a trade secret of another without express or
implied consent by a person who... (B) At the time of disclosure... knew or had reason
to know that his or her knowledge of the trade secret was: (i) Derived from or though a
person who had utilized improper means to acquire it... " 5 CAL. Civ. CODE 3426.1
(2001).
107. The anti-wiretapping statutes prevent disclosure of information from one who
"know[s] or ha[s] reason to know that the information was obtained" illegally (through
interception). 18 U.S.C. 251 l(l)(c) (2001).
108. Bartnicki, 53 U.S. at 533 ("We need not decide whether that interest is strong
enough to justify the application of [the anti-wiretap statute] to disclosures of trade se-
crets...").
109. DVD Copy Control Ass'n v. Bunner, 93 Cal. App. 4th 648 n.7 (Cal. Ct. App.
2001) (finding that the Bartnicki was not applicable both because the Court in Bartnicki
expressly declined to consider trade secret information and because Bartnicki was not a
trade secret case).
110. See Bartnicki, 53 U.S. at 543-44 (Rehnquist, C.J., dissenting).
111. Id. at 525-26.
112. Id. at 544-45 (Rehnquist, C.J., dissenting).
113. This is never explicitly stated in Bartnicki. After holding that Bartnicki fit with
the Daily Mail line of cases, the Court immediately applied strict scrutiny to Bartnicki
BERKELEY TECHNOLOGY LAW JOURNAL [Vol. 17:449
114
questions remain about the appropriateness of this categorization.
Moreover,15the application of strict scrutiny in Bartnicki was arguably dis-
positive. 1
Second, the concurring justices only conditionally agreed with the ma-
jority. Breyer and O'Connor's two votes were critical in achieving the ma-
jority. Had the majority opinion more explicitly embraced a broader defi-
nition of public concern, it seems likely that Breyer and O'Connor would
have joined the dissent, and Rehnquist's opinion would have carried the
Bartnicki decision.'16
Finally, political and public opinion may be against First Amendment
protection for the press. In the years immediately following the Watergate
scandal, the public and political climate favored strengthening the rights of
the press and making government less "opaque." ' 117 This is the atmosphere
that helped engender the Daily Mail principle. In recent years, however,
this trend has been subsiding. 119 Following the September 11, 2001 terror-
ist attacks on the Pentagon and the World Trade Center, public supvort for
limiting the access and the immunity of the press has increased. 0 Con-
gress and the Executive Branch appear to be responding. For example, on
October 26, 2001, the President signed into law a comprehensive anti-
terrorism bill (USA Patriot Act of 2001) that includes provisions for in-
creased governmental wiretapping and heightened penalties for security
despite acknowledging that the anti-wiretapping statues were content-neutral. Id. at 525-
26 and n.9.
114. See id. at 543-47 (Rehnquist, C.J., dissenting).
115. Certainly the dissent found it dispositive. Id. at 544-45 (Rehnquist, C.J., dissent-
ing)
116. Indeed, it has been suggested that Stevens' published opinion was modified to
accommodate Justices O'Connor and Breyer. This may be why Stevens's opinion does
not explicitly state his standard of review (justifying strict scrutiny) as well as the uncer-
tainty in describing "public interest." Cynthia Cotts, Supremes Secretly Stiff the Press,
THE VILLAGE VOICE, June 12, 2001, at Nation 31.
117. See Cotts, supra note 116, at Nation 31; Symposium, Undercover Newsgather-
ing Techniques: Issues and Concerns: Media Misbehavior and the Wages of Sin: The
Constitutionality of Consequential Damagesfor Publicationof Ill-Gotten Information, 4
WM. & MARY BILL OFRTS. J.1111 (1996) (discussing the role of the media in the pubic
realm).
118. See generally Sheinkopf, supra note 63 (examining legislative restrictions on
speech and the public record).
119. Cotts, supra note 116, at Nation 31.
120. See, e.g., James R. Lorence, Editorial, Public Pulse: CNN Crosses line, OMAHA
WORLD-HERALD, October 22, 2001 Sunrise edition at 6B; Jeff Zeleny, Print Media
Asked to Edit bin Laden, CHI.TRIB., October 12, 2001, at N2; Carolyn I. Jones, Letters to
the Editor, Press Was Irresponsible to Report Bush's Location, THE COLUMBUS DIS-
PATCH, September 28, 2001, at 10A.
20021 BARTNICKI v. VOPPER
IV. CONCLUSION
Bartnicki provides that publishers who knowingly publish illegally in-
tercepted communications, where they had no part in the interception,
might be protected under the First Amendment so long as the published
information is of significant public concern. However, this holding is
likely to be of only limited value. The Bartnicki holding is vague and dif-
ficult to apply since the critical tests for "information of public concern"
and "publication" are undefined. Moreover, although Bartnicki is an ex-
tension of the Daily Mail principle, the Court deliberately limited the
scope of the holding. Bartnicki's ultimate usefulness is limited because the
vagueness of the holding invites future challenges likely to result in an
even more restricted holding.