PART II
Wiretapping and tape recording
The law regarding journalists recording conversations in which they participate is generally clear; federal law requires at least one party to consent to the recording. Most states have adopted laws based on the federal statute and require only one party to consent. If a reporter is interviewing a source, then, the reporter has consented to the taping and is not required to notify the source, although many reporters do so out of ethical considerations or just “to be on the safe side” if they’re unsure of the applicable state law. But in 12 states, all parties must agree to the taping. Those 12 states are California, Connecticut, Florida, Illinois, Maryland, Massachusetts, Michigan, Montana, Nevada, New Hampshire, Pennsylvania and Washington. All states and the federal government have laws against recording a third party’s conversation where there is a reasonable expectation of privacy, whether the conversation takes place over regular telephone lines or cellular telephones. REAPING ILLEGAL BENEFITS
Occasionally, a third party will access a conversation illegally and tape-record it, then release the recording to the media. The Supreme Court this spring dealt with a case in which reporters were not involved in the taping, but were sued under the federal wiretapping law for disseminating the information on the recording. Bartnicki vs. Vopper helped delineate a media organization’s responsibility regarding publication or broadcast of illegal recordings made by someone outside the news organization. Notably, it is also the first major Supreme Court decision relating to the media in about a decade – and, again, it addresses how journalists get their information, not the content of what they publish. In the case, a radio commentator, Fred Vopper, received a recording of a cellular telephone conversation between a teachers union negotiator and the union president. The union had been involved in difficult bargaining discussions with the local school board and the negotiations had been an issue of great controversy and discussion in the community. Vopper did not know who intercepted the conversation and made the tape; he received it from the head of a local taxpayers organization opposed to the union’s demands. That man said he found the tape in his mailbox shortly after it was made. Among the excerpts Vopper played on his radio show were comments by the union president that if the school board didn’t accede to their demands, “We’re gonna have to go to their, their homes … to blow off their front porches.” Bartnicki, the union negotiator, sued Vopper and other media representatives, citing Pennsylvania and federal laws. Vopper also was prosecuted by the government under the federal Omnibus Crime Control and Safe Streets Act of 1968, which prohibits the interception of wire, electronic, and oral communications and which allows civil or criminal sanctions for violations. The section of the act that related to Vopper applies to anyone who discloses the contents of an illegally intercepted communication if he knew or had reason to know it had been illegally intercepted. The trial court rejected Vopper’s First Amendment defense, but the 3rd Circuit reversed and said the statutes infringed Vopper’s free speech rights. The Supreme Court affirmed that decision, holding that although the media generally aren’t free from prosecution under content-neutral laws, the specific provision of the wiretapping act posed an undue burden on free speech when publication was punished even though an unknown person actually made the illegal recording. The court was careful to limit its holding by three criteria: 1) the media played no role in the illegal interception, 2) the media received the information lawfully, and 3) the issue was a matter of public concern. The Court emphasized the importance of the law’s purpose, which was to protect the privacy of communications and to dissuade illegal interceptions, and said it could find no justification for punishing an innocent third party who played no role in the interception. Justice John Paul Stevens, writing for the majority, said the Court tailored its holding as narrowly as it did because the Court refuses “to answer categorically whether truthful publication may ever be punished consistent with the First Amendment.” Sanford, of Baker & Hostetler, said the significance of the case isn’t necessarily in what it did (protect a media person who was innocent in the taping) but for what it didn’t do – establish a “wholesale shutting-down of the right to receive stolen property and use the fruits of stolen property in newsgathering.” He added that he believes Bartnicki won’t stand as a significant precedent because its holding is confined closely to the facts of the case and said he expects the case will become a “quaint curiosity of constitutional law – a dinosaur case.” The Bartnicki dissent, written by Chief Justice William Rehnquist with Justices Antonin Scalia and Clarence Thomas joining, argued that the interest in protecting cell phone and electronic privacy is greater than the interest of the media in disseminating information to the public. They said the ruling actually diminished the First Amendment because it chilled “free speech” between individuals who use electronic technology, while protecting journalists’ rights to publish truthful information about an issue of public interest that they obtained lawfully.
UNANSWERED QUESTIONS
Despite its narrow holding, the Court’s decision in Bartnicki may provide guidance in two pending cases. In Boehner vs. McDermott, news organizations received copies of an intercepted conference call among leading Republican members of Congress regarding an investigation of former Speaker of the House Newt Gingrich. The call had been recorded by a Florida couple with a police scanner when one of the parties in the conversation, Rep. John Boehner, R-Ohio, was driving through Florida. The couple met with a Democratic congresswoman who suggested they give the tape to Rep. James McDermott, D-Wash., who served on the House Ethics Committee that was investigating Gingrich. McDermott then distributed the tapes to news organizations. The news organization that had received the tapes – Atlanta Journal-Constitution, Roll Call and The New York Times – were not charged with criminal wiretapping or sued civilly. But the couple who recorded the conversation pleaded guilty to criminal charges and were each fined $500. Boehner filed a civil suit against McDermott for disclosing the intercepted information under the same wiretapping act that Vopper was alleged to have violated in the teachers’ union dispute. McDermott raised a First Amendment defense, claiming that his distribution to the news organizations amounted to “publishing” and was protected by freedom of speech. Stating that the statute is not content-specific and imposes only an incidental burden on speech, the District of Columbia Circuit seemed to endorse in 1999 the viewpoint that turned up two years later in the Rehnquist dissent in Bartnicki. Judge Randolph wrote the statute “promotes the freedom of speech” because “eavesdroppers destroy the privacy of conversations. The greater the threat of intrusion, the greater inhibition on candid exchanges.” The Supreme Court, which had granted certiorari in Boehner to consider the question of whether the wiretapping statute violated the First Amendment, sent that case back to the appellate court to reconsider in light of its decision in Bartnicki. It is possible that McDermott’s lack of involvement in the recording of Gingrich’s conversation will ultimately convince the D.C. Circuit that he cannot be held civilly liable, especially given the high degree of public interest in the topic. In the second pending case related to illegal wiretapping, a news organization, WFAA-TV in Dallas, was much more involved than either Vopper or McDermott in the illegal interception; it knew that telephone conversations were being recorded and advised the person who was doing the recording how to go about it. Cordless telephone conversations of Carter Dan Peavy, who served as trustee to the Dallas Independent School District, were picked up on a scanner by his neighbors, Charles and Wilma Harman. The relationship between the Harmans and the Peavys had been contentious, and when the Harmans heard what they believed to be evidence of corruption by Peavy, they contacted WFAA-TV. Robert Riggs, a reporter at the station, went to their home and, after hearing one of the tapes, told the Harmans he was interested in the information. He advised them not to turn the tape recorder on or off or to edit the tapes so their authenticity couldn’t be challenged. Eventually, Charles Harman gave Riggs 18 tapes with 188 telephone conversations between the Peavys and others. After Riggs learned that the criminal wiretapping statute had been amended and that his actions could be illegal, he returned all his tapes and transcripts of the conversations to Harman. As a result of additional reporting and without using the illegally obtained tape recordings, Riggs broadcast stories of alleged wrongdoing by Peavy, who eventually was tried and acquitted of bribery. The 5th Circuit held that the First Amendment did not preclude liability by the media defendants and focused on the role that Riggs and WFAA had in Harman’s creation of the tapes. The court phrased the issue as: “whether … the First Amendment is violated by the federal and Texas acts, as applied to the use and disclosure of illegally intercepted communications by persons who … did not themselves make the interceptions; but who did have undisputed participation concerning the interceptions to the extent defendants did.” The court held that the federal and state laws that banned using or disclosing illegally intercepted communications did not impinge free speech unnecessarily. Judge Rhesa Hawkins Barksdale wrote that the “incidental burdens on free expression are no greater than is essential to the furtherance” of “substantial governmental interests in protecting the confidentiality of private communications.” As the Supreme Court refused to review the finding, that case also has been sent back to the trial court to be reviewed in light of Judge Barksdale’s opinion and the holding in Bartnicki. The Boehner court explained in a footnote that the connection between the couple and McDermott was direct, as was the connection between Harman and Riggs in Peavy. The D.C. Circuit declined to address whether “someone further down the chain” could successfully claim immunity from illegal activity at the beginning of the chain. A LIABILITY SPECTRUM
These three cases – Bartnicki, Boehner and Peavy – represent a spectrum on which the involvement of the person claiming First Amendment protection varies. In Bartnicki, the tape was made completely independently of the radio station and was given to Vopper without his solicitation. In Boehner, McDermott did not advise the owners of the tape, but distributed it himself after it was made. In Peavy, WFAA and Riggs advised Harman about how to record the information and then took possession of it. Although Boehner and Peavy remain unresolved, it seems clear that the closer journalists get to the end of the spectrum representing involvement in the illegal recording, the more likely they won’t be protected by the reasoning in Bartnicki. It is important to note that both Bartnicki and Boehner emphasize that a news organization or a source can be prosecuted for engaging in illegal activity such as stealing documents or illegal wiretapping. If the guilty party in the Bartnicki case were identified, nothing in the Supreme Court’s decision would preclude that person from facing charges. Also, the Martins, who intercepted Boehner’s cell phone conversation in Florida, were prosecuted and fined for illegal wiretapping. What does this mean for journalists who receive information from sources without knowing the origin of the material and without being involved in the illegal activity? If Bartnicki were to have wider applicability, it would seem to indicate that liability will not be imposed – as long as the news organization is blameless in the intercept and as long as the subject matter is of great public interest. But who decides what is an issue of public interest? A jury? A judge? A news organization? In the invasion of privacy context, a judge has answered the question of whether an issue passes the public interest threshold as a matter of law. The California Supreme Court, for example, lists a number of factors to determine “newsworthiness” for purposes of defending against the tort of invasion of privacy by publication of private facts: “social value of the facts published, depth of the article’s intrusion into ostensibly private affairs, and the extent to which the party voluntarily acceded to a position of public notoriety.” The court added that “a publication is newsworthy if some reasonable members of the community could entertain a legitimate interest in it.” The California court also grants “considerable deference to reporters and editors, avoiding the likelihood of unconstitutional interference with the freedom of the press to report truthfully on matters of legitimate public interest.” Therefore, in a somewhat counter-intuitive analysis, if a news organization is interested in distributing information on a topic to the public, then it’s generally considered a topic of public interest. For those media critics who object to what they see as “voyeurism” or intrusiveness of the media, that answer often is unsatisfactory. The California court stated in Shulman vs. Group W. Prods., “No constitutional precedent or principle of which we are aware gives a reporter general license to intrude in an objectively offensive manner into private places, conversations or matters merely because the reporter thinks he or she may thereby find something that will warrant publication or broadcast.” This raises the possible specter of a court regulating news content. But generally, content of the material at issue is not within the court’s realm, with very rare exceptions. Sanford of Baker & Hostetler says the fear of courts trying to extend those content borders within which it may act is likely to be unrealized. “The courts have traditionally defined public interest very broadly,” he said. “Even in cases where you might be tempted to say that’s gossip or salacious, usually our worst fears are not realized.” He cautioned, however, that the broad definition does not give blanket assurance to media that “public interest” will be defined in their favor in the event of some case in which the media steps far beyond the bounds of intrusiveness. Sanford advocates an open dialogue among media, policymakers and the legal community about how to define the zone of privacy. “We have to decide whether technology increases the zone of privacy or shrinks it,” he said, cautioning that the privacy debate in the political arena has pandered to what may be unreasonable fear fed by activists who lobby Congress with tales of horrid examples. Part III
