Tags: Free | Speech | Trumps | Wiretap | Law | Supreme | Court

Free Speech Trumps Wiretap Law, Supreme Court Rules

Monday, 21 May 2001 12:00 AM

The protection extends even when the publisher or broadcaster knows that someone else illegally intercepted the communication to obtain the information, as long as that information is of "public concern."

The ruling came in cases involving an intercepted telephone call in Pennsylvania.

"These cases raise an important question concerning what degree of protection, if any, the First Amendment provides to speech that discloses the contents of an illegally intercepted communication," Justice John Paul Stevens said, writing for the majority. "That question is both novel and narrow. Despite the fact that federal law has prohibited such disclosures since 1934, this is the first time that we have confronted such an issue."

Citing 1964's New York Times vs. Sullivan and other Supreme Court precedents protecting freedom of expression when speech involves public issues, Stevens said the United States had a "profound national commitment to the principle that debate on public issues should be uninhibited, robust and wide-open."

Using those precedents, Stevens said, the court majority came to the conclusion "that a stranger's illegal conduct," the intercept, "does not suffice to remove the First Amendment's shield from speech about a matter of public concern."

Stevens was absent from the bench, and his opinion was ready by Justice Sandra Day O'Connor.

Chief Justice William Rehnquist, joined by conservative Justices Antonin Scalia and Clarence Thomas, dissented.

"Technology now permits millions of important and confidential conversations to occur through a vast system of electronic networks," Rehnquist said. "These advances, however, raise significant privacy concerns. We are placed in the uncomfortable position of not knowing who might have access to our personal and business e-mails, our medical and financial records, or our cordless and cellular telephone conversations."

The federal government, 40 states and the District of Columbia have enacted laws prohibiting the interception and knowing disclosure of electronic communications. Rehnquist pointed out that the court majority invalidated all of these laws when the disclosed information "touches upon a matter of 'public concern.'"

The facts in the underlying cases are simple.

In May 1993, Gloria Bartnicki was the chief negotiator for a Pennsylvania teachers union. Anthony Kane, a teacher at Wyoming Valley West High School outside of Wilkes-Barre, was the union's president.

The two were having a confidential conversation, Kane on his home phone, Bartnicki on her car cell phone, when an unknown person intercepted the call, recorded it and passed it on to Jack Yocum, the president of a taxpayers association that was formed to oppose the teachers union's demands.

According to court records, Yocum passed on the tape to the host of a radio talk show, broadcast on WILK in Wilkes-Barre and WGBI in Scranton, much to the surprise of Bartnicki and Kane, who didn't know their conversation was recorded.

The two sued Yocum, talk show host Frederick Vopper ("Fred Williams" on the air) and the radio stations under federal and state laws. Eventually, a federal appeals court panel reversed a judge's refusal to grant summary judgment to the defendants.

By a 2-1 vote, the panel said the state and federal bans do not pass First Amendment muster when they are applied to those who neither participated in, nor encouraged the illegal interception.

The full 3rd U.S. Circuit Court of Appeals refused to rehear the case, and Bartnicki, Kane and the Justice Department asked the Supreme Court to review the lower rulings. The justices heard argument last December.

Monday's ruling upholds the lower court decisions.

(No. 98-1687, Bartnicki and Kane vs. Vopper et al; and USA vs. Vopper et al)

Copyright 2001 by United Press International.

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The protection extends even when the publisher or broadcaster knows that someone else illegally intercepted the communication to obtain the information, as long as that information is of public concern. The ruling came in cases involving an intercepted telephone call...
Free,Speech,Trumps,Wiretap,Law,,Supreme,Court,Rules
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2001-00-21
Monday, 21 May 2001 12:00 AM
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