No. 99-1728
In the Supreme Court of the United States
UNITED STATES OF AMERICA, PETITIONER
v.
FREDERICK W. VOPPER, ET AL.
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
PETITION FOR A WRIT OF CERTIORARI
SETH P. WAXMAN
Solicitor General
Counsel of Record
DAVID W. OGDEN
Acting Assistant Attorney
General
MICHAEL DREEBEN
Deputy Solicitor General
JEFFREY A. LAMKEN
Assistant to the Solicitor
General
DOUGLAS N. LETTER
SCOTT R. MCINTOSH
Attorneys
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217
QUESTION PRESENTED
Whether the imposition of civil liability under 18 U.S.C. 2511(1)(c) and
(d) for using or disclosing the contents of illegally intercepted communications,
where the defendant knows or has reason to know that the interception was
unlawful but is not alleged to have participated in or encouraged it, violates
the First Amendment to the United States Constitution.
PARTIES TO THE PROCEEDINGS BELOW
Petitioner United States of America appeared as an intervenor of right in
the court of appeals pursuant to 28 U.S.C. 2403(a). Respondents Frederick
W. Vopper, a/k/a Fred Williams; Keymarket of NEPA, Inc., d/b/a WILK Radio;
Lackazerne, Inc., d/b/a WGBI Radio; and Jack Yocum were defendants in the
district court and appellants in the court of appeals. Petitioners Gloria
Bartnicki and Anthony F. Kane, Jr., were plaintiffs in the district court
and appellees in the court of appeals.
In the Supreme Court of the United States
No. 99-1728
UNITED STATES OF AMERICA, PETITIONER
v.
FREDERICK W. VOPPER, ET AL.
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
PETITION FOR A WRIT OF CERTIORARI
The Solicitor General, on behalf of the United States of America, petitions
for a writ of certiorari to review the judgment of the United States Court
of Appeals for the Third Circuit in this case.
OPINIONS BELOW
The opinion of the court of appeals (App., infra, 1a-58a) is reported at
200 F.3d 109. The opinions and orders of the district court (App., infra,
59a-68a, 69a, 70a-74a, 75a-76a) are unreported.
JURISDICTION
The judgment of the court of appeals was entered on December 27, 1999. The
petitions for rehearing were denied on February 25, 2000 (App., infra, 82a-83a).
The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).
CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED
The First Amendment to the United States Constitution and the relevant provisions
of Title III of the Omnibus Crime Control and Safe Streets Act of 1968,
as amended, 18 U.S.C. 2510 et seq., are set forth in the Appendix at App.,
infra, 84a-91a.
STATEMENT
1. Title III of the Omnibus Crime Control and Safe Streets Act of 1968,
as amended, 18 U.S.C. 2510 et seq. (Title III), is a "comprehensive
scheme for the regulation of wiretapping and electronic surveillance,"
Gelbard v. United States, 408 U.S. 41, 46 (1972), and is designed to "protect
effectively the privacy of wire and oral communications." Pub. L. No.
90-351, Tit. III,
§ 801(b), 82 Stat. 211 (Congressional findings). See also S. Rep. No.
1097, 90th Cong., 2d Sess. 66 (1968) (1968 Senate Report); Gelbard, 408
U.S. at 48.
a. Consistent with that goal, Title III broadly prohibits the interception
of wire, oral, and electronic communications except where authorized under
Title III itself. 18 U.S.C. 2511(1)(a). It also sets forth the procedures
that must be employed, and the substantive criteria that must be met, before
a wiretap or other form of electronic surveillance may be authorized under
Title III. 18 U.S.C. 2516, 2518 (1994 & Supp. IV 1998). See also 18
U.S.C. 2511(2).
As enacted in 1968, Title III applied only to wire and oral communications.
See Tit. III, § 802, 82 Stat. 212. In 1986, however, Congress amended
Title III to cover the electronic transmission of non-voice data such as
electronic mail and other Internet communications, see 18 U.S.C. 2510(12)
(1994 & Supp. IV 1998), and to clarify that Title III extends to communications
on cellular and other wireless telephone systems, see 18 U.S.C. 2510(1).
See also Electronic Communications Privacy Act of 1986 (ECPA), Pub. L. No.
99-508, 100 Stat. 1848; S. Rep. No. 541, 99th Cong., 2d Sess. 1-3, 7-8,
11 (1986).1
b. Because the interception of communications is generally a surreptitious
and difficult-to-detect enterprise, the fact or source of such an invasion
"[a]ll too often * * * will go unknown." 1968 Senate Report 69;
see also id. at 96 ("[U]nlawful electronic surveillance is typically
a clandestine crime."). In part for that reason, Congress determined
that merely prohibiting unauthorized surveillance itself would not be sufficient.
Id. at 69. Instead, Congress concluded that "[o]nly by striking at
all aspects of the problem can privacy be adequately protected." Ibid.
Accordingly, Congress accompanied the prohibition on unauthorized interceptions
with restrictions on the use of the fruits of such invasions. 1968 Senate
Report 69. See, e.g., 18 U.S.C. 2515 (unlawfully intercepted communications
inadmissible as evidence). Section 2511(1)(c) makes it unlawful for any
person to "intentionally disclose[], or endeavor[] to disclose, to
any other person the contents of any wire, oral, or electronic communication"
if the person "know[s] or ha[s] reason to know" that it "was
obtained through the interception of a wire, oral, or electronic communication
in violation of this subsection." Section 2511(1)(d) makes it unlawful
for any person with the same knowledge or reason to know to "intentionally
use[], or endeavor[] to use, the contents of any wire, oral, or electronic
communication." Title III thus proscribes all unauthorized uses of
the contents of illegally intercepted communications, including but not
limited to their disclosure, by persons knowing or having reason to know
of their unlawful source.
Violations of Title III may be prosecuted as criminal offenses or result
in the imposition of civil fines. 18 U.S.C. 2511(4) and (5). Title III also
provides a private cause of action for any person whose communication is
intercepted, disclosed, or used in violation of the statute. 18 U.S.C. 2520(a).
In a civil action under Title III, a court may award such "relief as
may be appropriate," including declaratory and injunctive relief, compensatory
damages or prescribed statutory damages, and punitive damages "in appropriate
cases." 18 U.S.C. 2520(b) and (c).
2. This case arises out of the illegal interception of a private telephone
conversation between Gloria Bartnicki, the chief negotiator for a Pennsylvania
teachers union, and Anthony Kane, the union's president. The union was engaged
in contract negotiations with a local school board, and Bartnicki and Kane
held a confidential telephone conversation in which they discussed the status
of the negotiations. Bartnicki used a cellular telephone. App., infra, 3a.
An unknown person illegally intercepted the conversation, recorded it, and
anonymously delivered a copy of the recording to respondent Jack Yocum.
Yocum was president of a local taxpayers association formed for the purpose
of opposing the union's bargaining demands. App., infra, 3a. Yocum listened
to the recording, which contained inflammatory remarks regarding the school
board, and recognized the voices of Bartnicki and Kane. Ibid. He then gave
the recording to respondent Frederick Vopper, the host of a local radio
talk show. Id. at 3a-4a. Apparently, respondent Vopper retained the tape
for over a month, id. at 55a-56a n.6 (Pollak, J., dissenting), but eventually
played it on his program repeatedly, id. at 4a. That program was broadcast
by two local radio stations, respondent station WILK and respondent station
WGBI. Ibid.
Bartnicki and Kane brought a civil action in the United States District
Court for the Middle District of Pennsylvania against respondents Yocum
and Vopper, as well as the respondent radio stations, under Title III, 18
U.S.C. 2520, and a parallel provision of Pennsylvania law, 18 Pa. Cons.
Stat. Ann. §§ 5701 et seq. (West 1983). Bartnicki and Kane asserted
that respondents had disclosed and used the taped conversation, knowing
or having reason to know that it was intercepted unlawfully, in violation
of 18 U.S.C. 2511(1)(c) and (d), and in violation of corresponding provisions
of Pennsylvania law, 18 Pa. Cons. Stat. Ann. § 5725 (West 1983 &
Supp. 1999).
Respondents sought summary judgment, arguing that application of Title III
(and the Pennsylvania electronic eavesdropping statute) to their actions
would violate the First Amendment. They asserted that, where a private conversation
is illegally intercepted or recorded through electronic eavesdropping devices,
third parties have a constitutional right to disclose the contents of that
conversation if they were not responsible for the initial interception and
the conversation is deemed to involve matters of public significance. App.,
infra, 65a; see also id. at 74a. According to respondents, statutes that,
like Title III, impose liability for such disclosures are subject to strict
scrutiny and are invalid under the First Amendment as applied here. Id.
at 65a.
The district court denied the motion, holding, inter alia, that the application
of Title III to respondents does not violate the First Amendment. App.,
infra, 65a-67a, 74a. The district court later certified the First Amendment
issue for interlocutory appeal under 28 U.S.C. 1292(b), App., infra, 75a-76a,
and respondents filed a petition for interlocutory review, id. at 5a.
3. Following oral argument on respondents' interlocutory appeal, the court
of appeals notified the Attorney General that the constitutionality of the
application of 18 U.S.C. 2511(1)(c) and (d) to the facts of this case was
at issue and invited the United States to present its views. App., infra,
77a-79a; see 28 U.S.C. 2403(a).2 The United States intervened and filed
a brief to defend those provisions. App., infra, 5a.
A divided panel of the court of appeals reversed. App., infra, 1a-58a. The
court stated: "At issue is whether the First Amendment precludes imposition
of civil damages for the disclosure of portions of a tape recording of an
intercepted telephone conversation containing information of public significance
when the defendants * * * played no direct or indirect role in the interception."
Id. at 2a. The court of appeals agreed with the United States that 18 U.S.C.
2511(1)(c) and (d), and the corresponding provisions of Pennsylvania law,
are subject to intermediate rather than strict scrutiny. App., infra, 17a-28a.3
The court explained that, to the extent those provisions are designed to
reinforce the underlying prohibition on unauthorized interceptions, they
"are properly treated as content neutral." Id. at 28a. The court,
concluded, however, that those provisions do not satisfy intermediate scrutiny
when applied to "the use or disclosure of illegally intercepted information
where there is no allegation that the defendants participated in or encouraged
th[e] interception." Id. at 42a.
The court of appeals rejected the government's contention that Title III's
bar on the use and dissemination of illegally intercepted conversations
is necessary to diminish the demand for such materials. App., infra, 33a-36a.
"The connection between prohibiting third parties from using or disclosing"
such communications and "preventing the initial interception,"
the court of appeals stated, was too "indirect." Id. at 33a. The
government's interest in protecting privacy and ensuring public confidence,
the court of appeals found, "can be reached by enforcement of existing
provisions against the responsible parties rather than by imposing damages
on these defendants." Id. at 35a. Finally, the court expressed concern
that the media might be deterred from publishing material not obtained in
violation of Title III by the possibility of liability where the information's
origin is unclear. Id. at 36a.
Judge Pollak (Senior D.J., sitting by designation) dissented. App., infra,
42a-58a. Judge Pollak agreed with the majority's conclusion that intermediate
scrutiny is appropriate, but he "part[ed] company" with the majority
on the proper application of that standard to Title III. Id. at 47a (Pollak,
J., dissenting). He explained: "Unless disclosure is prohibited, there
will be an incentive for illegal interceptions; and unless disclosure is
prohibited, the damage caused by an unlawful interception will be compounded.
It is not enough to prohibit disclosure only by those who conduct the unlawful
eavesdropping." Id. at 50a-51a (quoting Boehner v. McDermott, 191 F.3d
463, 470 (D.C. Cir. 1999)). Judge Pollak concluded that the "First
Amendment values on which [respondents] take their stand are countered by
privacy values sought to be advanced by Congress and the Pennsylvania General
Assembly that are of comparable-indeed kindred-dimension." App., infra,
58a.
The United States and the plaintiffs filed petitions for rehearing en banc.
The court denied rehearing en banc by a 6-5 vote; Judges Greenberg, Scirica,
Nygaard, Alito, and Rendell would have granted rehearing en banc. App.,
infra, 82a-83a.
REASONS FOR GRANTING THE PETITION
The court of appeals has invalidated, as contrary to the First Amendment,
a significant application of Title III's "comprehensive scheme,"
Gelbard v. United States, 408 U.S. 41, 46 (1972), for protecting the privacy
of, and ensuring public confidence in the facilities used for, wire, oral,
and electronic communications. Under 18 U.S.C. 2511(1)(c) and (d), it is
unlawful for any person to use or disclose the contents of a communication
intercepted in violation of Title III, if that person knows or has reason
to know that the communication was intercepted unlawfully. The court of
appeals held those provisions unconstitutional as applied to anyone who
did not participate in or encourage the initial illegal interception if
the intercepted communication relates to a matter of public significance.
App., infra, 37a, 42a.
That conclusion is wrong. It is also inconsistent with the decision in Boehner
v. McDermott, 191 F.3d 463 (D.C. Cir. 1999), which rejected an almost indistinguishable
constitutional challenge. The Third Circuit's decision here, moreover, calls
into question the constitutionality of numerous state statutes that contain
prohibitions like those contained in Title III. And it undermines the comprehensive
scheme Congress established to ensure public confidence in the security
of private conversations. This Court's review is therefore warranted.4
1. The fundamental purpose of Title III is to protect the privacy of wire,
oral, and electronic communications. Title III's restriction on the use
of illegally intercepted communications, contained in 18 U.S.C. 2511(1)(c)
and (d), furthers that legislative goal in at least two ways. First, it
reinforces Title III's underlying prohibition on electronic surveillance,
18 U.S.C. 2511(1)(a). Because no one can lawfully disclose or otherwise
use a communication he knows to be the product of illegal wiretapping, there
can be no "market" for illegally intercepted communications. Title
III thus reduces the incentive to engage in unlawful wiretapping (and other
prohibited forms of electronic surveillance) in the first instance. See
Boehner, 191 F.3d at 469-470; Fultz v. Gilliam, 942 F.2d 396, 401 (6th Cir.
1991) (18 U.S.C. 2511(1)(c) and (d) "strengthen[s] [Section 2511(1)(a)]
by denying the wrongdoer the fruits of his conduct").
Second, when illegal surveillance does take place, the challenged provisions
protect against the additional injury that occurs when the contents of intercepted
communications are exploited by third parties. As this Court has observed,
an "invasion of privacy is [not] over and done with" when a communication
is intercepted, but instead is compounded when the communication is disclosed
or otherwise used without the permission of the parties to the conversation.
Gelbard, 408 U.S. at 51-52.
The use-and-disclosure prohibitions of Title III thus offer members of the
public the assurance that they can speak freely with one another through
private means -whether by telephone or in person in the privacy of their
homes-without having their confidential conversations disclosed or otherwise
exploited by unknown persons. The provisions thus further the fundamental
interest in "the free exchange of ideas enshrined in the First Amendment."
Harte-Hanks Communications, Inc. v. Connaughton, 491 U.S. 657, 686 (1989).
a. As the Third Circuit here and the District of Columbia Circuit in Boehner,
supra, both recognized, when Title III's restrictions are applied to the
disclosure of illegally intercepted communications by persons other than
the individuals who intercepted them, they are subject to intermediate rather
than strict scrutiny under the First Amendment. App., infra, 28a; Boehner,
191 F.3d at 467. Two features of Section 2511(1)(c) and (d) support that
conclusion. First, Title III does not single out speech or other expressive
activities, but rather establishes a general prohibition on the use of illegally
intercepted communications; that prohibition includes, but is not confined
to, expressive uses like disclosure. Boehner, 191 F.3d at 467-468. See United
States v. O'Brien, 391 U.S. 367 (1968).5 Second, Title III is content-neutral.
It does not predicate liability on "the[] content" of the intercepted
communications, "but instead [on] the process by which they are collected."
Lam Lek Chong v. United States DEA, 929 F.2d 729, 733 (D.C. Cir. 1991) (emphasis
added). Where a communication is acquired through illegal electronic surveillance,
Title III bars disclosure and other uses, regardless of subject matter or
viewpoint.
Title III's use prohibitions thus are not the product of the government's
"agreement or disagreement with the message" conveyed. Turner
Broad. Sys., Inc. v. FCC, 512 U.S. 622, 642-643 (1994) (brackets omitted).
Nor do they reflect a legislative desire to conceal from the public information
on particular subjects. Instead, because Title III contains "generally
applicable, content neutral prohibitions on conduct that create incidental
burdens on speech," Boehner, 191 F.3d at 467, it falls squarely within
the ambit of this Court's intermediate scrutiny precedents. See City of
Erie v. Pap's A.M., 120 S. Ct. 1382, 1391 (2000) ("If the governmental
purpose in enacting the regulation is unrelated to the suppression of expression,
then the regulation need only satisfy the 'less stringent' standard from
O'Brien," but "[i]f the government interest is related to the
content of the expression, * * * then the regulation falls outside the scope
of the O'Brien test."); Turner, 512 U.S. at 661 (provisions subject
to intermediate scrutiny where they "do not pose such inherent dangers
to free expression, or present such potential for censorship or manipulation,
as to justify application of the most exacting level of First Amendment
scrutiny").
Under the intermediate scrutiny framework of O'Brien, a statute's application
is constitutional if the statute "furthers an important or substantial
governmental interest; if the governmental interest is unrelated to the
suppression of free expression; and if the incidental restriction on alleged
First Amendment freedoms is no greater than is essential to the furtherance
of that interest." O'Brien, 391 U.S. at 377; Turner, 512 U.S. at 662.
Title III meets that test.6 Its underlying goal of protecting and maintaining
the confidentiality of wire, oral, and electronic communications is manifestly
legitimate and substantial, and unrelated to "the suppression of free
expression." See Boehner, 191 F.3d at 468. By barring the use of unlawfully
intercepted communications, Section 2511(1)(c) and (d) reinforces Title
III's prohibition on illicit surveillance and protects against the additional
injury that arises when illegally intercepted information is put to unauthorized
uses. 191 F.3d at 468-469. The statute thereby promotes free expression
by assuring individuals that the law will protect the confidentiality of
their private conversations. In addition, Title III's use restrictions are
not unnecessarily broad. They apply only to those who know or have reason
to know of the unlawful source. And only by comprehensively prohibiting
such uses of illegally intercepted communications can the interests served
by Title III be vindicated. 191 F.3d at 470; p. 3, supra (legislative findings).
b. The Third Circuit's rationale for concluding that Section 2511(1)(c)
and (d) fails intermediate scrutiny is unsound. That court believed that
the proposition that Title III's use-and-disclosure restrictions deter unlawful
interceptions, by curtailing the incentive to conduct them in the first
instance, is an "ipse dixit" that rests on "little more than
assertion and conjecture." App., infra, 33a-34a. But the same logic
has long been accepted as a justification for statutes that prohibit the
knowing possession and sale of stolen property. See, e.g., United States
v. Gardner, 516 F.2d 334, 349 (7th Cir.), cert. denied, 423 U.S. 861 (1975);
United States v. Bolin, 423 F.2d 834, 838 (9th Cir.), cert. denied, 398
U.S. 954 (1970). This Court itself relied on a similar rationale in New
York v. Ferber, 458 U.S. 747, 760 (1982), where it held that "[t]he
most expeditious if not the only practical method" of effectuating
a ban on the production of child pornography "may be to dry up the
market for this material" by imposing sanctions on possession, advertising,
and distribution.7 The court of appeals also erred in failing to take into
account the function of the use-and-disclosure ban in preventing aggravation
of the initial invasion of privacy. See Gelbard, 408 U.S. at 51-52. The
court apparently discounted that purpose because of its view that preventing
"the injury associated with the disclosure of private facts" is
an interest that would make the provisions at issue "subject to strict
scrutiny as a content-based regulation." App., infra, 27a. But the
use-or-disclosure ban protects the privacy of communications based on the
means by which they were unlawfully acquired; it contains no content criteria
at all.
The court of appeals likewise erred in its suggestion that the objectives
of the statute "can be reached by enforcement of existing provisions
against the responsible parties," i.e., by punishing only the persons
who engage in illegal wiretapping and electronic surveillance. App., infra,
35a. That is not a practicable option. By its very nature, electronic surveillance
is a surreptitious enterprise. One who employs unlawful wiretaps can effectively
insulate himself from liability by conveying the intercepted communication
to third parties anonymously. As the District of Columbia Circuit has pointed
out, criminals who bug residences, intercept and record private phone calls,
and engage in other forms of unlawful electronic surveillance "can
literally launder illegally intercepted information." Boehner, 191
F.3d at 471. In this very case neither the private plaintiffs nor the United
States can enforce Title III against the party responsible for the illegal
interception because that party is unknown. "[E]nforcement of existing
provisions against the responsible parties," App., infra, 35a, is therefore
insufficient to deter illegal surveillance. Instead, as Congress recognized
when it enacted Title III, "[o]nly by striking at all aspects of the
problem can privacy be adequately protected." 1968 Senate Report 69.
Accord Boehner, 191 F.3d at 471 (invalidation of Section 2511(1)(c) would
"render the government powerless to prevent disclosure of private information"
because criminals can both intercept and disclose communications anonymously).
The court of appeals expressed concern that the threat of liability under
Title III might deter the news media from disseminating the contents of
communications that were not illegally intercepted. App., infra, 36a-37a.
In light of Title III's scienter requirements, however, that "chilling"
concern is overstated. Liability attaches under 18 U.S.C. 2511(1)(c) and
(d) only when a defendant "know[s] or ha[s] reason to know" that
the communication was intercepted in violation of Title III. Thus, the recipient
who knows or ignores evidence that the proffered information was obtained
unlawfully may face liability; but the party without such knowledge or reason
to know does not-even if the communication in fact was illegally intercepted.8
2. The Third Circuit's decision in this case is inconsistent with the District
of Columbia Circuit's recent decision in Boehner, supra, which rejected
a virtually identical First Amendment challenge to the constitutionality
of 18 U.S.C. 2511(1)(c) and a parallel Florida statute. In Boehner, the
District of Columbia Circuit, like the Third Circuit in this case, subjected
Section 2511(1)(c) to intermediate scrutiny. 191 F.3d at 466-467. But, unlike
the Third Circuit, the District of Columbia Circuit concluded that Section
2511(1)(c) could constitutionally be applied to the non-media defendant
in that case, who had disclosed the contents of intercepted conversations
concerning matters of public interest, even though he did not participate
in the initial interception. See 191 F.3d at 467-470. See also id. at 480
(Ginsburg, J., concurring) ("I agree that the statute passes [intermediate
scrutiny] for the reasons given in the opinion for the Court.").
The court of appeals in this case attempted to distinguish Boehner, pointing
out that Boehner did not involve media defendants, whereas this case does.
App., infra, 40a; 191 F.3d at 407, 477-478 (reserving the issue of media
liability). That difference does not distinguish Boehner, however. As the
Third Circuit acknowledged, respondent Yocum in this case is not a media
defendant. To the contrary, he "technically * * * stands in the same position as" the defendant in Boehner, i.e.,
as a non-press defendant who served "as the source but not the interceptor."
App., infra, 40a. See also id. at 46a n.3 (Pollak, J., dissenting) (respondent
Yocum's role "seems analogous to that of" the Boehner defendant);
id. at 37a n.7 (Pollak, J., dissenting) (presence of media respondents in
this case does not enhance non-media respondent Yocum's rights). In any
event, the court in Boehner stated that "the press has no greater First
Amendment rights than anyone else." 191 F.3d at 477 n.20; accord, id.
at 483 (Sentelle, J. dissenting).
The Third Circuit also suggested that respondent Yokum was not similarly
situated to the individual defendant in Boehner because that defendant (Representative
James McDermott) may have been "more than an innocent conduit"
at the time he received the illegally recorded tape from those who conducted
the interception. App., infra, 40a. But neither individual defendant (Yokum
or McDermott) was alleged to have had "participated in or encouraged
that [unlawful] interception"-the Third Circuit's own criteria for
removing First Amendment protection (id. at 42a)-and both defendants were
alleged to have had knowledge or reason to know of the illegal interception
at the time of the challenged use or disclosure. There is thus no sound
basis in the facts of the two cases to justify their divergent outcomes.
Where, as here, courts of appeals have reached different conclusions regarding
the constitutionality of the application of an Act of Congress to materially
indistinguishable facts, this Court's intervention is warranted.
3. The court of appeals' decision addresses an important and unresolved
issue of constitutional law. This Court has never squarely decided "whether,
in cases where information has been acquired unlawfully by a newspaper or
by a source, government may ever punish not only the unlawful acquisition,
but the ensuing publication as well." Florida Star v. B.J.F., 491 U.S.
524, 535 n.8 (1989) (emphasis added); Boehner, 191 F.3d at 472-473 (Randolph,
J.) (explaining that the Court's cases "do not 'settle'" the issue);
App., infra, 13a-14a (similar). In Smith v. Daily Mail Publishing Co., 443
U.S. 97, 104 (1979), this Court did state that the application of statutes
to punish the disclosure of "lawfully obtained," truthful information
of public significance generally must be justified by a state interest of
the highest order. But in Florida Star, this Court clarified that Congress
and the States may, to protect the privacy of confidential information held
by private parties, "under some circumstances forbid its nonconsensual
acquisition, thereby bringing outside of the Daily Mail principle the publication
of any information so acquired." Florida Star, 491 U.S. at 534. The
challenged provisions of Title III do precisely that, i.e., they regulate
the use of unlawfully intercepted communications.
Where this Court has invalidated statutes barring the publication of truthful
information, the statutes not only extended to information that was "lawfully
obtained" in the first instance, but also targeted speech, on the basis
of its subject matter, in order to foreclose public knowledge of a particular
type of information. See, e.g., Florida Star, 491 U.S. at 534 (prohibition
on publication of the names of victims of sexual assault); Daily Mail, 443
U.S. at 99 (identity of juvenile charged as an offender in West Virginia
courts). And those cases involved information that either came from the
government itself, Florida Star, 491 U.S. at 534 (information provided by
police), or concerned governmental proceedings, Daily Mail, 443 U.S. at
99 (charging of juvenile in West Virginia courts). See also Landmark Communications,
Inc. v. Virginia, 435 U.S. 829, 838-839 (1978) (publication bar with respect
to judicial discipline proceedings). Title III, in contrast, is limited
to the contents of communications that were illegally obtained; it prohibits
all uses of such communications, rather than singling out expression or
publication; it does not predicate liability on content or subject matter;
it does not seek to suppress public knowledge about particular issues or
subjects; and it is not aimed at information from or concerning the government.
This Court should determine whether such a statute is constitutional.
The constitutionality of Title III and statutes like it is a matter of considerable
import. Forty-four States and the District of Columbia have laws that, like
Title III and the Pennsylvania statute at issue here, bar "not only
the interception of electronic communications, but also the disclosure of
those communications by persons acting under color of law." Boehner,
191 F.3d 468 n.6; see App., infra, 53a & n. 5 (Pollak, J., dissenting)
(noting numerous statutes that "closely parallel the provisions of"
Title III, and declaring that "in the two centuries of our constitutional
history there cannot have been more than a handful of decisions * * * which,
in the exercise of the awesome power of judicial review, have cut so wide
a swath"). Similar First Amendment challenges are being pursued in
at least two other pending cases: Peavy v. WFAA TV, Inc., No. 99-10272 (5th
Cir. argued Apr. 3, 2000), and Quigley v. Rosenthal, No. 94-N-2782 (D. Colo.).
And the volume of communications affected by those statutes and the Third
Circuit's decision is rapidly increasing. As the technologies for carrying
private communications proliferate and their usage increases, so too have
the means that can be used to intercept them.9
The Third Circuit's decision decreases the security of such means of communications.
Under that decision, individuals must communicate at the risk that, if their
conversation is unlawfully intercepted, anyone other than the wiretapper
himself is free to disclose the contents of the conversation to the world.
Without assurances that the law will effectively protect the confidentiality
of their conversations, members of the public may be less willing to take
advantage of the means of communication that are increasingly at their disposal.
CONCLUSION
The petition for a writ of certiorari should be granted.
Respectfully submitted.
SETH P. WAXMAN
Solicitor General
DAVID W. OGDEN
Acting Assistant Attorney
General
MICHAEL DREEBEN
Deputy Solicitor General
JEFFREY A. LAMKEN
Assistant to the Solicitor
General
DOUGLAS N. LETTER
SCOTT R. MCINTOSH
Attorneys
APRIL 2000
1 Before the 1986 amendments, it was unsettled whether Title III's definition
of "wire communication" reached the radio portion of cellular
telephone communications. See, e.g., Edwards v. State Farm Ins. Co., 833
F.2d 535, 538 (5th Cir. 1987). ECPA makes it clear that Congress intended
to bring cellular phone communications within the ambit of Title III. Shubert
v. Metrophone, Inc., 898 F.2d 401, 404-405 (3d Cir. 1990).
2 Under 28 U.S.C. 2403(a), federal courts are required to notify the Attorney
General when the constitutionality of an Act of Congress is drawn into question
in a federal suit to which the United States is not a party; and they are
required to permit the United States to intervene "with all the rights
of a party" to defend the constitutionality of the statute.
3 The court of appeals rejected respondents' claim that Smith v. Daily Mail
Publishing Co., 443 U.S. 97 (1979), and Florida Star v. B.J.F., 491 U.S.
524 (1989), require the application of strict scrutiny. Those cases, the
court held, expressly decline to address the constitutionality of laws that,
like Title III, proscribe the dissemination of a communication that "has
been acquired unlawfully by a newspaper or [by] a source." App., infra,
13a (quoting Florida Star, 491 U.S. at 535 n.8).
4 The plaintiffs below have filed a petition for a writ of certiorari seeking
review of the judgment of the court of appeals. Bartnicki v. Vopper, No.
99-1687 (filed Apr. 19, 2000). The defendant in Boehner v. McDermott has
filed a petition for a writ of certiorari seeking review of the District
of Columbia Circuit's decision in that case. See McDermott v. Boehner, No.
99-1709 (filed Apr. 25, 2000).
5 Title III's ban on the use of illegally intercepted communications thus
applies with equal force whether the defendant uses the communication for
wholly non-expressive purposes, 18 U.S.C. 2511(1)(d), such as trading stocks
or developing a new product, see, e.g., 1968 Senate Report 69 (use of intercepted
communications regarding trade secrets or corporate and labor-management
transactions); Fultz, 942 F.2d at 400 n.4 (extortion); Dorris v. Absher,
959 F. Supp. 813, 815-817 (M.D. Tenn. 1997) (workplace discipline), or instead
uses it for expressive purposes such as publication, 18 U.S.C. 2511(1)(c).
6 Even if strict scrutiny were applicable, Title III's prohibitions would
pass constitutional muster.
7 Given the immediate connection between the use-and-disclosure restrictions
and their effect on incentives to conduct illegal interceptions, and this
Court's recognition of similiar connections in cases such as Ferber and
Osborne v. Ohio, 495 U.S. 103, 110 (1990), the government does not need
to provide evidentiary "proof" for the obvious proposition that
more surveillance will take place if eavesdroppers enjoy an unrestricted
market for the fruits of their labors. Cf. Nixon v. Shrink Mo. Gov't PAC,
120 S. Ct. 897, 906 (2000) ("The quantum of empirical evidence needed
to satisfy heightened judicial scrutiny of legislative judgments will vary
up or down with the novelty and plausibility of the justification raised.").
8 To the extent there may be remaining concerns about the potential chilling
effect of the statute, those concerns can be addressed by, for example,
requiring clear and convincing proof in a civil case and providing for de
novo appellate review-approaches applied in other First Amendment settings.
See App., infra, 56a-57a (Pollak, J., dissenting); see generally Waters
v. Churchill, 511 U.S. 661, 669-671 (1994) (plurality opinion).
9 Electronic mail over the Internet and wireless telephone usage have both
experienced exponential growth in recent years. Because cellular handsets
send and receive encoded radio signals that can be intercepted and deciphered
"by regular radio scanners modified to intercept cellular calls,"
calls made on such handsets are easier to intercept than those made on traditional,
wireline telephones. Shubert v. Metrophone, Inc., 898 F.2d 401, 405 (3d
Cir. 1990). Electronic mail transmitted over the Internet is likewise subject
to unlawful interception by surreptitious means. See, e.g., "Security
of the Internet," 15 Encyclopedia of Telecommunications 231, 236, 242
(Fritz E. Froehlich & Allen Kent eds. 1998); CERT Coordination Center,
Software Engineering Institute, Carnegie Mellon University, Report to the
President's Commission on Critical Infrastructure Protection § 3.1.3
(Jan. 1997) ("Information (such as electronic mail * * * and other
data) is sent from one computer to another [on the Internet] in a form easily
readable by anyone connected to a part of the network joining the two systems
together.").
APPENDIX A
UNITED STATES COURT OF APPEALS
THIRD CIRCUIT
No. 98-7156
GLORIA BARTNICKI AND ANTHONY F. KANE, JR.
v.
FREDERICK W. VOPPER, A/K/A FRED WILLIAMS;
KEYMARKET OF NEPA, INC., D/B/A WILK RADIO;
LACKAZERNE INC., D/B/A WGBI RADIO; JANE DOE;
JOHN DOE; JACK YOCUM
FREDERICK W. VOPPER,
A/K/A FRED WILLIAMS; KEYMARKET OF NEPA, INC.,
D/B/A WILK RADIO; LACKAZERNE, INC., D/B/A WGBI RADIO; JACK YOCUM, APPELLANTS,
UNITED STATES OF AMERICA, INTERVENOR.
[Argued: Oct. 5, 1998.
Decided: Dec. 27, 1999]
Before: SLOVITER and COWEN, Circuit Judges, and POLLAK,* District Judge
OPINION OF THE COURT
SLOVITER, Circuit Judge.
At issue is whether the First Amendment precludes imposition of civil damages
for the disclosure of portions of a tape recording of an intercepted telephone
conversation containing information of public significance when the defendants,
two radio stations, their reporter, and the individual who furnished the
tape recording, played no direct or indirect role in the interception.
I.
BACKGROUND
A.
From the beginning of 1992 until the beginning of 1994, Wyoming Valley West
School District was in contract negotiations with the Wyoming Valley West
School District Teachers' Union (the "Teachers' Union") over the
terms of the teachers' new contract. The negotiations, which were markedly
contentious, generated significant public interest and were frequently covered
by the news media.
Plaintiffs Gloria Bartnicki and Anthony F. Kane, Jr., as well as defendant
Jack Yocum, all were heavily involved in the negotiating process. Bartnicki
was the chief negotiator on behalf of the Teachers' Union. Kane, a teacher
at Wyoming Valley West High School, served as president of the local union.
Yocum served as president of the Wyoming Valley West Taxpayers' Association,
an organization formed by local citizens for the sole purpose of opposing
the Teachers' Union's proposals.
In May of 1993, Bartnicki, using her cellular phone, had a conversation
with Kane. They discussed whether the teachers would obtain a three-percent
raise, as suggested by the Wyoming Valley West School Board, or a six-percent
raise, as suggested by the Teachers' Union. In the course of their phone
conversation, Kane stated:
If they're not going to move for three percent, we're gonna have to go to
their, their homes . . . to blow off their front porches, we'll have to
do some work on some of those guys . . . . Really, uh, really and truthfully,
because this is, you know, this is bad news (undecipherable) The part that
bothers me, they could still have kept to their three percent, but they're
again negotiating in the paper. This newspaper report knew it was three
percent. What they should have said, 'we'll meet and discuss this.' You
don't discuss the items in public.
App. at 35-36. Bartnicki responded, "No," and, Kane continued,
"You don't discuss this in public . . . . Particularly with the press."
App. at 36.
This conversation, including the statements quoted above, was intercepted
and recorded by an unknown person, and the tape left in Yocum's mailbox.
Yocum retrieved the tape, listened to it, and recognized the voices of Bartnicki
and Kane. He then gave a copy of the tape to Fred Williams, also known as
Frederick W. Vopper, of WILK Radio and Rob Neyhard of WARM Radio, both local
radio stations. Williams repeatedly played part of the tape on the air as
part of the Fred Williams Show, a radio news/public affairs talk show which
is broadcast simultaneously over WILK Radio and WGBI-AM. The tape was also
aired on some local television stations and written transcripts were published
in some newspapers.
B.
Bartnicki and Kane sued Yocum, Williams, WILK Radio, and WGBI Radio (hereafter
"media defendants") under both federal and state law. They based
their federal claims on Title III of the Omnibus Crime Control and Safe
Streets Act of 1968, as amended by the Electronic Communications Privacy
Act of 1986, 28 U.S.C. § 2510 et seq., and their state claims on the
Pennsylvania Wiretapping and Electronic Surveillance Control Act, 18 Pa.
Cons. Stat. § 5701 et seq. As relief, Bartnicki and Kane sought (1)
actual damages in excess of $50,000, (2) statutory damages under 18 U.S.C.
§ 2520(c)(2), (3) liquidated damages under 18 Pa. Cons. Stat. §
5725(a)(1), (4) punitive damages, and (5) attorneys' fees and costs.
Bartnicki, Kane, and the defendants each moved for summary judgment. The
District Court denied these motions on June 14, 1996 and denied defendants'
motion to reconsider on November 8, 1996, specifically holding that imposing
liability on the defendants would not violate the First Amendment.
The District Court subsequently certified two questions as controlling questions
of law: "(1) whether the imposition of liability on the media Defendants
under the [wiretapping statutes] solely for broadcasting the newsworthy
tape on the Defendant Fred Williams' radio news/public affairs program,
when the tape was illegally intercepted and recorded by unknown persons
who were not agents of the Defendants, violates the First Amendment; and
(2) whether imposition of liability under the aforesaid [wiretapping statutes]
on Defendant Jack Yocum solely for providing the anonymously intercepted
and recorded tape to the media Defendants violates the First Amendment."
App. at 388. Williams, WILK Radio, and WGBI Radio subsequently petitioned
for permission to appeal. Yocum filed an answer to the petition in which
he joined the media defendants' request that we hear this appeal. We granted
the petition by order dated February 26, 1998. The Pennsylvania State Education
Association submitted a brief as amicus curiae in support of the appellees,
and the United States has intervened as of right pursuant to 28 U.S.C. §
2403.
C.
The District Court had jurisdiction to consider claims based on the Omnibus
Crime Control and Safe Streets Act of 1968 pursuant to 28 U.S.C. §
1331. It had supplemental jurisdiction pursuant to 28 U.S.C. § 1367
to consider claims based on the Pennsylvania Wiretapping and Electronic
Surveillance Control Act. We have appellate jurisdiction to review the District
Court's substantive determination pursuant to 28 U.S.C. § 1292(b).
The scope of our review in a permitted interlocutory appeal is limited to
questions of law raised by the underlying order. We are not limited to answering
the questions certified, however, and may address any issue necessary to
decide the appeal. See Dailey v. National Hockey League, 987 F.2d 172, 175
(3d Cir. 1993).
We review the grant or denial of a motion for summary judgment de novo.
See H.K. Porter Co. v. Pennsylvania Ins. Guaranty Ass'n, 75 F.3d 137, 140
(3d Cir. 1996). We are "required to apply the same test the district
court should have utilized initially," to view inferences to be drawn
from the underlying facts in the light most favorable to the party opposing
the motion, and to take the non-movant's allegations as true whenever these
allegations conflict with those of the movant. Goodman v. Mead Johnson &
Co., 534 F.2d 566, 573 (3d Cir. 1976).
D.
The Federal Omnibus Crime Control and Safe Streets Act of 1968 (the "Federal
Wiretapping Act") provides in relevant part:
(1) Except as otherwise specifically provided in this chapter any person
who-
. . . . .
(c) intentionally discloses, or endeavors to disclose, to any other person
the contents of any wire, oral, or electronic communication, knowing or
having reason to know that the information was obtained through the interception
of a wire, oral, or electronic communication in violation of this subsection;
(d) intentionally uses, or endeavors to use, the contents of any wire, oral,
or electronic communication, knowing or having reason to know that the information
was obtained through the interception of a wire, oral, or electronic communication
in violation of this subsection . . .
shall be punished as provided in subsection (4) or shall be subject to suit
as provided in subsection (5).
18 U.S.C. § 2511. It continues:
(a) In general.-Except as provided in section 2511(2)(a)(ii), any person
whose wire, oral, or electronic communication is intercepted, disclosed,
or intentionally used in violation of this chapter may in a civil action
recover from the person or entity which engaged in the violation such relief
as may be appropriate.
18 U.S.C. § 2520. The Federal Wiretapping Act thus creates civil and
criminal causes of action against those who intentionally use or disclose
to another the contents of a wire, oral, or electronic communication, knowing
or having reason to know that the information was obtained in violation
of the statute.
The Pennsylvania Wiretapping and Electronic Surveillance Control Act (the
"Pennsylvania Wiretapping Act") is similar. It provides:
Except as otherwise provided in this chapter, a person is guilty of a felony
of the third degree if he:
. . . . .
(2) intentionally discloses or endeavors to disclose to any other person
the contents of any wire, electronic or oral communication, or evidence
derived therefrom, knowing or having reason to know that the information
was obtained through the interception of a wire, electronic or oral communication;
or
(3) intentionally uses or endeavors to use the contents of any wire, electronic
or oral communication, or evidence derived therefrom, knowing or having
reason to know that the information was obtained through the interception
of a wire, electronic or oral communication.
18 Pa. Cons. Stat. § 5703. It further provides:
(a) Cause of action.-Any person whose wire, electronic or oral communication
is intercepted, disclosed or used in violation of this chapter shall have
a civil cause of action against any person who intercepts, discloses or
uses or procures any other person to intercept, disclose or use, such communica-
tion . . . .
18 Pa. Cons. Stat. § 5725. The Pennsylvania Wiretapping Act thus also
creates civil and criminal causes of action based on the knowing or negligent
use or disclosure of illegally intercepted material. We refer to the federal
and state statutes at issue here as "The Wiretapping Acts."
Both Acts also explicitly authorize the recovery of civil relief. The Federal
Wiretapping Act provides that a court may assess as damages whichever is
the greater of-
(A) the sum of the actual damages suffered by the plaintiff and any profits
made by the violator as a result of the violation; or
(B) statutory damages of whichever is the greater of $100 a day for each
day of violation or $10,000.
18 U.S.C. § 2520(c)(2). The Pennsylvania Wiretapping Act specifies
that a successful plaintiff shall be entitled to recover from any such person:
(1) Actual damages, but not less than liquidated damages computed at the
rate of $100 a day for each day of violation, or $1,000, whichever is higher.
(2) Punitive damages.
(3) A reasonable attorney's fee and other litigation costs reasonably incurred.
18 Pa. Cons. Stat. § 5725(a).
II.
DISCUSSION
A.
As the District Court acknowledged and the parties do not dispute, the media
defendants neither intercepted nor taped the conversation between Bartnicki
and Kane. Indeed, the record does not disclose how or by whom the conversation
was intercepted. The media defendants argued before the District Court that
these facts preclude a court from finding them liable under the Wiretapping
Acts. The District Court disagreed. It concluded that, "a violation
of these acts can occur by the mere finding that a defendant had a reason
to believe that the communication that he disclosed or used was obtained
through the use of an illegal interception." Bartnicki v. Vopper, No.
94-1201, slip op. at 5 (M.D. Pa. June 17, 1996). It further opined that
such an interpretation of the statute "adheres to the purpose of the
act which was to protect wire and oral communications and an individual's
privacy interest in such." Id. The District Court concluded that genuine
disputes of material fact remain regarding (1) whether the Bartnicki-Kane
conversation was illegally intercepted, and if so (2) whether any or all
of the defendants knew or had reason to know that that conversation was
illegally intercepted. See id. at 5, 10. The parties do not challenge these
holdings on appeal.
Hence, this case does not involve the prohibitions of the Wiretapping Acts
against the actual interception of wire communications. Nor does it involve
any application of the Acts' criminal provisions. Rather, this case focuses
exclusively on the portions of the Wiretapping Acts that create causes of
action for civil damages against those who use or disclose intercepted communications
and who had reason to know that the information was received through an
illegal interception.
The defendants argue that applying the damages provision of the Wiretapping
Acts to hold them liable for disclosing the Bartnicki-Kane conversation
violates the First Amendment. They contend that this case is controlled
by the Supreme Court's decisions in a series of cases addressing the tension
between the First Amendment and the right to privacy.
In the first of these cases, Cox Broadcasting Corp. v. Cohn, 420 U.S. 469,
95 S. Ct. 1029, 43 L.Ed.2d 328 (1975), the Court considered a private right
of action created by a Georgia statute making it a "misdemeanor to
publish or broadcast the name or identity of a rape victim." Id. at
472, 95 S. Ct. 1029. The Court was asked to decide whether Georgia could
impose civil liability on a television broadcasting company, among others,
for accurately broadcasting the name of a deceased, 17-year-old rape victim
where the reporter obtained the information from official court records
open to public inspection.
In the next case, Landmark Communications, Inc. v. Virginia, 435 U.S. 829,
98 S. Ct. 1535, 56 L.Ed.2d 1 (1978), the Court reviewed a Virginia statute
that both provided for the confidentiality of judicial disciplinary proceedings
and made it unlawful to divulge the identity of a judge subject to such
proceedings prior to the filing of a formal complaint with the state's highest
court. The Supreme Court was asked to decide whether Virginia could criminally
prosecute a newspaper for publishing accurate information about such proceedings
where the newspaper received the information from a participant in the proceedings
who had the right to receive the information but not the right to divulge
it. See id. at 830, 98 S. Ct. 1535.
Finally, in Smith v. Daily Mail Publishing Co., 443 U.S. 97, 99 S. Ct. 2667,
61 L.Ed.2d 399 (1979), the Court considered a West Virginia statute "making
it a crime for a newspaper to publish, without the written approval of the
juvenile court, the name of any youth charged as a juvenile offender."
Id. at 98, 99 S. Ct. 2667. The Court was asked to decide whether West Virginia
could prosecute two newspapers for publishing the name of a 14-year-old
student who was accused of shooting and killing a 15-year-old classmate
at the local junior high school. The newspapers had obtained the student's
name by interviewing witnesses at the school.
The Supreme Court concluded that each of these attempts to punish or deter
the press's publication of truthful information was unconstitutional. The
Smith Court, in summarizing the Court's past cases, read them as suggesting
at least two propositions: (1) "state action to punish the publication
of truthful information seldom can satisfy constitutional standards,"
and (2) "if a newspaper lawfully obtains truthful information about
a matter of public significance then state officials may not constitutionally
punish publication of the information, absent a need to further a state
interest of the highest order." 491 U.S. at 102, 103, 109 S. Ct. 2324;
accord Florida Star v. B.J.F., 491 U.S. 524, 533-37, 109 S. Ct. 2603, 105
L.Ed.2d 443 (1989) (adopting and explaining the justification for the second
Smith proposition).
The defendants contend that the information disclosed about the Bartnicki-Kane
conversation was lawfully obtained within the meaning of the Smith decision
because the defendants in this case neither participated in the presumed
interception nor violated any law by receiving the information. They conclude
that the Wiretapping Acts may not be applied to hold them liable without
first meeting the test of strict scrutiny.
Bartnicki and Kane respond by arguing that the information at issue here
was unlawfully obtained because the original interception presumably was
illegal. They conclude that applying the Acts to hold the defendants liable
is constitutional without subjecting those statutes to any level of First
Amendment scrutiny. The parties thus assume that we should determine the
constitutionality of the Wiretapping Acts by first determining whether the
information disclosed was "lawfully" or "unlawfully"
obtained.
Although we are cognizant of the importance of the Cox, Landmark, and Smith
cases as background, we decline to read Smith as controlling here. The Supreme
Court has explicitly repudiated any suggestion that Smith answers the question
whether a statute that limits the dissemination of information obtained
by means of questionable legality is subject to First Amendment scrutiny.
In Florida Star, the Court stated, "The [Smith] principle does not
settle the issue whether, in cases where information has been acquired unlawfully
by a newspaper or by a source, government may ever punish not only the unlawful
acquisition, but the ensuing publication as well." 491 U.S. at 535
n. 8, 109 S. Ct. 2603. Similarly, the Smith Court was careful to note that
its holding did not reach the issue of unlawful press access. See 443 U.S.
at 105, 99 S. Ct. 2667.
Moreover, the Supreme Court's practice of narrowly circumscribing its holdings
in this area strongly suggests that a rule for undecided cases should not
be derived by negative implication from its reported decisions. The defendant
in Landmark urged the Court to adopt a blanket rule, protecting the press
from any liability for truthfully reporting information concerning public
officials and their public duties, but the Supreme Court refused to do so.
See 435 U.S. at 838, 98 S. Ct. 1535. Instead it considered the very narrow
question: "whether [a state] may subject persons, including newspapers,
to criminal sanctions for divulging information regarding proceedings before
a state judicial commission which is authorized to hear complaints as to
judges' disability or misconduct, when such proceedings are declared confidential
by the State Constitution and statutes." Id. at 830, 98 S. Ct. 1535.
Similarly, the Florida Star Court refused "appellant's invitation to
hold broadly that truthful publication may never be punished consistent
with the First Amendment." 491 U.S. at 532, 109 S. Ct. 2603. It stated:
"Our cases have carefully eschewed reaching this ultimate question,
mindful that the future may bring scenarios which prudence counsels our
not resolving anticipatorily . . . . We continue to believe that the sensitivity
and significance of the interests presented in clashes between First Amendment
and privacy rights counsel relying on limited principles that sweep no more
broadly than the appropriate context of the instant case." Id. at 532-33,
109 S. Ct. 2603.
In keeping with the Supreme Court's approach to deciding these illustrative
cases, we will resolve the present controversy not by mechanically applying
a test gleaned from Cox and its progeny, but by reviewing First Amendment
principles in light of the unique facts and circumstances of this case.
B.
The District Court based its conclusion that the damages provision of the
Wiretapping Acts may constitutionally be applied to penalize the defendants'
conduct primarily on the Supreme Court's decision in Cohen v. Cowles Media
Co., 501 U.S. 663, 111 S. Ct. 2513, 115 L.Ed.2d 586 (1991). The District
Court interpreted that decision as standing for the proposition that a generally
applicable law that neither singles out the press for special burdens nor
purposefully restricts free expression does not offend the First Amendment.
See Bartnicki, slip op. at 8 ("Generally applicable laws 'do not offend
the First Amendment simply because their enforcement against the press has
incidental effects on its ability to gather and report the news.'"
(quoting Cohen v. Cowles Media Co., 501 U.S. 663, 669, 111 S. Ct. 2513,
115 L.Ed.2d 586 (1991))). The District Court emphasized language from the
Cohen opinion in which the Supreme Court stated, "'[i]t is . . . beyond
dispute that the publisher of a newspaper has no special immunity from the
application of general laws. He has no special privilege to invade the rights
and liberties of others.'" Bartnicki, slip op. at 8 (quoting Cohen,
501 U.S. at 670, 111 S. Ct. 2513).
After reviewing the Federal and Pennsylvania Wiretapping Acts, the District
Court found that neither Act targets or singles out the press. The District
Court also opined that these laws are not "specifically designed to
chill free speech." Id. at 7. Based on this finding, it concluded that
"both acts are matters of general applicability" and, without
further analysis, denied defendants' motion for summary judgment on the
basis of the First Amendment.
There is reason to question whether the damages provisions of the Acts are
properly categorized as generally applicable laws. Arguably, that term should
be reserved for laws that directly regulate conduct rather than speech.
See infra at 119. Moreover, it may well be that be that [sic] by banning
the disclosure of certain information, the damages provisions impose a disproportionate
burden on the press. Indeed, we would not be surprised to find that a prohibition
on disclosure falls more heavily on the press, which is in the business
of disseminating information, than it does on ordinary citizens whose opportunities
for spreading information are more limited.
We need not resolve that question, however, because we conclude that, by
suggesting that generally applicable laws do not require First Amendment
scrutiny when applied to the press, the District Court read the cited portions
of Cohen too broadly. In Cohen, the plaintiff, who was actively associated
with the election staff of a gubernatorial candidate, offered to provide
two newspapers with some information concerning the candidate's opponent
in exchange for a promise that the newspapers would not use his name in
any resulting story. After having made the promise and secured the information,
each newspaper proceeded to publish a story identifying Cohen as the source
of the information and highlighting his role in the gubernatorial campaign.
Cohen lost his job the day the stories ran. He then sued the publishers
of the newspapers in state court and recovered damages under a theory of
promissory estoppel. The publishers appealed, arguing that holding them
liable for their breached promises would violate the First Amendment.
It is in the context of rejecting this argument that the Supreme Court stated,
"[G]enerally applicable laws do not offend the First Amendment simply
because their enforcement against the press has incidental effects on its
ability to gather and report the news." Cohen, 501 U.S. at 669, 111
S. Ct. 2513. The Court explained that "enforcement of such general
laws against the press is not subject to stricter scrutiny than would be
applied to enforcement against other persons or organizations." Id.
at 670, 111 S. Ct. 2513.
The Cohen opinion thus instructs that a law of general applicability, which
neither targets nor imposes disproportionate burdens upon the press, is
enforceable against the press to the same extent that it is enforceable
against individuals or organizations. The question remains whether the damages
provisions of the Wiretapping Acts may constitutionally be applied to penalize
individuals or organizations for disclosing material they know or have reason
to know was illegally intercepted who had no part in the interception.
C.
In order to determine whether the provisions for civil sanctions from the
Wiretapping Acts may constitutionally be applied to penalize defendants'
disclosure, we must first decide what degree of First Amendment scrutiny
should be applied.
The United States argues that the Federal Wiretapping Act is subject to
intermediate rather than strict scrutiny. It bases this contention on two
subsidiary assertions: (1) that these are "general law[s] that impose[
] only incidental burdens on expression" and (2) that "to the
extent that Title III restricts speech in particular cases, it does so in
an entirely content-neutral fashion." United States' Br. at 22. It
states that "[a] statute satisfies intermediate scrutiny, if it furthers
an important or substantial governmental interest, if the governmental interest
is unrelated to the suppression of free expression, and if the incidental
restriction on speech is not unnecessarily great." United States' Br.
at 11-12. We assume that the United States' arguments apply equally to the
Pennsylvania Wiretapping Act, which is substantially similar to the Federal
Wiretapping Act.
We first consider the United States' argument that the disclosure provisions
of the Wiretapping Acts merit only intermediate scrutiny because they impose
only incidental burdens on expression. In support, the United States cites
a series of Supreme Court decisions, beginning with United States v. O'Brien,
391 U.S. 367, 88 S. Ct. 1673, 20 L.Ed.2d 672 (1968).
O'Brien was arrested and convicted for burning his draft card on the steps
of the South Boston Courthouse. On appeal, O'Brien argued that the federal
law, making it an offense to "forge[ ], alter[ ], knowingly destroy[
], knowingly mutilate[ ], or in any manner change[ ] . . . such [a] certificate,"
was unconstitutional. Id. at 370, 88 S. Ct. 1673 (italics omitted). The
Court of Appeals for the First Circuit agreed that this provision unconstitutionally
abridged the freedom of speech.
The Supreme Court, however, reversed. It opined that the statute "on
its face deals with conduct having no connection with speech. It prohibits
the knowing destruction of certificates issued by the Selective Service
System, and there is nothing necessarily expressive about such conduct."
Id. at 375, 88 S. Ct. 1673.1 The Supreme Court nonetheless recognized that
O'Brien had burned his draft card as a form of protest against war. Assuming
for the sake of argument that "the alleged communicative element in
O'Brien's conduct [was] sufficient to bring into play the First Amendment,"
the Supreme Court held that the statute was still a permissible regulation.
Id. at 376, 88 S. Ct. 1673. It reasoned that "when 'speech' and 'nonspeech'
elements are combined in the same course of conduct, a sufficiently important
governmental interest in regulating the nonspeech element can justify incidental
limitations on First Amendment freedoms." Id. The Court stated that
such "a government regulation is sufficiently justified if it is within
the constitutional power of the Government; if it furthers an important
or substantial governmental interest; if the governmental interest is unrelated
to the suppression of free expression; and if the incidental restriction
on alleged First Amendment freedoms is no greater than essential to the
furtherance of that interest." Id. at 377, 88 S. Ct. 1673.
In O'Brien and its progeny, the Supreme Court distinguished between "expressive
conduct protected to some extent by the First Amendment" and oral or
written expression, which is fully protected by that amendment. Clark v.
Community for Creative Non-Violence, 468 U.S. 288, 293, 104 S. Ct. 3065,
82 L.Ed.2d 221 (1984). "[C]onduct that is intended to be communicative
and that, in context, would reasonably be understood by the viewer to be
communicative" is "[s]ymbolic expression," otherwise known
as expressive conduct. Id. at 294, 104 S. Ct. 3065. The cases the United
States cites in addition to O'Brien also focus on the permissibility of
regulating expressive conduct. See Barnes v. Glen Theatre, Inc., 501 U.S.
560, 111 S. Ct. 2456, 115 L.Ed.2d 504 (1991) (Indiana statute prohibiting
complete nudity in public places); Arcara v. Cloud Books, Inc., 478 U.S.
697, 106 S. Ct. 3172, 92 L.Ed.2d 568 (1986) (New York statute authorizing
closure of building found to be a public health nuisance); United States
v. Albertini, 472 U.S. 675, 105 S. Ct. 2897, 86 L.Ed.2d 536 (1985) (federal
statute making it unlawful to reenter a military base after having been
barred by the commanding officer); Clark, 468 U.S. at 289, 104 S. Ct. 3065
(National Park Service regulation prohibiting camping in Lafayette Park);
cf. R.A.V. v. City of St. Paul, 505 U.S. 377, 112 S. Ct. 2538, 120 L.Ed.2d
305 (1992) (Minnesota statute prohibiting display of certain objects, including
a burning cross or Nazi swastika).
By citing this line of cases in support of its position that intermediate
scrutiny applies here, the United States apparently suggests that defendants'
actions in disclosing the contents of the Bartnicki-Kane conversation are
properly considered "expressive conduct" rather than speech. If
this is the thrust of the government's citations, it is not persuasive.
The acts on which Bartnicki and Kane base their complaint are Yocum's "intentionally
disclos[ing a] tape to several individuals and media sources"2 and
the media defendants' "intentionally disclos[ing] and publish[ing]
to the public the entire contents of the private telephone conversation
between Bartnicki and Kane." App. at 149. If the acts of "disclosing"
and "publishing" information do not constitute speech, it is hard
to imagine what does fall within that category, as distinct from the category
of expressive conduct.
We have no doubt that it is possible to identify some act by the media defendants
in the course of preparing the broadcasts during which the tape was disclosed
that falls within our ordinary understanding of the term conduct. However,
this fact does not alter the analysis. The Supreme Court has observed, "It
is possible to find some kernel of expression in almost every activity a
person undertakes-for example, walking down the street or meeting one's
friends at a shopping mall-but such kernel is not sufficient to bring the
activity within the protection of the First Amendment." Barnes, 501
U.S. at 570, 111 S. Ct. 2456 (quoting Dallas v. Stanglin, 490 U.S. 19, 25,
109 S. Ct. 1591, 104 L.Ed.2d 18 (1989)). Similarly, although it may be possible
to find some kernel of conduct in almost every act of expression, such kernel
of conduct does not take the defendants' speech activities outside the protection
of the First Amendment.
The United States nonetheless insists that intermediate scrutiny is appropriate
because the statute, read as a whole, primarily prohibits conduct rather
than speech. It notes that the prohibition in 18 U.S.C. § 2511(1)(d)
against using or endeavoring to use intercepted material encompasses more
than disclosure. The government asserts that it precludes, for example,
a person or company from using intercepted material to develop a competing
product, to craft a negotiating strategy, or to justify taking disciplinary
action against an employee. United States' Br. at 22-23.
The government cites no support for the surprising proposition that a statute
that governs both pure speech and conduct merits less First Amendment scrutiny
than one that regulates speech alone. We are convinced that this proposition
does not accurately state First Amendment law. A statute that prohibited
the "use" of evolution theory would surely violate the First Amendment
if applied to prohibit the disclosure of Charles Darwin's writings, much
as a law that directly prohibited the publication of those writings would
surely violate that Amendment.
Because the defendants' acts in this case-the disclosure and broadcast of
information-contain no significant "nonspeech" elements, we need
not decide whether this statute could properly be subjected to lesser scrutiny
if applied to prohibit "uses" that do involve such "nonspeech"
elements. We merely hold that, when a statute that regulates both speech
and conduct is applied to an act of pure speech, that statute must meet
the same degree of First Amendment scrutiny as a statute that regulates
speech alone.
The United States' second argument-that intermediate scrutiny applies because
the Acts are content-neutral-is more persuasive.
When the state uses a "content-based" regulation to restrict free
expression, particularly political speech, that regulation is subject to
"the most exacting scrutiny." Boos v. Barry, 485 U.S. 312, 321,
108 S. Ct. 1157, 99 L.Ed.2d 333 (1988); Phillips v. Borough of Keyport,
107 F.3d 164, 172 (3d Cir. 1997) (en banc). It will not be upheld unless
the state can show that it "is necessary to serve a compelling state
interest and that it is narrowly drawn to achieve that end." Boos,
485 U.S. at 321, 108 S. Ct. 1157; see also Phillips, 107 F.3d at 172 ("State
regulations of speech that are not regarded as content neutral will be sustained
only if they are shown to serve a compelling state interest in a manner
which involves the least possible burden on expression.").
By contrast, when the state places a reasonable "content-neutral"
restriction on speech, such as a time, place and manner regulation, that
regulation need not meet the same high degree of scrutiny. "Content-neutral"
restrictions are valid under the First Amendment provided that they "are
justified without reference to the content of the regulated speech, that
they are narrowly tailored to serve a significant governmental interest,
and that they leave open ample alternative channels for communication of
information."3 Clark, 468 U.S. at 293, 104 S. Ct. 3065.
We recognize that an argument could be made that the Wiretapping Acts are
content-based. Ordinarily, the distinction between permissible and impermissible
regulation of speech depends on whether the law at issue regulates the substantive
content of the speech (what is said) or whether it merely regulates the
time, place, or manner of the speech (when, where, at what volume, and through
which medium it is said). The former regulations are content-based while
the latter are content-neutral. The essence of the distinction lies in the
fact that, if the regulation were content-based, it would not be possible
to determine whether a particular speech is prohibited without referring
to the substantive import of that expression.
The United States contends that the Wiretapping Acts are not content-based
even in the literal sense referred to above because the Acts define the
content that is prohibited by reference to the manner in which the information
was acquired, rather than to its subject matter or viewpoint. We suspect
that the mere fact that a regulation defines the category of content that
is prohibited by reference to its source rather than its subject matter
is unlikely to be sufficient to justify treating the regulation as content-neutral.
For example, one might argue that a ban on the publication of information
obtained through experimentation on human embryos would raise sufficient
First Amendment concerns to merit heightened scrutiny, even if such experimentation
were illegal.
The Supreme Court's decision in Renton v. Playtime Theatres, Inc., 475 U.S.
41, 106 S. Ct. 925, 89 L.Ed.2d 29 (1986), however, suggests that we are
not limited to a literal interpretation of the phrase "content-neutral"
but may determine whether speech is content-neutral or content-based with
reference to the government's proffered justification for the restriction.
In Renton, the Supreme Court described "content-neutral" speech
restrictions as those that "are justified without reference to the
content of the regulated speech." Id. at 48, 106 S. Ct. 925 (quoting
Virginia Pharmacy Bd. v. Virginia Citizens Consumer Council, Inc., 425 U.S.
748, 771, 96 S. Ct. 1817, 48 L.Ed.2d 346 (1976)). We therefore turn to consider
the purpose or purposes the Wiretapping Acts are meant to serve.
The Senate Report describes the purposes of the Federal Wiretapping Act
as: "(1) protecting the privacy of wire and oral communications, and
(2) delineating on a uniform basis the circumstances and conditions under
which the interception of wire and oral communications may be authorized."
S. Rep. No. 90-1097 (1968), reprinted in 1968 U.S.C.C.A.N. 2112, 2153. Congress
thus focused on privacy in adopting 18 U.S.C. § 2511, the provision
that prohibits the interception of wire, oral, or electronic communications,
as well as the use or disclosure of the contents of illegally intercepted
communications. Congress did not, however, define the privacy interest that
it intended the Act to protect.
As commonly understood, the right to privacy encompasses both the right
"to be free from unreasonable intrusions upon [one's] seclusion"
and the right to be free from "unreasonable publicity concerning [one's]
private life." Fultz v. Gilliam, 942 F.2d 396, 401 (6th Cir. 1991);
see also Whalen v. Roe, 429 U.S. 589, 97 S. Ct. 869, 51 L.Ed.2d 64 (1977);
Paul P. v. Verniero, 170 F.3d 396 (3d Cir. 1999). The Sixth Circuit has
opined that "[t]he prohibitions Congress incorporated into section
2511(1) of Title III protect both these interests first, by prohibiting
the surreptitious interception of private communications in the first instance-a
highly offensive physical intrusion on the victim's private affairs-and
second, by circumscribing the dissemination of private information so obtained."
Fultz, 942 F.2d at 401 (footnote omitted). The First Circuit has similarly
suggested that by enacting Title III Congress recognized "that the
invasion of privacy is not over when the interception occurs but is compounded
by disclosure." Providence Journal Co. v. FBI, 602 F.2d 1010, 1013
(1st Cir. 1979); see also Fultz, 942 F.2d at 402 ("Each time the illicitly
obtained recording is replayed to a new and different listener, the scope
of the invasion widens and the aggrieved party's injury is aggravated.").
We have no doubt that the state has a significant interest in protecting
the latter privacy right-the right not to have intimate facts concerning
one's life disclosed without one's consent. That right is a venerable one
whose constitutional significance we have recognized in the past. See Paul
P., 170 F.3d at 401-02 (collecting cases). We also have no doubt that the
prohibition on using or disclosing the contents of an illegally intercepted
communication serves that interest by deterring the publicization of private
facts.
We are less certain, however, that the desire to protect the privacy interest
that inheres in private facts is a content-neutral justification for restricting
speech. The Supreme Court has instructed that "[l]isteners' reaction
to speech is not a content-neutral basis for regulation." Forsyth County
v. Nationalist Movement, 505 U.S. 123, 134, 112 S. Ct. 2395, 120 L.Ed.2d
101 (1992); accord Lind v. Grimmer, 30 F.3d 1115, 1117 (9th Cir. 1994) ("Because
the[ ] concerns [addressed by the statute] all stem from the direct communicative
impact of speech, we conclude that section 11-216(d) regulates speech on
the basis of its content.") As Justice O'Connor explained in Boos,
"[r]egulations that focus on the direct impact of speech on its audience"-the
speech's "primary effects"-are not properly treated as content-neutral
under Renton. 485 U.S. at 321, 108 S. Ct. 1157 (Opinion of O'Connor, J.).
Although the defendants do not argue that the regulations at issue are content-based,
there is a not implausible argument that the injury associated with the
disclosure of private facts stems from the communicative impact of speech
that contains those facts, i.e. having others learn information about which
one wishes they had remained ignorant. Thus, under the Supreme Court's jurisprudence,
the injury associated with such disclosure constitutes a "primary effect"
of the disfavored speech, rather than a "secondary effect." This
reasoning might suggest that a statute that regulated expression for the
purpose of protecting the right not to have private facts disclosed without
permission would be subject to strict scrutiny as a content-based regulation.
We do not decide whether the Wiretapping Acts would indeed be properly categorized
as content-based if justified on the basis of a need to prevent the disclosure
of private facts because the United States for the most part eschews reliance
on that justification in explaining the purpose of those acts. Instead,
the United States argues that "the fundamental purpose of Title III
is to maintain the confidentiality of wire, electronic, and oral communications."
United States' Br. at 33. It reasons that "prohibiting the use of illegally
intercepted communication . . . 'strengthen[s] subsection (1)(a),' the provision
that imposes the underlying ban on unauthorized interception, 'by denying
the wrongdoer the fruits of his labor' and by eliminating the demand for
those fruits by third parties." United States' Br. at 33. We are satisfied
that this latter justification does not rely on the communicative impact
of speech and, therefore, that the Acts are properly treated as content-neutral.
D.
Accordingly, we adopt the government's position that we should apply intermediate
scrutiny in our analysis of the issue before us. In doing so, we must first
fix upon an acceptable definition of the term "intermediate scrutiny."4
Intermediate scrutiny is used by the Court in a wide variety of cases calling
for some balancing. Thus, intermediate scrutiny has been applied to statutes
that discriminate on the basis of gender. See Craig v. Boren, 429 U.S. 190,
200, 97 S. Ct. 451, 50 L.Ed.2d 397 (1976) (holding that prohibiting sale
of 3.2% beer to males under 21 and females under 18 did not "closely
serve" goal of promoting traffic safety). It is the review standard
used to examine whether an even-handed regulation promulgated for a legitimate
public interest violates the dormant Commerce Clause. See Pike v. Bruce
Church, Inc., 397 U.S. 137, 142, 90 S. Ct. 844, 25 L.Ed.2d 174 (1970) (describing
balancing test for state regulation); Southern Pac. Co. v. Arizona ex rel
Sullivan, 325 U.S. 761, 65 S. Ct. 1515, 89 L.Ed. 1915 (1945) (invalidating
limit on train length as not "plainly essential" to further state
interest in safety). And in the First Amendment context, intermediate scrutiny
has been applied to commercial speech cases, see Central Hudson Gas &
Elec. Corp. v. Public Serv. Comm'n., 447 U.S. 557, 566, 100 S. Ct. 2343,
65 L.Ed.2d 341 (1980) (establishing four-part test for commercial speech
regulation), and to examine the validity of time, place, and manner regulations,
see United States v. Grace, 461 U.S. 171, 103 S. Ct. 1702, 75 L.Ed.2d 736
(1983) (invalidating statute prohibiting displaying flag, banner or device
in Supreme Court building or on its grounds).
Admittedly, the intermediate scrutiny test applied varies to some extent
from context to context, and case to case. But it always encompasses some
balancing of the state interest and the means used to effectuate that interest.
And despite the frequent tendency to assume that regulations that are reviewed
under less exacting scrutiny than strict scrutiny will be upheld, each of
the cases referred to above as applying intermediate scrutiny held that
the regulation in question was unconstitutional. The reasons varied. Sometimes,
the Court held the asserted government interest insufficient to justify
an expansive prohibition and noted the government failed to demonstrate
that a lesser prohibition would not adequately serve its purpose. See, e.g.,
Schneider v. State, 308 U.S. 147, 162, 60 S. Ct. 146, 84 L.Ed. 155 (1939)
(holding that state interest in preventing littering did not justify ban
on leafletting); Village of Schaumburg v. Citizens for a Better Environment,
444 U.S. 620, 636, 100 S. Ct. 826, 63 L.Ed.2d 73 (1980) (invalidating prohibition
on charitable solicitations for certain charities as too destructive of
First Amendment interests). Other times, the Court held the government failed
to show that the challenged regulation substantially served the asserted
government interest. See, e.g., Grace, 461 U.S. at 182, 103 S. Ct. 1702.
It should also be noted that in making the examination into whether the
means chosen were those appropriate to the government interest, the Court
has not always made a distinction between its analysis for purposes of intermediate
scrutiny and for strict scrutiny. See, e.g., Anderson v. Celebrezze, 460
U.S. 780, 103 S. Ct. 1564, 75 L.Ed.2d 547 (1983) (invalidating candidate
registration statute because voters' associational and voting rights outweighed
state interest).
The test usually applied in First Amendment cases to content-neutral regulation
requires an examination of whether the regulation is "narrowly tailored
to serve a significant governmental interest" and "leave[s] open
ample alternative channels for communication." Clark v. Community for
Creative Non-Violence, 468 U.S. 288, 293, 104 S. Ct. 3065, 82 L.Ed.2d 221
(1984). There is a considerable number of First Amendment cases in which
the Supreme Court, applying intermediate scrutiny, has found that the regulation
at issue, albeit designed to advance legitimate state interests, failed
to withstand that scrutiny. A review of illustrative cases provides some
indication of the Court's analytic approach in such instances.
In Schneider, the Court recognized that there is a legitimate government
interest in preventing street littering but nevertheless found that "the
purpose to keep the streets clean and of good appearance is insufficient
to justify an ordinance which prohibits a person rightfully on a public
street from handing literature to one willing to receive it." 308 U.S.
at 162, 60 S. Ct. 146. The Court termed the burden imposed on the cities
in cleaning and caring for the streets "an indirect consequence of
such distribution," and one that resulted from the "constitutional
protection of the freedom of speech and press." Id. The Court continued,
in language significant for this case, "[t]here are obvious methods
of preventing littering. Amongst these is the punishment of those who actually
throw papers on the streets." Id. (emphasis added).
Similarly, in Village of Schaumburg, the Court recognized that the government
had a substantial interest in protecting the public from fraud, crime and
undue annoyance, but held that the proffered interest, which the government
sought to accomplish by an ordinance that prohibited the solicitation of
contributions by charitable organizations that did not use at least 75%
of their receipts for "charitable purposes," was "only peripherally
promoted by the 75-percent requirement and could be sufficiently served
by measures less destructive of First Amendment interests." 444 U.S.
at 636, 100 S. Ct. 826.
Both Schneider and Schaumburg were cited by the Court in a later case to
illustrate "the delicate and difficult task [that] falls upon the courts
to weigh the circumstances and to appraise the substantiality of the reasons
advanced in support of the regulation of the free enjoyment of [First Amendment]
rights." Schad v. Borough of Mount Ephraim, 452 U.S. 61, 70, 101 S.
Ct. 2176, 68 L.Ed.2d 671 (1981) (quoting Schneider, 308 U.S. at 161, 60
S. Ct. 146). In Schad, the Court invalidated a zoning ordinance that excluded
live entertainment, including nude dancing, throughout the borough after
finding that the borough "ha[d] not adequately justified its substantial
restriction of protected activity." Id. at 72, 101 S. Ct. 2176. Justice
Blackmun's concurring opinion makes clear that the burden to "articulate,
and support, a reasoned and significant basis" for the governmental
regulation should not be viewed as de minimis, even when the regulation
is subjected to intermediate scrutiny. Id. at 77, 101 S. Ct. 2176; see also
Geoffrey R. Stone, Content-Neutral Restrictions, 54 U. Chi. L. Rev. 46,
52-53 (1987) (describing intermediate scrutiny as a test that "takes
seriously the inquiries into the substantiality of the governmental interest
and the availability of less restrictive alternatives.").
With the Supreme Court precedent as a guide, we examine whether the government
has shown that its proffered interest is sufficiently furthered by application
to these defendants of the damages provisions of the Wiretapping Acts to
justify the impingement on the protected First Amendment interests at stake.
As noted above, the United States contends that the Wiretapping Acts serve
the government's interest in protecting privacy by helping "maintain
the confidentiality of wire, electronic, and oral communications."
United States' Br. at 33. Undoubtedly, this is a significant state interest.
We do not understand the defendants to deny that there is an important governmental
interest served by the Wiretapping Acts. However, the government recognizes
that not all of the provisions of the Wiretapping Acts are being challenged.
In fact, only a portion of those Acts are at issue here-the provisions imposing
damages and counsel fees for the use and disclosure of intercepted material
on those who played no part in the interception.
The United States asserts that these provisions protect the confidentiality
of communications in two ways: (1) "by denying the wrongdoer the fruits
of his labor" and (2) "by eliminating the demand for those fruits
by third parties." United States' Br. at 33. In this case, however,
there is no question of "denying the wrongdoer the fruits of his labor."
The record is devoid of any allegation that the defendants encouraged or
participated in the interception in a way that would justify characterizing
them as "wrongdoers." Thus, the application of these provisions
to penalize an individual or radio stations who did participate in the interception
and thereafter disclosed the intercepted material is not before us.
We therefore focus on the United States' second contention-that the provisions
promote privacy by eliminating the demand for intercepted materials on the
part of third parties. The connection between prohibiting third parties
from using or disclosing intercepted material and preventing the initial
interception is indirect at best. The United States has offered nothing
other than its ipse dixit in support of its suggestion that imposing the
substantial statutory damages provided by the Acts on Yocum or the media
defendants will have any effect on the unknown party who intercepted the
Bartnicki-Kane conversation. Nor has the United States offered any basis
for us to conclude that these provisions have deterred any other would-be
interceptors.5 Given the indirectness of the manner in which the United
States claims the provisions serve its interest, we are not prepared to
accept the United States' unsupported allegation that the statute is likely
to produce the hypothesized effect. See Landmark Communications, Inc. v.
Virginia, 435 U.S. 829, 841, 98 S. Ct. 1535, 56 L.Ed.2d 1 (1978) ("The
Commonwealth has offered little more than assertion and conjecture to support
its claim that without criminal sanctions the objectives of the statutory
scheme would be seriously undermined."). Faced with nothing "more
than assertion and conjecture," it would be a long stretch indeed to
conclude that the imposition of damages on defendants who were unconnected
with the interception even "peripherally promoted" the effort
to deter interception. See Village of Schaumburg, 444 U.S. at 636, 100 S.
Ct. 826.
When the state seeks to effectuate legitimate state interests,
it must do so by narrowly drawn regulations designed to serve those interests
without unnecessarily interfering with First Amendment freedoms. Hynes v.
Mayor of Oradell, 425 U.S. at 620, 96 S. Ct. 1755; First National Bank of
Boston v. Bellotti, 435 U.S. 765, 786, 98 S. Ct. 1407, 55 L.Ed.2d 707 (1978).
"Broad prophylactic rules in the area of free expression are suspect.
Precision of regulation must be the touchstone . . . ." NAACP v. Button,
371 U.S. 415, 438, 83 S. Ct. 328, 9 L.Ed.2d 405 (1963) (citations omitted).
Village of Schaumburg, 444 U.S. at 637, 100 S. Ct. 826.
In Village of Schaumburg, the Court stated that the Village's legitimate
interest in preventing fraud could be better served by requiring solicitors
to inform the public of the uses made of their contributions, than by prohibiting
solicitation. Id. Similarly, in Martin v. Struthers, 319 U.S. 141, 147-48,
63 S. Ct. 862, 87 L.Ed. 1313 (1943), the Court held that in lieu of a complete
prohibition of door-to-door solicitation, with its draconian impact on First
Amendment values, the City could have used the less restrictive means of
punishing those who trespass "in defiance of the previously expressed
will of the occupant." Indeed, the Wiretapping Acts already provide
for punishment of the offender, i.e., the individual who intercepted the
wire communication and who used or disclosed it. See Schneider, 308 U.S.
at 162, 60 S. Ct. 146 (city should prevent littering by punishing litterers,
not by prohibiting leafleting). Those who indirectly participated in the
interception, either by aiding or abetting, would also fall within the sanctions
provided by the statute. Therefore, the government's desired effect can
be reached by enforcement of existing provisions against the responsible
parties rather than by imposing damages on these defendants.
We are also concerned that the provisions will deter significantly more
speech than is necessary to serve the government's asserted interest. It
is likely that in many instances these provisions will deter the media from
publishing even material that may lawfully be disclosed under the Wiretapping
Acts.
Reporters often will not know the precise origins of information they receive
from witnesses and other sources, nor whether the information stems from
a lawful source. Moreover, defendants argue that they cannot be held liable
for use and publication of information that had previously been disclosed.
Assuming this is so, reporters may have difficulty discerning whether material
they are considering publishing has previously been disclosed to the public.
Such uncertainty could lead a cautious reporter not to disclose information
of public concern for fear of violating the Wiretapping Acts.
Bartnicki and Kane recognize that the Supreme Court has frequently expressed
concern about the "timidity and self-censorship" that may result
from permitting the media to be punished for publishing certain truthful
information. See, e.g., Florida Star, 491 U.S. at 535, 109 S. Ct. 2603;
Cox Broadcasting, 420 U.S. at 496, 95 S. Ct. 1029. The public interest and
newsworthiness of the conversation broadcast and disclosed by the defendants
are patent. In the conversation, the president of a union engaged in spirited
negotiations with the School Board suggested "blow[ing] off [the] front
porches" of the School Board members. Nothing in the context suggests
that this was said in anything other than a serious vein. Certainly, even
if no later acts were taken to follow through on the statement, and hence
no crime committed, the fact that the president of the school teachers'
union would countenance the suggestion is highly newsworthy and of public
significance. Our concerns are only heightened by the Supreme Court's admonition
in Smith that "state action to punish the publication of truthful information
seldom can satisfy constitutional standards." 443 U.S. at 102, 99 S.
Ct. 2667.
Our dissenting colleague does not disagree with any of the applicable legal
principles. He candidly states that the difference between us is one of
"ultimate application of [the agreed upon] analysis to the case at
bar." Dissenting Op. at 130. Therefore, we add only a few brief comments
pertaining to that application.
Evidently, one of the principal differences between our respective applications
lies in the weight we give the factors to be balanced. The dissent suggests
the Supreme Court's decisions in Schneider, Struthers, and Schaumburg are
not pertinent to this case because the state interests in those cases (littered
streets, annoying door-to-door proselytizers,6 and fraudulent charitable
solicitors, respectively) were "not very important." The dissent
contrasts those interests with the significant governmental interest at
issue here-that of maintaining the confidentiality of wire, electronic,
and oral communications.
Presumably, the dissent's point is that we must weigh more heavily the privacy
interests furthered by the Wiretapping Acts than the Court weighed the state
interests in the three cited cases. Given the conceded importance of privacy
and confidentiality at issue here, we nonetheless find it difficult to accord
it more weight than the interests in preventing disclosure of the name of
a rape victim, the identity of a judge in a putative disciplinary proceeding,
or the identity of a youth charged as a juvenile offender at issue in Cox
Broadcasting, Landmark Communications and Smith, respectively. Yet when
faced with each of those circumstances, the Supreme Court determined that
despite the strong privacy interest underlying the statutory and state constitutional
provisions punishing disclosure of such information, the interests served
by the First Amendment must take precedence.7 It would be difficult to hold
that privacy of telephone conversations are more "important" than
the privacy interests the states unsuccessfully championed in those cases.
In addition, we do not share the dissent's confidence that imposition of
civil liability on those who neither participated in nor encouraged the
interception is an effective deterrent to such interception. The dissent
finds such a nexus in the legislative landscape, where half of the states
that prohibit wiretapping also authorize civil damage actions. With due
respect, we find this a slim reed, not only because it appears from the
dissent's statistics that the other half of the states with wiretapping
statutes have not included a damage provision but because the incidence
of state statutes, and hence "widespread legislative consensus,"
does not prove the deterrent effect of the prohibition. Indeed, there is
not even general agreement as to the deterrent effect of a criminal statute
on the perpetrator,8 much less on those who were not in league with the
perpetrator. In determining whether a regulation that restricts First Amendment
rights "substantially serves [its asserted] purposes," see Grace,
461 U.S. at 182, 103 S. Ct. 1702, the Court has never found that question
satisfied by sheer numbers of state statutes.
The dissent engages in hyperbole when it suggests that our decision "invalidates
a portion of the federal statute" and "by necessary implication
spells the demise of a portion of more than twenty other state statutes."
Dissenting Op. at 134. The statutes, which are designed to prohibit and
punish wiretapping, remain unimpaired. All that is at issue is the application
of those statutes to punish members of the media who neither encouraged
nor participated directly or indirectly in the interception, an application
rarely attempted.
Moreover, we do not agree that the recent decision in Boehner v. McDermott,
191 F.3d 463 (D.C. Cir. 1999), presented that court with the same issue
presented here. Most particularly, in Boehner, where a divided court upheld
the constitutionality of § 2511(1)(c), all three judges emphasized
in their separate opinions that there was no effort to impose civil damages
on the newspapers (The New York Times, et al.) which had printed the details
of a conversation that been [sic] illegally intercepted. Thus, for example,
in the lead opinion the court stated at the outset, "[n]or should we
be concerned with whether § 2511(1)(c) would be constitutional as applied
to the newspapers who published the initial stories about the illegally-intercepted
conference call." Id. at 467. Liability in that case was sought to
be imposed on James McDermott, a congressman who caused a copy of the tape
to be given to the newspapers. Although technically, defendant Yocum in
our case stands in the same position as McDermott, i.e. as the source but
not the interceptor, there is an indication in Boehner that McDermott was
more than merely an innocent conduit. Indeed, McDermott, unlike Yocum, knew
who intercepted the conversation because he "accepted" the tape
from the interceptors and, the opinion suggests, not only sought to embarrass
his political opponents with the tape but also promised the interceptors
immunity for their illegal conduct. Id. at 475-76. In fact, the second judge,
who concurred in the judgment and in only a portion of the opinion for the
court, specifically limited his concurrence to the decision that §
2511(1)(c) "is not unconstitutional as applied in this case,"
id. at 478 (emphasis added), and pointed out that "McDermott knew the
transaction was illegal at the time he entered into it," id. at 479.
In contrast, Yocum has not been shown to have "entered into" any
transaction with the interceptors. In the posture of this case, all parties
accept his allegation that the tape was left in his mailbox.
The Boehner court was acutely aware that no court has yet held that the
government may punish the press through imposition of damages merely for
publishing information of public significance because its original source
acquired that information in violation of a federal or state statute. Cf.
Landmark, 435 U.S. at 837, 98 S. Ct. 1535 (finding it unnecessary to adopt
categorical approach). As noted earlier in this opinion, the Supreme Court
has been asked to permit a state to penalize the publication of truthful
information in at least four instances. In three of the four cases, the
statutes at issue protected the privacy interests of such vulnerable individuals
as juveniles and the victims of sexual assault. See Florida Star, 491 U.S.
at 526, 109 S. Ct. 2603; Smith, 443 U.S. at 98, 99 S. Ct. 2667; Cox Broadcasting,
420 U.S. at 472, 95 S. Ct. 1029. In the remaining case, the statute at issue
was meant to protect the state's interest in an independent and ethical
judiciary. See Landmark, 435 U.S. at 830, 98 S. Ct. 1535. Despite the strength
of the state interests asserted, the Supreme Court in each case concluded
that those interests were insufficient to justify the burdens imposed on
First Amendment freedoms.
We likewise conclude that the government's significant interest in protecting
privacy is not sufficient to justify the serious burdens the damages provisions
of the Wiretapping Acts place on free speech. We are skeptical that the
burden these provisions place on speech will serve to advance the government's
goals. Even assuming the provisions might advance these interests, the practical
impact on speech is likely to be "substantially broader than necessary."
Ward v. Rock Against Racism, 491 U.S. 781, 800, 109 S. Ct. 2746, 105 L.Ed.2d
661 (1989).
We therefore hold that the Wiretapping Acts fail the test of intermediate
scrutiny and may not constitutionally be applied to penalize the use or
disclosure of illegally intercepted information where there is no allegation
that the defendants participated in or encouraged that interception. It
follows that we need not decide whether these provisions leave open ample
alternative channels for communication of information.
III.
CONCLUSION
For the reasons set forth, we will reverse the order of the District Court
denying summary judgment to the defendants, and will remand with directions
to grant that motion.
* Hon. Louis H. Pollak, United States District Court for the Eastern District
of Pennsylvania, sitting by designation.
1 Respected commentators have taken issue with this holding in O'Brien.
See, e.g., Lawrence H. Tribe, American Constitutional Law, § 312-6
at 824-25 (2d ed. 1988).
2 The complaint also alleges that Yocum "obtained a tape of the surreptitiously
recorded telephone conversation," App. at 149, but the complaint does
not allege that the mere obtaining of the tape violates either statute.
3 This standard is little different from that announced in O'Brien as governing
conduct regulations that incidentally restrict expressive behavior. See
Clark, 468 U.S. at 298, 104 S. Ct. 3065.
4 In a recent article, the author uses the term "'intermediate scrutiny'
to refer to a test that requires a state interest which is greater than
legitimate but less than compelling and a fit between means and end that
is not necessarily narrowly tailored but has more than just an incidental
connection." Jay D. Wexler, Defending the Middle Way: Intermediate
Scrutiny as Judicial Minimalism, 66 Geo. Wash. L.Rev. 298, 300 n. 15 (1998).
5 As the Supreme Court recently emphasized in invalidating a prohibition
on the receipt of honoraria by government employees, "[w]hen the government
defends a regulation on speech . . . it must do more than simply 'posit
the existence of the disease sought to be cured.' . . . It must demonstrate
that the recited harms are real, not merely conjectural, and that the regulation
will in fact alleviate these harms in a direct and material way." United
States v. National Treasury Employees Union, 513 U.S. 454, 475, 115 S. Ct.
1003, 130 L.Ed.2d 964 (1995) (citation and internal quotation omitted) (emphasis
added).
6 The dissent fails to mention that one of the purposes for the ordinance
referred to by the Court in Struthers was crime prevention. See 319 U.S.
at 144-45, 63 S. Ct. 862.
7 Although we acknowledge that those decisions arose from a stricter level
of scrutiny than we employ here and somewhat different circumstances, the
fact remains that the Court has generally tilted for the First Amendment
in the tension between press freedom and privacy rights. This is bemoaned
by the dissenting Justices in The Florida Star, who state candidly they
"would strike the balance rather differently." 491 U.S. at 552,
109 S. Ct. 2603 (White, J., dissenting). So, apparently, would the dissent
in this case.
8 The opposing views of deterrence were noted in connection with capital
punishment in Chief Justice Burger's dissenting opinion in Furman v. Georgia,
408 U.S. 238, 395-96, 92 S. Ct. 2726, 33 L.Ed.2d 346 (1972).
POLLAK, District Judge, dissenting.
The Court of Appeals for the District of Columbia Circuit has recently determined,
in Boehner v. McDermott, 191 F.3d 463 (D.C. Cir. 1999), that the First Amendment
does not bar a civil damage action brought, pursuant to 18 U.S.C. §
2511(1)(c) and 18 U.S.C. § 2520(a), and pursuant to the Florida statutory
provisions that are counterparts of the federal statute, against one who,
so the plaintiff alleged, gave to the New York Times and other newspapers
copies of a tape recording of a telephone conversation which the defendant
had "knowledge and reason to know" had
been unlawfully intercepted.1 Today this court holds that the First Amendment
does bar a civil damage action brought, pursuant to the Federal statute
and its Pennsylvania counterpart, against (1) one who handed over a copy
of a taped telephone conversation to a radio reporter, and (2) the radio
reporter and the two radio stations that subsequently broadcast the tape,
plaintiffs having alleged that both the person who handed over the tape
and the radio reporter had, in the statutory language, "reason to know"
that the taped conversation had been intercepted in contravention of the
federal and Pennsylvania statutes. In the case decided today the court addresses
a broader range of issues then those presented in Boehner v. McDermott:
in Boehner v. McDermott the only defendant was the person who allegedly
delivered to the media a copy of a tape of an allegedly wrongfully intercepted
telephone conversation; in today's case there are three "media defendants"
in addition to the defendant who allegedly delivered to the media a copy
of a tape of an allegedly wrongfully intercepted telephone conversation.2
I am in general agreement with the careful analytic path traced by the court
through the minefield of First Amendment precedents. However, I find myself
in disagreement with the court's ultimate application of its analysis to
the case at bar.
Accordingly, I respectfully dissent.3
I.
I agree with the court's statement of the case. And I agree with the court's
determination that the challenged federal and Pennsylvania wiretapping statutes-here
invoked by plaintiffs seeking damages for defendants' alleged disclosure
and use of a taped telephone conversation of plaintiffs that defendants
allegedly had "reason to know" was the product of a prohibited
"interception of a wire . . . communication," 18 U.S.C. §
2511(c); 18 Pa. Cons. Stat. § 5703(2)-are "content neutral."
I further agree with the court that the proper standard to be applied in
testing the constitutionality of the federal and Pennsylvania statutes as
here applied is "intermediate scrutiny." Finally, I agree with
the court that intermediate scrutiny "always encompasses some balancing
of the state interest and the means used to effectuate that interest."
Op., p. 124. Concretely, such scrutiny calls for judicial assessment of
whether the challenged regulation is "narrowly tailored to serve a
significant governmental interest." Clark v. Community for Creative
Non-Violence, 468 U.S. 288, 293, 104 S. Ct. 3065, 82 L.Ed.2d 221 (1984).4
Where I part company with the court is in its application of intermediate
scrutiny in this case.
A.
The court begins by acknowledging what I take to be beyond dispute: namely,
that the professed governmental interest-the interest of the United States
(which is presumably also Pennsylvania's interest) in "maintain[ing]
the confidentiality of wire, electronic, and oral communications,"
Brief for the United States, p. 33-is "a significant state interest."
Op., supra, p. 125. Then-evidently with a view to exploring whether the
challenged prohibition on disclosure or use of a conversation by one who
had "reason to know" that the conversation was intercepted unlawfully
is "narrowly tailored to serve [that] significant governmental interest"-the
court undertakes to "focus on the United States' . . . contention .
. . that the provisions promote privacy by eliminating the demand for intercepted
materials on the part of third parties." Op., p. 125. The court then
proceeds as follows:
The connection between prohibiting third parties from using or disclosing
intercepted material and preventing the initial interception is indirect
at best. The United States has offered nothing other than its ipse dixit
in support of its suggestion that imposing the substantial statutory damages
provided by the Acts on Yocum or the media defendants will have any effect
on the unknown party who intercepted the Bartnicki-Kane conversation. Nor
has the United States offered any basis for us to conclude that these provisions
have deterred any other would-be interceptors. Given the indirectness of
the manner in which the United States claims the provisions serve its interest,
we are not prepared to accept the United States' unsupported allegation
that the statute actually produces the hypothesized effect. See Landmark
Communications, Inc. v. Virginia, 435 U.S. 829, 841, 98 S. Ct. 1535, 56
L.Ed.2d 1 (1978) ("The Commonwealth has offered little more than assertion
and conjecture to support its claim that without criminal sanctions the
objectives of the statutory scheme would be seriously undermined.").
Faced with nothing "more than assertion and conjecture," it would
be a long stretch indeed to conclude that the imposition of damages on defendants
who were unconnected with the interception even "peripherally promoted"
the effort to deter interception. See Village of Schaumburg, 444 U.S. at
636, 100 S. Ct. 826.
When the state seeks to effectuate legitimate state interests,
it must do so by narrowly drawn regulations designed to serve those interests
without unnecessarily interfering with First Amendment freedoms. Hynes v.
Mayor of Oradell, 425 U.S. at 620, 96 S. Ct. 1755; First National Bank of
Boston v. Bellotti, 435 U.S. 765, 786, 98 S. Ct. 1407, 55 L.Ed.2d 707 (1978).
"Broad prophylactic rules in the area of free expression are suspect.
Precision of regulation must be the touchstone . . . ." NAACP v. Button,
371 U.S. 415, 438, 83 S. Ct. 328, 9 L.Ed.2d 405 (1963) (citations omitted).
Village of Schaumburg, 444 U.S. at 637, 100 S. Ct. 826.
In Village of Schaumburg, the Court stated that the Village's legitimate
interest in preventing fraud could be better served by requiring solicitors
to inform the public of the uses made of their contributions, than by prohibiting
solicitation. Id. Similarly, in Martin v. Struthers, 319 U.S. 141, 147-48,
63 S. Ct. 862, 87 L.Ed. 1313 (1943), the Court held that in lieu of a complete
prohibition of door-to-door solicitation, with its draconian impact on First
Amendment values, the City could have used the less restrictive means of
punishing those who trespass "in defiance of the previously expressed
will of the occupant." Indeed, the Wiretapping Acts already provide
for punishment of the offender, i.e., the individual who intercepted the
wire communication and who used or disclosed it. See Schneider, 308 U.S.
at 162, 60 S. Ct. 146 (city should prevent littering by punishing litterers,
not by prohibiting leafleting). Those who indirectly participated in the
interception, either by aiding or abetting, would also fall within the sanctions
provided by the statute. Therefore, the government's desired effect can
be reached by enforcement of existing provisions against the responsible
parties rather than by imposing damages on these defendants.
Op. p. 125-27.
With all respect, I find this portion of the court's opinion unpersuasive:
First: I take issue with the proposition that "[t]he connection between
prohibiting third parties from using or disclosing intercepted material
and preventing the initial interception is indirect at best." "[P]reventing
the initial interception" is only part of the statutory scheme. The
statutory purposes, as the court has noted, are "(1) protecting the
privacy of wire and oral communications, and (2) delineating on a uniform
basis the circumstances and conditions under which the interception of wire
and oral communications may be authorized." S. Rep. No. 90-1097 (1968),
reprinted in 1968 U.S.C.C.A.N. 2112, 2153. Unauthorized interception of
a communication is prohibited-and made both a criminal offense and an event
giving rise to civil liability-both to protect parties to a communication
from an initial trespass on their privacy and to protect them from subsequent
disclosure (and/or other detrimental use). "Unless disclosure is prohibited,
there will be an incentive for illegal interceptions; and unless disclosure
is prohibited, the damage caused by an illegal interception will be compounded.
It is not enough to prohibit disclosure only by those who conduct the unlawful
eavesdropping. One would not expect them to reveal publicly the contents
of the communication; if they did so they would risk incriminating themselves.
It was therefore 'essential' for Congress to impose upon third parties,
that is, upon those not responsible for the interception, a duty of non-disclosure."
Boehner v. McDermott, 191 F.3d at 470.
Second: Given the close nexus between the legislative prohibition on unauthorized
interception and the legislative imposition upon "third parties, that
is, upon those not responsible for the interception, [of] a duty of non-disclosure,"
I am puzzled by the court's view that the argument presented by the United
States in support of the statutory regime of civil liability lacks persuasiveness
because it is not supported by a demonstration that "imposing the substantial
statutory damages provided by the Acts on Yocum or the media defendants
will have any effect on the unknown party who intercepted the Bartnicki-Kane
conversation," or "that these [statutory] provisions have deterred
any other would-be interceptors." Nor do I think the court's view is
buttressed by the court's invocation of Landmark Communications, Inc. v.
Virginia, 435 U.S. 829, 98 S. Ct. 1535, 56 L.Ed.2d 1 (1978). It is true
that in Landmark, in which the Supreme Court struck down, as applied to
a newspaper, a statute making it a misdemeanor to "divulge information"
about confidential proceedings conducted by Virginia's Judicial Inquiry
and Review Commission, the Court observed that "[t]he Commonwealth
has offered little more than assertion and conjecture to support its claim
that without criminal sanctions the objectives of the statutory scheme [which
contemplated a process of confidential inquiry into alleged judicial misconduct]
would be seriously undermined." But the special-and limited- pertinence
of the Court's observation becomes clear when it is read in context. The
full paragraph follows:
It can be assumed for purposes of decision that confidentiality of Commission
proceedings serves legitimate state interests. The question, however, is
whether these interests are sufficient to justify the encroachment on First
Amendment guarantees which the imposition of criminal sanctions entails
with respect to nonparticipants such as Landmark. The Commonwealth has offered
little more than assertion and conjecture to support its claim that without
criminal sanctions the objectives of the statutory scheme would be seriously
undermined. While not dispositive, we note that more than 40 States having
similar commissions have not found it necessary to enforce confidentiality
by use of criminal sanctions against nonparticipants.
435 U.S. at 841, 98 S. Ct. 1535. In striking contrast is the legislative
landscape that forms the setting of the case at bar. Complementing the federal
statute are more than forty state wiretapping statutes. Of these state statutes,
approximately half have provisions which, like the federal statute, (1)
prohibit disclosure or use of an intercepted conversation by one who knows
or has "reason to know" that the interception was unlawful, and
(2) authorize civil damage actions against one who discloses or uses such
unlawful interception. As this case illustrates, Pennsylvania is one of
those states. So are Delaware and New Jersey- Pennsylvania's Third Circuit
siblings. See 11 Del. Code Ann., § 1336 (1996); N.J. Stat. Ann. §§
2A-156-A-3; 2A-156-A-24 (West 1985 & Supp. 1999). Listed in footnote
5 are the other state statutes that closely parallel the provisions of the
federal and Pennsylvania legislation challenged by defendants in the case
at bar.5
In short, there appears to be a widespread legislative consensus that the
imposition of civil liability on persons engaged in conduct of the kind
attributed to these defendants is an important ingredient of a regime designed
to protect the privacy of private conversations. Moreover, the decision
announced today not only invalidates a portion of the federal statute and
the counterpart portion of the Pennsylvania statute, it by necessary implication
spells the demise of a portion of more than twenty other state statutes
(and also of a statute of the District of Columbia); in the two centuries
of our constitutional history there cannot have been more than a handful
of prior decisions, either of a federal court or of a state court, which,
in the exercise of the awesome power of judicial review, have cut so wide
a swath.
Third: What has been said points up the non-pertinence to the case at bar
of Schneider v. State, 308 U.S. 147, 60 S. Ct. 146, 84 L.Ed. 155 (1939),
Martin v. Struthers, 319 U.S. 141, 63 S. Ct. 862, 87 L.Ed. 1313 (1943),
and Village of Schaumburg v. Citizens for a Better Environment, 444 U.S.
620, 100 S. Ct. 826, 63 L.Ed.2d 73 (1980), cases cited by the court as illustrative
of the proposition that regulations designed to promote significant governmental
interests should not sweep so broadly as to impose unnecessary constraints
on First Amendment rights of free expression and communication. The constitutional
shortcomings in Schneider (combating the littering of streets by curbing
leafleting), Struthers (banning door-to-door distribution of circulars,
including religious literature, in order to protect homeowners from annoyance),
and Village of Schaumburg (combating allegedly fraudulent charitable solicitation
by banning all solicitation by groups not disbursing 75% of receipts) involved
situations in which small towns imposed on traditional First Amendment activities
pervasive constraints sought to be justified as ways of dealing with distinct
(and not very important) problems that could have been more effectively
addressed by governmental action directed at the actual problems-e.g., prosecuting
litterers (Schneider); prosecuting as trespassers solicitors who do not
depart when requested by homeowners to do so (Struthers); requiring organizations
soliciting contributions to disclose how receipts are used (Village of Schaumburg).
In the case at bar, unauthorized disclosure (or other use) of private conversations
is a central aspect of the very evil the challenged statutory provisions
are designed to combat.
B.
The court also notes that "[r]eporters often will not know the precise
origins of information they receive from witnesses and other sources, nor
whether the information stems from a lawful source," or, indeed, "whether
material they are considering publishing has previously been disclosed to
the public." Op., p. 127, As a result, the court opines, "[i]t
is likely that in many instances these [challenged statutory] provisions
will deter the media from publishing even material that may lawfully be
disclosed under the Wiretapping Acts." Ibid.
I think the court overstates the potential problems of the media. One would
suppose that a responsible journalist-whether press or broadcast-would be
unlikely to propose publication of a transcript of an apparently newsworthy
conversation without some effort to insure that the conversation in fact
took place and to authenticate the identities of the parties to the conversation.
As part of such an inquiry, the question whether the parties to the conversation
had authorized its recording and release, or whether others had lawfully
intercepted the conversation, would seem naturally to arise. Moreover, current
technology would make it relatively easy to determine whether the conversation
had been the subject of a prior press or broadcast report.6
In my judgment, a more substantial First Amendment difficulty is posed by
the fact that the person or entity charged with knowing or having "reason
to know" that a published conversation was unlawfully intercepted is
called on to contest before a judicial fact-finder (whether jury or judge)
a plaintiff's allegation of knowledge or "reason to know." But
the difficulties attendant on fact-finder oversight of journalistic practice
(or, indeed, of public disclosure by non-journalists) can, I believe, be
met by adoption of the procedural proposals advanced in the brief for the
United States:
In criminal prosecutions under Title III, scienter must be proved beyond
a reasonable doubt. In civil cases scienter ordinarily would be subject
to a conventional preponderance-of-the-evidence standard. When a claim is
brought for disclosure of information about matters of public significance
by persons who were not involved in the illegal interception, however, a
preponderance-of-the-evidence standard may operate to deter the publication
of information that was not the product of illegal surveillance. To avoid
that result, it might prove appropriate for district courts to impose a
higher standard of proof of scienter in such cases, such as proof by "clear
and convincing" evidence, and for appellate courts to conduct independent
review of the findings of the trier of fact. Cf. Gertz v. Robert Welch,
Inc., 418 U.S. 323, 342, 94 S. Ct. 2997, 41 L.Ed.2d 789 (1974) (requiring
clear and convincing evidence of "actual malice" in defamation
cases); Bose Corp. v. Consumers Union of United States, Inc., 466 U.S. 485,
498-511, 104 S. Ct. 1949, 80 L.Ed.2d 502 (1984) (de novo appellate review
of findings regarding actual malice). See generally Waters v. Churchill,
511 U.S. 661, 669-71, 114 S. Ct. 1878, 128 L.Ed.2d 686 (1994) (plurality
opinion) (discussing circumstances in which First Amendment requires modifications
of burdens of proof and other procedural rules).
Brief for the United States, pp. 40-41 n. 8.7
II.
As the court's opinion makes plain, the First Amendment values of free speech
and press are among the values most cherished in the American social order.
Maintenance of these values (and the other values of the Bill of Rights)
against overreaching by the legislature or the executive is among the judiciary's
major and most demanding responsibilities. In the case at bar, however,
the First Amendment values on which defendants take their stand are countered
by privacy values sought to be advanced by Congress and the Pennsylvania
General Assembly that are of comparable -indeed kindred-dimension. Three
decades ago the late Chief Judge Fuld of the New York Court of Appeals put
the matter well in Estate of Hemingway v. Random House, 23 N.Y.2d 341, 348,
296 N.Y.S.2d 771, 244 N.E.2d 250, 255 (1968) (in words that the Supreme
Court has quoted with approval, Harper & Row Publishers v. Nation Enterprises,
471 U.S. 539, 560, 105 S. Ct. 2218, 85 L.Ed.2d 588 (1985)):
The essential thrust of the First Amendment is to prohibit improper restraints
on the voluntary public expression of ideas; it shields the man who wants
to speak or publish when others wish him to be quiet. There is necessarily,
and within suitably defined areas, a concomitant freedom not to speak publicly,
one which serves the same ultimate end as freedom of speech in its affirmative
aspect.
1 In Boehner v. McDermott, the plaintiff, John Boehner, is a Republican
Representative who, together with other members of the Republican leadership
of the House of Representatives (including then Speaker Gingrich), was in
1996 party to a conference telephone call that was unlawfully intercepted
by persons equipped with a radio scanner. According to Representative Boehner's
complaint, the interceptors turned over the tape to James A. McDermott,
a Democratic Representative who was at the time the ranking minority member
of the House Ethics Committee; Representative McDermott in turn gave copies
of the tape to the New York Times and other newspapers; and the New York
Times promptly published part of the taped conversation. Representative
Boehner sued Representative McDermott, but did not sue the New York Times
or any other newspaper. The district court dismissed Representative Boehner's
complaint on First Amendment grounds. The circuit court reversed.
The circuit court perceived a potentially important distinction between
Representative McDermott's First Amendment claim and the First Amendment
claim that might have been made by the New York Times or another newspaper,
if a newspaper had been named as a defendant. Identifying that potential
distinction, the court was at pains to confine its analysis to Representative
McDermott's claim:
McDermott's liability under § 2511(1)(c) rests on the truth of two
allegations: that he "caused a copy of the tape" to be given to
the newspapers; and that he "did so intentionally and with knowledge
and reason to know that the recorded phone conversation had been illegally
intercepted (as the cover letter on its face disclosed)." Complaint
¶ 20. Although the circumstances of McDermott's transactions with the
newspapers, including who said what to whom, may become evidence at trial,
it is his conduct in delivering the tape that gives rise to his potential
liability under § 2511(1)(c). McDermott's behavior in turning over
the tapes doubtless conveyed a message, expressing something about him.
All behavior does. But not all behavior comes within the First Amendment.
"[E]ven on the assumption that there was [some] communicative element
in" McDermott's conduct, the Supreme Court has held that "when
'speech' and 'nonspeech' elements are combined in the same course of conduct,
a sufficiently important governmental interest in regulating the nonspeech
element can justify incidental limitations on First Amendment freedoms."
United States v. O'Brien, 391 U.S. 367, 376, 88 S. Ct. 1673, 20 L.Ed.2d
672 (1968). The O'Brien framework is the proper mode of First Amendment
analysis in this case. McDermott's challenge is only to the statute as it
applies to his delivery of the tape to newspapers. Whether a different analysis
would govern if, for instance, McDermott violated § 2511(1)(c) by reading
a transcript of the tape in a news conference, is therefore a question not
presented here. Nor should we be concerned with whether § 2511(1)(c)
would be constitutional as applied to the newspapers who published the initial
stories about the illegally-intercepted conference call. The focus must
be on McDermott's activity and on his activity alone.
191 F.3d at 467.
The author of the court's opinion was Judge Randolph. Judge Ginsburg filed
a concurring opinion, joining part (including the paragraphs just quoted)
of Judge Randolph's opinion. Judge Santelle [sic] filed a dissenting opinion.
2 The Boehner v. McDermott court was at pains to point out the limited scope
of its ruling. See note 1, supra. See also note 3, infra.
3 Although I have expressed general agreement with the court's analytic
approach, I should note one aspect of the analysis on which I differ with
the court. That aspect is cogently illustrated by the distinction the Boehner
v. McDermott court drew between the First Amendment posture of Representative
McDermott and the potential First Amendment posture of a newspaper that
published (as the New York Times in fact did) a portion of the intercepted
telephone conference call, had such a newspaper been sued. As the Boehner
v. McDermott excerpt quoted in footnote 1, supra, makes clear, the court
was doubtful that Representative McDermott's action in giving copies of
the tape to newspapers was itself "speech" in the full First Amendment
sense. Judge Randolph, speaking for the court, saw Representative McDermott's
First Amendment claim as cabined by the Supreme Court's holding in United
States v. O'Brien, 391 U.S. 367, 376, 88 S. Ct. 1673, 20 L.Ed.2d 672 (1968),
that "when 'speech' and 'nonspeech' elements are combined in the same
course of conduct, a sufficiently important governmental interest in regulating
the nonspeech element can justify incidental limitations on First Amendment
freedoms."
In the case at bar, in which the plaintiffs have sued both Yocum and media
defendants, the United States argues that the approach reflected in O'Brien
and cases that follow it is appropriate to the entire case. The court rejects
that view. I find the Boehner v. McDermott exposition of Representative
McDermott's limited First Amendment posture persuasive, and thus in the
case at bar I would apply the O'Brien approach to defendant Yocum-whose
role, from a First Amendment perspective, seems analogous to that of Representative
McDermott-while rejecting O'Brien as the proper approach to the First Amendment
claims of the media defendants. However, the distinction is not one that
I need pursue, because, accepting for the purposes of the case at bar the
court's comprehensive rejection of O'Brien, I nonetheless wind up disagreeing
with the court on how the court's analytic approach plays out as applied,
with the result that I conclude that liability in damages could constitutionally
have been imposed both on Yocum and on the media defendants if the plaintiffs
had been permitted to take their case to trial and had proved their allegations
to the satisfaction of the fact-finder.
4 The other criterion identified in Clark v. Community for Creative Non-Violence-namely,
whether the challenged regulation "leave[s] open ample alternative
channels for communication of the information" 468 U.S. at 293, 104
S. Ct. 3065-is not pertinent to the case at bar because the challenged statutes
are not, as the challenged regulations in Clark v. Community for Creative
Non-Violence were deemed to be, "time, place or manner restrictions."
Ibid. And see id. at 295, 104 S. Ct. 3065.
5 Fla. Stat. Ann. §§ 934.03, 812.15; Haw. Rev. Stat. §§
803-42(a)(3), 803-48; Idaho Code §§ 18-6702, 18-6709; 720 Ill.
Comp. Stat. Ann. 5/14-2, 5/14-6; Iowa Code §§ 808B.2(1)(c), 808B.8;
La. Rev. Stat. Ann. §§ 15:1303 A(3), 15:1312; Md. Code Ann. §§
10-402(a)(2), 10-410; Mich. Comp. Laws Ann. §§ 750.539e, 750.539h;
Minn. Stat. Ann. §§ 626A.02(c), 626A.13; Neb. Rev. Stat. §§
86-702; N.H. Rev. Stat. Ann. §§ 570-A:2, 570-A:11; N.C. Gen. Stat.
§§ 15A-287, 15A-296; Ohio Rev. Code Ann. §§ 2933.52,
2933.65; Tenn. Code Ann. §§ 39-13-601, 39-13-603; Utah Code Ann.
§§ 77-23a-4, 77-23a-11; Va. Code Ann. §§ 19.2-62, 19.2-69;
W. Va. Code §§ 62-1D-3, 62-1D-12; Wis. Stat. § 968.31; Wyo.
Stat. Ann. §§ 7-3-602, 7-3-609; See also D.C. Code Ann. §§
23-542, 23-554.
6 On occasion, inquiry of the kind suggested might indeed take a few days.
But news reporting-especially with respect to events (such as a conversation)
that are concluded, rather than still evolving-need not be an instant process.
In the case at bar, it appears that defendant Vopper did not broadcast the
conversation until some months after defendant Yocum gave him a copy of
the tape. Deposition of Frederick W. Vopper, App. 60a-61a. On the other
hand, the New York Times published a portion of the intercepted conversation
that gave rise to Boehner v. McDermott the day after it received the tape.
The New York Times story also reported that the tape had been "made
. . . available to the New York Times" by "a Democratic Congressman
hostile to Mr. Gingrich who insisted that he not be identified further"
and who told the Times that the tape had been given to him [on January 8,
1997] by a couple who said the tape "had been recorded [on December
21, 1996] off a radio scanner, suggesting that one participant was using
a cellular telephone." N.Y. Times, January 10, 1997, p. 1, col.3.
7 The court's decision has the anomalous consequence of cloaking Yocum,
who is not a "media defendant", with the First Amendment protections
the court deems appropriate for radio reporter Vopper and the two radio
stations. I have undertaken to explain in footnote 3, supra, that in my
judgment Yocum has a far more tenuous First Amendment claim (if any) than
the media defendants. I do not think that, merely by virtue of the fortuity
that the plaintiffs have elected to sue Yocum and the media defendants (which
the plaintiff in Boehner v. McDermott did not do), Yocum becomes a third-party
beneficiary of whatever First Amendment protections may accrue to the media
defendants.
APPENDIX B
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
CIVIL NO. 3:CV-94-1201
(Judge Kosik)
GLORIA BARTNICKI AND ANTHONY F. KANE, JR., PLAINTIFFS
v.
FREDERICK W. VOPPER, A/K/A FRED WILLIAMS,
KEYMARKET OF NEPA, INC., D/B/A WILK RADIO,
LACKAZERNE, INC., D/B/A WGBI RADIO, JANE DOE AND JOHN DOE, AND JACK YOCUM,
DEFENDANTS
[Filed: June 17, 1995]
MEMORANDUM
Before the court are respective motions for summary judgment filed by Plaintiffs
Bartnicki and Kane; Defendant Yocum; and Defendants Frederick Vopper, a/k/a
Fred Williams; Keymarket of NEPA, Inc., d/b/a WILK Radio; and Lackazerne,
Inc., d/b/a WGBI Radio (Media Defendants). The matter involves allegations
of violations of Title III of the Omnibus Crime Control and Safe Streets
Act of 1968, 18 U.S.C. §§ 2511, 2520, and the Pennsylvania Wiretapping
and Electronic Surveillance Control Act, 18 Pa. Con. Stat. Ann. § 5701
et seq. [hereinafter electronic surveillance acts]. For the following reasons,
we deny the motions for summary judgment.
I. Background
Plaintiff Gloria Bartnicki is employed by the Pennsylvania State Education
Association (PSEA) and, at relevant times, was assigned as a negotiator
in a contract dispute between the teachers' union and Wyoming Valley West
School District. Plaintiff Anthony Kane, Jr., was a teacher at Wyoming Valley
West High School and president of the PSEA's local union representing the
teachers of the school district.
During the pendency of the negotiations between the teachers' union and
the school board, a citizens group, Wyoming Valley West Taxpayers Association
(Association), was formed for the purpose of opposing the union's proposals.
Defendant Jack Yocum was president of the Association.
It is represented that the contract negotiations were the regular subject
of the local media.
In May of 1993, Plaintiffs Bartnicki and Kane engaged in a telephone conversation
about the union's demands and the negotiations. The conversation occurred
via a transmission from Plaintiff Bartnicki's cellular car phone and Plaintiff's
Kane conventional household telephone line. The conversation was intercepted
and recorded by an unidentified party. The Plaintiffs allege that the interception
of their communication was intentional, while the Defendants argue that
the interception was inadvertent and unintentional.1
The Defendants' acquisition of the intercepted communication allegedly occurred
as follows. A cassette containing a recording of the conversation was placed
in Defendant Yocum's mailbox without any markings identifying the depositing
party or the person who made the recording. Defendant Yocum played the tape
and recognized the voices as those belonging to the Plaintiffs.
There exists some dispute as to whom Defendant Yocum played the tape, but
it is undisputed that Defendant Yocum provided Defendant Vopper of Defendant
WILK's radio station with the recording. The recording was aired during
Defendant Vopper's radio program.
II. STANDARD OF REVIEW
Rule 56(c) of the Federal Rules of Civil Procedure states:
Summary judgment shall be rendered forthwith if the pleadings, depositions,
answers to interrogatories, and admissions on file together with any affidavits,
if any, show that there is no genuine issue as to any material fact and
that the moving party is entitled to a judgment as a matter of law.2
The Supreme Court has held that Rule 56(c) "mandates the entry of summary
judgment, after adequate time for discovery and upon motion, against a party
who fails to make a showing sufficient to establish the existence of an
element essential to that party's case, and on which that party will bear
the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317,
322, 106 S. Ct. 2548, 2551 (1986). Summary judgment will not lie if the
dispute about a material fact is "genuine," that is, if the evidence
is such that a reasonable jury could return a verdict for the non-moving
party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.
Ct. 2505, 2510 (1986); see also Gile v. Optical Radiation Corp., 22 F.3d
540, 541 (3d Cir.), cert. denied, 115 S. Ct. 429 (1994).
Initially, to support its motion for summary judgment, the moving party
must show the absence of a genuine issue concerning any material fact. Celotex,
477 U.S. at 322-23. Once the moving party has satisfied its burden, the
non-moving party must present "affirmative evidence" to defeat
the motion for summary judgment, consisting of verified or documented materials.
See Lujan v. National Wildlife Fed'n, 497 U.S. 871, 888-89, 110 S. Ct. 3177,
3189 (1990); Anderson, 477 U.S. at 256-57. Mere conclusory allegations or
denials taken from the pleadings are insufficient. Schoch v. First Fidelity,
912 F.2d 654, 657 (3d Cir. 1990) (citations omitted).
In evaluating a motion for summary judgment, the entire record must be examined
in the light most favorable to the non-moving party, giving that party the
benefit of all reasonable inferences derived from the evidence. Torre v.
Casio, Inc., 42 F.3d 825, 830 (3d Cir. 1994); White v. Westinghouse Electric
Company, 862 F.2d 56, 59 (3d Cir. 1988).
III. DISCUSSION
Media Defendants motion this court for the granting of summary judgment
because 1) they did not violate the electronic surveillance acts and 2)
they are protected by the First Amendment.
Media Defendants' first argument is that they did not violate the applicable
statutory provisions. See Document 56 at 12. In moving for summary judgment,
Media Defendants state that the record establishes that Media Defendants
did not intercept or tape the electronic communication between the Plaintiffs.
We agree that there exists no genuine issue as to this fact, but that is
not dispositive of Media Defendants' compliance with the electronic surveillance
acts. The federal statute provides that a person violates the act if he
"intentionally discloses, or endeavors to disclose, to any other person
the contents of any wire, oral, or electronic communication, knowing or
having reason to know that the information was obtained through the interception
of a wire, oral, or electronic communication in violation of this subsection."
18 U.S.C. § 2511(1)(c) (1996) (emphasis added). The state electronic
surveillance statute parallels the federal statutory language. See 18 Pa.
Con. Stat. § 5703. Accordingly, a violation of these acts can occur
by the mere finding that a defendant had a reason to believe that the communication
that he disclosed or used was obtained through the use of an illegal interception.
Such an interpretation of the statute adheres to the purpose of the act
which was to protect wire and oral communications and an individual's privacy
interest in such. To allow a third party who is provided access to the intercepted
communications to use the contents of the intercepted communications knowing
or having reason to know that such communications were illegally intercepted
would defeat the purpose of both the federal and state act. See Natoli v.
Sullivan, 606 N.Y.2d 504, 507 (N.Y. Sup. Ct. 1993), aff'd, 616 N.Y.S.2d
318 (N.Y. App. Div. 1994).
In reviewing the record, we believe that there exists a genuine issue as
to a material fact as to whether Media Defendants knew or had reason to
know that the communication was illegally intercepted. See Forsyth v. Barr,
19 F.3d 1527, 1539 (5th Cir.), cert. denied, 115 S. Ct. 195 (1994). Media
Defendants point out that there exists a great likelihood that the conversation
was inadvertently intercepted and recorded, thus outside the scope of both
statutory provisions. See Document 56 at 7-8 (providing circumstances in
which the cellular conversation might have been intercepted unintentionally);
Document 72 at 2 (citing Bayges v. SEPTA, 144 F.R.D. 269, 271-72 (E.D. Pa.
1992), for the proposition that unintentional interceptions do not offend
the statute). On the other hand, the Plaintiffs note that there exists references
within the conversation indicating the confidential nature of the conversation
and the fact that it was being conducted via a cellular telephone, as well
as the relative difficulty in intercepting such a communication. See Document
53 at 7-10; Document 54; Document 68 at 9-13. Therefore, Media Defendants'
motion for summary judgment as it pertains to the argument that they did
not violate the electronic surveillance acts is denied.
Defendant Yocum moves for summary judgment also alleging that he was not
involved in intercepting the communication and that the communication may
have been legally intercepted. See Document 45; Document 49 at 13-18. The
record reflects that Defendant Yocum used and disclosed the contents of
the conversation, as evidenced in his uncontroverted disclosure of the recording
to Media Defendants. In accordance with our analysis of Media Defendants'
argument on this issue, we find that there exists a genuine issue of material
facts as it pertains to Defendant Yocum knowing or having reason to know
that the communications were illegally intercepted. Therefore, it is inappropriate
for us to grant summary judgment to Defendant Yocum on this ground.
Media Defendants also move for summary judgment based on their First Amendment
rights. They assert that the broadcasting of the audiotape which was "newsworthy"
was protected by the First Amendment and therefore was not prohibited by
the electronic surveillance acts.
Media Defendants correctly note that it is well-established that where the
media lawfully obtains truthful information about a matter of public significance
or concern, government officials may not constitutionally punish the publication
of that information absent the need to further a government interest of
a higher order. See Document 56 at 14 (citing Landmark Communications, Inc.
v. Virginia, 435 U.S. 829, 98 S. Ct. 1535 (1978); Smith v. Daily Mail Publishing
Co., 443 U.S. 97, 99 S. Ct. 2667; Florida Star v. B.J.F., 491 U.S. 524,
109 S. Ct. 2603 (1989); Oklahoma Publishing Co. v. United States, 515 F.
Supp. 1255, 1259 (W.D. Ok. 1981)). However, these cases addressed matters
where a state actor attempted to place a prior restraint on specified speech
or where the intentional interception was legal but the disclosure was illegal.
In the matter before this court, there exist no statutory provisions specifically
designed to chill free speech. Rather, at issue is the federal and state
electronic surveillance laws which are general application laws. These surveillance
laws apply equally to the general public and impose no further restrictions
on the media. Accordingly, there exists no indicia of prior restraint or
the chilling of free speech.
The Supreme Court has specifically addressed the constitutionality of general
application laws as they pertain to the media. See Cohen v. Cowles Media
Co., 501 U.S. 663, 668-70, 111 S. Ct. 2513, 2518 (1991). The Supreme Court
in Cohen addressed the imposition of a fine levied against a publisher for
the publication of a confidential informant's identity. The case was analyzed
pursuant to Minnesota's doctrine of promissory estoppel, and the Court deemed
the doctrine as one of general applicability. See id. at 670. The Court,
in distinguishing a similar line of cases that Media Defendants here rely
on, stated that it is "well-established" that generally applicable
laws "do not offend the First Amendment simply because their enforcement
against the press has incidental effects on its ability to gather and report
the news." Id. at 669. The Court recognized that such a statement applies
even when the information obtained was truthful because, as the Court stated,
"it is beyond dispute that the publisher of a newspaper has no special
immunity from the application of general laws. He has no special privilege
to invade the rights and liberties of others." Id. at 670 (internal
quotation marks omitted).
In reviewing both the federal and the state electronic surveillance laws,
we conclude that both acts are matters of general applicability. We do not
find that the statutes target or single out the press. We, therefore, deny
Media Defendants' motion for summary judgment as it applies to this argument.
Defendant Yocum, in his motion for summary judgment, additionally argues
that he was a "newsgather" for Media Defendants and therefore
should be afforded the same First Amendment protections. See Document 49
at 19-21. The same analysis applies, and Defendant Yocum's motion for summary
judgment on the basis of the First Amendment also fails.
Plaintiffs Bartnicki and Kane also move this court for summary judgment
because "the pleadings and depositions demonstrate that there are no
disputed material issues of fact regarding the question of whether the Defendants,
Vopper, WILK and Yocum intentionally disclosed and published the surreptitiously
taped telephone conversation between the Plaintiffs, Bartnicki and Kane
without their permission." See Document 40. The Plaintiffs assert that
such a showing demonstrates the Defendants' violation of the electronic
surveillance acts and entitles them to summary judgment. Although the court
agrees that there exists no genuine issue of material fact as it relates
to Defendant Yocum using the communication and disclosing it to Media Defendants
and to Media Defendants' use and disclosure of the communication to its
listening audience, such a showing is insufficient to demonstrate a violation
of the applicable statutes.
The electronic surveillance acts seek to impose both criminal and civil
sanctions on the interception, use, or disclosure of illegally intercepted
electronic communications. However, the acts do not impose criminal or civil
penalties for legally intercepted communications. For instance, the federal
and state electronic surveillance laws do not prohibit the interception,
use, or disclosure of unintentionally intercepted communications. See 18
U.S.C. § 2511 (1995); 18 Pa. Con. Stat. Ann. § 5704 (1995). The
record reveals that there exists a genuine issue of material fact with regard
to whether the communication was illegally intercepted. In addition, there
exists a genuine issue as to whether the Defendants knew or should have
known that the communication was illegally intercepted.
Because the legality of the interception and the Defendants' state of mind
are material facts at issue, we deny the Plaintiff's motion for summary
judgment.
IV. CONCLUSION
We find that there exists genuine issues as to material facts, and we accordingly
deny all the motions for summary judgment.
APPENDIX C
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
CIVIL NO. 3:CV-94-1201
(Judge Kosik)
GLORIA BARTNICKI AND ANTHONY F. KANE, JR., PLAINTIFFS
v.
FREDERICK W. VOPPER, A/K/A FRED WILLIAMS,
KEYMARKET OF NEPA, INC., D/B/A WILK RADIO,
LACKAZERNE, INC., D/B/A WGBI RADIO, JANE DOE AND JOHN DOE, AND JACK YOCUM,
DEFENDANTS
ORDER
AND NOW, this 14th day of June, 1996, IT IS HEREBY ORDERED THAT:
[1] Defendants Frederick Vopper, a/k/a Fred Williams; Keymarket of NEPA,
Inc., d/b/a WILK Radio; and Lackazerne, Inc., d/b/a WGBI Radio's motion
for summary judgment [Document 43] is denied;
[2] Defendant Yocum's motion for summary judgment [Document 45] is denied;
[3] Plaintiffs Bartnicki and Kane's motion for summary judgment [Document
40] is denied; and
[4] a pretrial conference shall be set forthwith.
/s/ EDWIN M. KOSIK
EDWIN M. KOSIK
United States District Judge
1 Both parties have failed to supply any facts regarding the interception.
However, both parties supply the court with theories on the methods of intercepting
cellular communications.
2 Fed. R. Civ. P. 56.
APPENDIX D
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
CIVIL NO. 3:CV-94-1201
(Judge Kosik)
GLORIA BARTNICKI AND ANTHONY F. KANE, JR., PLAINTIFFS
v.
FREDERICK W. VOPPER, A/K/A FRED WILLIAMS,
KEYMARKET OF NEPA, INC., D/B/A WILK RADIO,
LACKAZERNE, INC., D/B/A WGBI RADIO, JANE DOE AND JOHN DOE, AND JACK YOCUM,
DEFENDANTS
[Filed: Nov. 8, 1996]
MEMORANDUM
Before the court is Defendants' motion to reconsider our decision of June
17, 1996, where we denied the cross motions for summary judgment. See Document
73. The matter involves allegations of violations of Title III of the Omnibus
Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2511,
2520, and the Pennsylvania Wiretapping and Electronic Surveillance Control
Act, 18 Pa. Con. Stat. Ann. § 5701 et seq. [hereinafter acts]. For
the following reasons, we deny the motion for reconsideration.
I. STANDARD OF REVIEW
"The purpose of a motion for reconsideration is to correct manifest
errors of law or fact or to present newly discovered evidence." Harsco
Corp. v. Zlotnicki, 779 F.2d 906, 909 (3d Cir. 1985), cert. denied, 476
U.S. 1171 (1986). As one court has noted:
The motion to reconsider would be appropriate where, for example, the Court
has patently misunderstood a party, or has made a decision outside of the
adversarial issues presented to the Court by the parties, or has made an
error not of reasoning but of apprehension. A further basis for a motion
to reconsider would be a controlling or significant change in the law or
facts since the submission of the issue to the Court. Such problems rarely
arise and the motion to reconsider should be equally rare.
Above the Belt, Inc. v. Mel Bohannan Roofing, Inc., 99 F.R.D. 99, 101 (E.D.
Va. 1983).
Parties must remember that a motion for reconsideration is not an appeal.
Therefore, it is improper on a motion for reconsideration for the party
to request "the Court to rethink what it had already thought through-rightly
or wrongly." Id. Thus, a party "must show more than a disagreement
with the court's decision." Panna v. Firstrust Sav. Bank, 760 F. Supp.
432, 435 (D. N. J. 1991).
III. DISCUSSION
Defendants1 motion this court to reconsider our denial of summary judgment
because 1) Plaintiffs were unable to demonstrate the ability to prove at
trial a necessary element of their case, i.e. that the conversation was
intentionally intercepted and therefore illegal and 2) Defendants are protected
by the First Amendment.
First, Defendants contend that Plaintiffs' failed to demonstrate a material
element of their case. Defendants argue that Plaintiffs' were required to
show that the interception of the conversation was not inadvertent, and,
therefore, illegal. We addressed this issue in detail in our previous Order.
Both the federal and state acts impose liability to a user if he "knew
or had reason to know" that the communication was intercepted. See
18 U.S.C. § 2511 (1996); 18 Pa. C.S.A. § 5703. In addressing these
provisions in our previous Order, we stated:
Accordingly, a violation of these acts can occur by the mere finding that
a defendant had a reason to believe that the communication that he disclosed
or used was obtained through the use of an illegal interception. Such an
interpretation of the statute adheres to the purpose of the act which was
to protect wire and oral communications and an individual's privacy interest
in such. To allow a third party who is provided access to the intercepted
communications to use the contents of the intercepted communications knowing
or having reason to know that such communications w[as] illegally intercepted
would defeat the purpose of both the federal and state act.
Document 73 at 5 (citations omitted).
Therefore, a violation of the acts can occur by the mere showing that Defendants
"knew or should have known" that the communication was illegally
intercepted. In our opinion, we stated:
In reviewing the record, we believe that there exists a genuine issue as
to a material fact as to whether Media Defendants knew or had reason to
know that the communication was illegally intercepted. Media Defendants
point out that there exists a great likelihood that the conversation was
inadvertently intercepted and recorded, thus outside the scope of both statutory
provisions. On the other hand, the Plaintiffs note that there exists references
within the conversation indicating the confidential nature of the conversation
and the fact that it was being conducted via a cellular telephone, as well
as the relative difficulty in intercepting such a communication.
Id. at 5-6 (citations omitted).
Remembering that the burden of proof at trial is a preponderance of the
evidence, we find that Plaintiffs have sufficiently demonstrated that Defendants
"knew or should have known" that the communication was intercepted.
As to the illegal element for a violation of the statute, both sides have
offered sufficient theories of how the communication was intercepted. This
goes beyond the mere characterization of unsupported allegations with which
Defendants attempt to classify Plaintiffs' contentions. Accordingly, we
find that there is sufficient evidence on which a reasonable jury could
conclude, by a preponderance of the evidence, that Defendants violated the
acts. As a result, we believe that Plaintiffs have met their burden.
Defendants have also sought reconsideration of our decision denying them
summary judgment pursuant to their First Amendment argument. In seeking
to have us reconsider our decision, Defendants cite a Pennsylvania Supreme
Court decision that held: "Without dispute, it is in the public interest
to have a free press. Thus, the legislature intended for the public interest
and a free press to supersede the interest of an individual whose private
conversation regarding his illegal activities had been lawfully intercepted
and lawfully obtained by a newspaper." Document 80 at 5 (citing Bottger
v. Loverro, 587 A.2d 712, 720-21 (Pa. 1991)) (emphasis added).
We need not discuss this rule because the Pennsylvania Supreme Court's decision
clearly was addressing issues involving the lawful interception and lawful
acquisition of private conversations pertaining to illegal activities. The
focus of this litigation is whether the disclosure was legal pursuant to
the acts. In addition, it is disputed that the alleged illegal conduct,
"a threat to blow-off a porch," was truly a threat of future illegal
activity.
We deny the motions for reconsideration.
APPENDIX E
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
CASE NO. 3:94-CV-01201
(Judge Kosik)
GLORIA BARTNICKI AND ANTHONY F. KANE, JR., PLAINTIFFS
v.
FREDERICK W. VOPPER, A/K/A FRED WILLIAMS,
KEYMARKET OF NEPA, INC., D/B/A WILK RADIO,
LACKAZERNE, INC., D/B/A WGBI RADIO,
AND JACK YOCUM, DEFENDANTS
[Filed: Jan. 7, 1998]
ORDER
IT IS HEREBY CERTIFIED that the Memorandum and Order dated June 14, 1996
denying the Motion for Summary Judgment of the Defendants and the Memorandum
and Order of November 8, 1996 which denied the Defendants' Motion to Reconsider
the June 17, 1996 decision involve controlling questions of law as to which
there is substantial ground for difference of opinion and that an immediate
appeal from the Order will materially advance the ultimate termination of
this litigation. The controlling questions of law are: (1) whether the imposition
of liability on the media Defendants under the Federal Electronic Surveillance
Statute, 18 U.S.C. §§ 2511, 2520 and under the Pennsylvania Wiretapping
and Electronic Surveillance Control Act, 18 Pa. C.S.A. § 5701, et seq.,
solely for broadcasting the newsworthy tape on the Defendant Fred Williams'
radio news/public affairs program, when the tape was illegally intercepted
and recorded by unknown persons who were not agents of Defendants, violates
the First Amendment; and
(2) whether imposition of liability under the aforesaid Federal and Pennsylvania
Electronic Surveillance Statutes on Defendant Jack Yocum solely for providing
the anonymously intercepted and recorded tape to the media Defendants violates
the First Amendment. I make this certification pursuant to 28 U.S.C. §
1292(b).
BY THE COURT:
/s/ EDWIN M. KOSIK
EDWIN M. KOSIK
United States District
Judge
Dated: January 7th, 1998
APPENDIX F
OFFICE OF THE CLERK
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
21400 UNITED STATES COURTHOUSE
601 MARKET STREET
PHILADELPHIA, PA 19106-1790
P. DOUGLAS SISK TELEPHONE
CLERK 215-597-2995
October 6, 1998
Via Facsimile and
Regular Mail
David M. Barasch, Esquire,
U.S. Attorney
Office of United States Attorney
Federal Building
228 Walnut Street
P.O. Box 11754
Harrisburg, PA 17108
RE: Bartnicki v. Vopper
No. 98-7156
Listed for Disposition: October 5, 1998
Dear Mr. Barasch:
The Court wishes to advise you that in the above case the defendants/appellants
argue that insofar as the federal act dealing with electronic surveillance,
18 CSA §§ 2511, 2520, authorizes compensation in a civil action
by persons who were the victims of an unlawful interception, the statute
would conflict with the First Amendment, and therefore should be interpreted
as inapplicable to media defendants and their sources who were not responsible
for the interception. Although the case was filed and maintained as a private
action, it was only after the case was argued this morning that the Court
realized that this interpretation might trench upon its obligation under
28 U.S.C. § 2403(a) to provide you with notice with respect to the
constitutional issue.
If you choose to file a brief on the constitutional issue, please have four
copies filed in the Office of the Clerk by Tuesday, October 20, 1998. The
Court is sending similar notice to the Attorney General of the Commonwealth
of Pennsylvania as the Pennsylvania Wiretapping and Electronic Surveillance
Control Act is also at issue. After the Court reads the briefs, if any,
submitted by the respective Attorney Generals' offices, it will decide whether
reargument would be appropriate with the representatives of one or both
of the Attorney Generals participating.
If you would like copies of the briefs filed by the parties, please contact
the lawyers whose names are listed below:
Donald H. Brobst, Esq.
Rosenn, Jenkins &
Greenwald
15 South Franklin Street
Wilkes-Barre, PA 18711
(717) 826-5600
Frank J. Aritz, Esq.
23 West Walnut Street
Kingston, PA 18704
(717) 288-9751
Raymond P. Wendolowski, Esq.
Koff, Wendolowski, Ferguson & Mangan
22 East Union Street,
Suite 115
Wilkes-Barre, PA 18701
(717) 822-5600
Very truly yours,
P. DOUGLAS SISK, Clerk
By: /s/ CAROL L. GILLIN
CAROL L. GILLIN,
Calendaring Clerk
Direct Dial: (215) 597-3130
PDS:clg
cc: Donald H. Brobst, Esquire
Frank J. Aritz, Esquire
Raymond P. Wendolowski, Esquire
Jeremiah A. Collins, Esquire (fyi)
1 Defendants Frederick Vopper; Keymarket of NEPA, Inc.; and Lackazerne,
Inc. (Media Defendants) and Defendant Yocum filed separate motions. See
Document 75; Document 76. However, both motions address similar issues,
and accordingly we need only address the motion for reconsideration in the
singular.
APPENDIX G
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 98-7156
GLORIA BARTNICKI; ANTHONY F. KANE, JR., APPELLEES
v.
FREDERICK W. VOPPER, A/K/A FRED WILLIAMS,
KEYMARKET OF NEPA, INC., D/B/A WILK RADIO,
LACKAZERNE, INC., D/B/A WGBI RADIO, APPELLANTS
(Middle District of PA (Scranton)
D.C. Civil No. 94-1201) (EMK)
[Nov. 19, 1998]
Present: SLOVITER, COWEN, Circuit Judges and POLLAK, District Judge
Motion by United States to intervene as of right for the purpose of defending
the constitutionality of 18 U.S.C. Section 2511.
/s/ DEBRA D. WALL
DEBRA D. WALL 597-0485
Argued 10/5/98 Case Management Supervisor
____________________ORDER __________________
The foregoing motion is granted.
By the Court,
/s/ DELORES SLOVITER
Circuit Judge
DATED: DEC 30 1998
APPENDIX H
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 98-7156
GLORIA BARTNICKI AND ANTHONY F. KANE, JR.
v.
FREDERICK W. VOPPER, A/K/A FRED WILLIAMS;
KEYMARKET OF NEPA, INC., D/B/A WILK RADIO;
LACKAZERNE, INC., D/B/A WGBI RADIO, JANE DOE; JOHN DOE; JACK YOCUM
FREDERICK W. VOPPER, A/K/A FRED WILLIAMS;
KEYMARKET OF NEPA, INC., D/B/A WILK RADIO;
LACKAZERNE, INC., D/B/A WGBI RADIO, JACK YOCUM
APPELLANTS
UNITED STATES OF AMERICA, INTERVENOR
SUR PETITION FOR REHEARING
Present: BECKER, Chief Judge, SLOVITER, MANSMANN, GREENBERG, SCIRICA, NYGAARD,
ALITO, ROTH, McKEE, RENDELL, and BARRY, Circuit Judges, and POLLAK, District
Judge1
The petition for rehearing filed by the Appellees and Amicus Pennsylvania
State Education Association and the petition for rehearing filed by Intervenor
United States in the above-entitled case having been submitted to the judges
who participated in the decision of this court and to all the other available
circuit judges of the circuit in regular active service, and no judge who
concurred in the decision having asked for rehearing, and a majority of
the circuit judges of the circuit in regular active service not having voted
for rehearing by the court en banc, the petitions for rehearing are denied.
Judges Greenberg, Scirica, Nygaard, Alito and Rendell would have granted
the petitions for rehearing.
By the Court,
/s/ DELORES SLOVITER
Circuit Judge
Dated: FEB 25 2000
1 Hon. Louis H. Pollak, Senior Judge, United States District Court for the
Eastern District of Pennsylvania, as to panel rehearing only.
APPENDIX I
1. The First Amendment to the United States Constitution provides:
Congress shall make no law respecting an establishment of religion, or prohibiting
the free exercise thereof; or abridging the freedom of speech, or of the
press; or the right of the people peaceably to assemble, and to petition
the Government for a redress of grievances.
2. 18 U.S.C. 2510 provides in pertinent part:
Definitions
As used in this chapter-
(1) "wire communication" means any aural transfer made in whole
or in part through the use of facilities for the transmission of communications
by the aid of wire, cable, or other like connection between the point of
origin and the point of reception (including the use of such connection
in a switching station) furnished or operated by any person engaged in providing
or operating such facilities for the transmission of interstate or foreign
communications or communications affecting interstate or foreign commerce
and such term includes any electronic storage of such communication;
(2) "oral communication" means any oral communication uttered
by a person exhibiting an expectation that such communication is not subject
to interception under circumstances justifying such expectation, but such
term does not include any electronic communication; * * *
3. 18 U.S.C. 2511 provides in pertinent part:
Interception and disclosure of wire, oral, or electronic communications
prohibited
(1) Except as otherwise specifically provided in this chapter [18 U.S.C.
2510-2520] any person who-
(a) intentionally intercepts, endeavors to intercept, or procures any other
person to intercept or endeavor to intercept, any wire, oral, or electronic
communication; [or]
* * *
(c) intentionally discloses, or endeavors to disclose, to any other person
the contents of any wire, oral, or electronic communication, knowing or
having reason to know that the information was obtained through the interception
of a wire, oral, or electronic communication in violation of this subsection;
[or]
(d) intentionally uses, or endeavors to use, the contents of any wire, oral,
or electronic communication, knowing or having reason to know that the information
was obtained through the interception of a wire, oral, or electronic communication
in violation of this subsection; * * *
* * *
shall be punished as provided in subsection (4) or shall be subject to suit
as provided in subsection (5).
* * *
(4)(a) Except as provided in paragraph (b) of this subsection or in subsection
(5), whoever violates subsection (1) of this section shall be fined under
this title or imprisoned not more than five years, or both.
(b) If the offense is a first offense under paragraph (a) of this subsection
and is not for a tortious or illegal purpose or for purposes of direct or
indirect commercial advantage or private commercial gain, and the wire or
electronic communication with respect to which the offense under paragraph
(a) is a radio communication that is not scrambled, encrypted, or transmitted
using modulation techniques the essential parameters of which have been
withheld from the public with the intention of preserving the privacy of
such communication, then-
(i) if the communication is not the radio portion of a cellular telephone
communication, a cordless telephone communication that is transmitted between
the cordless telephone handset and the base unit, a public land mobile radio
service communication or a paging service communication, and the conduct
is not that described in subsection (5), the offender shall be fined under
this title or imprisoned not more than one year, or both; and
(ii) if the communication is the radio portion of a cellular telephone communication,
a cordless telephone communication that is transmitted between the cordless
telephone handset and the base unit, a public land mobile radio service
communication or a paging service communication, the offender shall be fined
under this title.
(c) Conduct otherwise an offense under this subsection that consists of
or relates to the interception of a satellite transmission that is not encrypted
or scrambled and that is transmitted-
(i) to a broadcasting station for purposes of retransmission to the general
public; or
(ii) as an audio subcarrier intended for redistribution to facilities open
to the public, but not including data transmissions or telephone calls,
is not an offense under this subsection unless the conduct is for the purposes
of direct or indirect commercial advantage or private financial gain.
(5)(a)(i) If the communication is-
(A) a private satellite video communication that is not scrambled or encrypted
and the conduct in violation of this chapter is the private viewing of that
communication and is not for a tortious or illegal purpose or for purposes
of direct or indirect commercial advantage or private commercial gain; or
(B) a radio communication that is transmitted on frequencies allocated under
subpart D of part 74 of the rules of the Federal Communications Commission
that is not scrambled or encrypted and the conduct in violation of this
chapter is not for a tortious or illegal purpose or for purposes of direct
or indirect commercial advantage or private commercial gain,
then the person who engages in such conduct shall be subject to suit by
the Federal Government in a court of competent jurisdiction.
(ii) In an action under this subsection-
(A) if the violation of this chapter is a first offense for the person under
paragraph (a) of subsection (4) and such person has not been found liable
in a civil action under section 2520 of this title, the Federal Government
shall be entitled to appropriate injunctive relief; and
(B) if the violation of this chapter is a second or subsequent offense under
paragraph (a) of subsection (4) or such person has been found liable in
any prior civil action under section 2520, the person shall be subject to
a mandatory $500 civil fine.
(b) The court may use any means within its authority to enforce an injunction
issued under paragraph (ii)(A), and shall impose a civil fine of not less
than $500 for each violation of such an injunction.
4. 18 U.S.C. 2515 provides:
Prohibition of use as evidence of intercepted wire or oral communications
Whenever any wire or oral communication has been intercepted, no part of
the contents of such communication and no evidence derived therefrom may
be received in evidence in any trial, hearing, or other proceeding in or
before any court, grand jury, department, officer, agency, regulatory body,
legislative committee, or other authority of the United States, a State,
or a political subdivision thereof if the disclosure of that information
would be in violation of this chapter.
5. 18 U.S.C. 2520 provides:
Recovery of civil damages authorized
(a) IN GENERAL.-Except as provided in section 2511(2)(a)(ii), any person
whose wire, oral, or electronic communication is intercepted, disclosed,
or intentionally used in violation of this chapter may in a civil action
recover from the person or entity which engaged in that violation such relief
as may be appropriate.
(b) RELIEF.-In an action under this section, appropriate relief includes-
(1) such preliminary and other equitable or declaratory relief as may be
appropriate;
(2) damages under subsection (c) and punitive damages in appropriate cases;
and
(3) a reasonable attorney's fee and other litigation costs reasonably incurred.
(c) COMPUTATION OF DAMAGES.-(1) In an action under this section, if the
conduct in violation of this chapter is the private viewing of a private
satellite video communication that is not scrambled or encrypted or if the
communication is a radio communication that is transmitted on frequencies
allocated under subpart D of part 74 of the rules of the Federal Communications
Commission that is not scrambled or encrypted and the conduct is not for
a tortious or illegal purpose or for purposes of direct or indirect commercial
advantage or private commercial gain, then the court shall assess damages
as follows:
(A) If the person who engaged in that conduct has not previously been enjoined
under section 2511(5) and has not been found liable in a prior civil action
under this section, the court shall assess the greater of the sum of actual
damages suffered by the plaintiff, or statutory damages of not less than
$50 and not more than $500.
(B) If, on one prior occasion, the person who engaged in that conduct has
been enjoined under section 2511(5) or has been found liable in a civil
action under this section, the court shall assess the greater of the sum
of actual damages suffered by the plaintiff, or statutory damages of not
less than $100 and not more than $1000.
(2) In any other action under this section, the court may assess as damages
whichever is the greater of-
(A) the sum of the actual damages suffered by the plaintiff and any profits
made by the violator as a result of the violation; or
(B) statutory damages of whichever is the greater of $100 a day for each
day of violation or $10,000.
(d) DEFENSE.-A good faith reliance on-
(1) a court warrant or order, a grand jury subpoena, a legislative authorization,
or a statutory authorization;
(2) a request of an investigative or law enforcement officer under section
2518(7) of this title; or
(3) a good faith determination that section 2511(3) of this title permitted
the conduct complained of;
is a complete defense against any civil or criminal action brought under
this chapter or any other law.
(e) LIMITATION.-A civil action under this section may not be commenced later
than two years after the date upon which the claimant first has a reasonable
opportunity to discover the violation.