“When Representative McDer-mott became a member of the Ethics Committee, he voluntarily accepted a duty of confidentiality that covered his receipt and handling of the Martins’ illegal recording. He therefore had no First Amendment right to disclose the tape to the media.”
How later courts described this case
- “When Representative McDer-mott became a member of the Ethics Committee, he voluntarily accepted a duty of confidentiality that covered his receipt and handling of the Martins’ illegal recording. He therefore had no First Amendment right to disclose the tape to the media.”
Written by the judges who cited it.
The opinion
United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 15, 2005 Decided March 28, 2006
No. 04-7203
JOHN A. BOEHNER,
APPELLEE
v.
JAMES A. MCDERMOTT,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 98cv00594)
Frank Cicero, Jr. argued the cause for appellant. With him
on the briefs was Christopher Landau.
Theodore J. Boutrous, Jr. and Thomas H. Dupree, Jr. were
on the brief of amici curiae Dow Jones & Company, Inc., et al.
in support of appellant.
Michael A. Carvin argued the cause for appellee. With him
on the brief was Louis K. Fisher.
Before: GINSBURG, Chief Judge, and SENTELLE and
RANDOLPH, Circuit Judges.
2
Opinion for the court filed by Circuit Judge RANDOLPH.
Dissenting opinion filed by Circuit Judge SENTELLE.
RANDOLPH, Circuit Judge: After the Supreme Court
vacated our decision in Boehner v. McDermott, 191 F.3d 463
(D.C. Cir. 1999) (Boehner I), and returned the case to us for
further consideration in light of Bartnicki v. Vopper, 532 U.S.
514 (2001), see 532 U.S. 1050 (2001), we remanded the case to
the district court; the parties engaged in discovery; and, on cross
motions, the district court granted summary judgment in favor
of Representative John A. Boehner, awarding him $10,000 in
statutory damages, see 18 U.S.C. § 2520(c)(2), $50,000 in
punitive damages, and reasonable attorney fees and costs. The
issue on appeal is whether undisputed facts prove that
Representative James A. McDermott “unlawfully” obtained the
tape recording of an illegally-intercepted conversation in which
Representative Boehner participated. See Bartnicki, 532 U.S. at
532 n.19.
Plaintiff John A. Boehner represents Ohio’s Eighth District;
defendant James A. McDermott represents Washington’s
Seventh District. The complaint alleged that Representative
McDermott violated 18 U.S.C. § 2511(1)(c) when he disclosed
an illegally-intercepted conversation in which Representative
Boehner participated. The record developed in discovery
showed the following.
On December 21, 1996, Representative Boehner
participated in a conference call with members of the
Republican Party leadership, including then-Speaker of the
House Newt Gingrich. At the time of the conversation Gingrich
was the subject of an investigation by the House Committee on
Standards of Official Conduct, commonly known as the House
Ethics Committee. Representative Boehner was chairman of the
3
House Republican Conference. The participants discussed
various strategies regarding how to deal with an expected Ethics
Subcommittee announcement of Gingrich’s agreement to accept
a reprimand and to pay a fine in exchange for the Committee’s
promise not to hold a hearing.
Representative Boehner was driving through Florida when
he joined the conference call. He spoke from a cellular
telephone in his car. John and Alice Martin, who lived in
Florida, used a police radio scanner to eavesdrop on the
conversation, in violation of 18 U.S.C. § 2511(1)(a). They
recorded the call and delivered a tape of the conversation in a
sealed envelope to the Florida office of then-Representative
Karen Thurman. The tape was forwarded to Thurman’s
Washington office. Thurman’s chief of staff learned from her,
on January 8, 1997, that the Martins would be visiting her office
in Washington. Both Thurman and her chief of staff sought
legal advice about accepting the tape. At some point they
consulted then-Representative David Bonior’s chief of staff and
legislative director. Stan Brand, former General Counsel to the
House of Representatives, advised that the tape should not be
accepted under any circumstances and that it should be turned
over to the Ethics Committee or other appropriate authorities.
When the Martins arrived at Thurman’s office, her chief of staff
returned the tape in its unopened envelope and suggested that
they turn it over to the Ethics Committee.
At about 5 p.m. on January 8, 1997, in a small anteroom
adjacent to the Ethics Committee hearing room, the Martins
delivered the tape to Representative McDermott in a sealed 8-
1/2" by 11" envelope. At the time, Representative McDermott
was the ranking Democrat on the Ethics Committee. A
conversation between the Martins and Representative
McDermott ensued, of which more hereafter. With the envelope
the Martins also delivered a business card and a typed letter,
4
dated January 8, 1997, and addressed to “Committee on
Standards of Official Conduct . . . Jim McDermott, Ranking
Member.” The letter stated:
Enclosed in the envelope you will find a tape of a
conversation heard December 21, 1996 at about 9:45
a.m. The call was a conference call heard over a
scanner. We felt the information included were of
importance to the committee. We live in the 5th.
Congressional District and attempted to give the tape to
Congresswoman Karen Thurman. We were advised by
her to turn the tape directly over to you. We also
understand that we will be granted immunity.
My husband and I work for Columbia County Schools in
Columbia County Florida. We pray that committee will
consider our sincerity in placing it in your hands.
We will return to our home today.
Thank you for your consideration.
John and Alice Martin
Representative McDermott then returned to the Ethics
Committee hearing room.
Later that evening, during a recess, Representative
McDermott left the Ethics Committee hearing room and went to
his office. There he opened the Martins’ envelope, dumped out
the contents, and listened to the tape. Still later, he called two
reporters: Jeanne Cummings of the Atlanta Journal-
Constitution, for whom he left a message, and Adam Clymer of
the New York Times, whom he reached. Clymer went to
Representative McDermott’s office, listened to the tape, and
5
made a recording of it. After Cummings returned
Representative McDermott’s call the next day, he invited her to
his office and shared the tape with her.
On January 10, 1997, Clymer published a front-page article
in the New York Times entitled “Gingrich Is Heard Urging
Tactics in Ethics Case.” The article, which included lengthy
excerpts of the taped conversation, reported the circumstances
leading to disclosure of the tape:
The call was taped by people in Florida who were
unsympathetic to Mr. Gingrich and who said they heard
it on a police scanner that happened to pick up the
cellular telephone transmission of one of the
participants. It was given to a Democratic Congressman,
who made the tape available to the New York
Times. . . ..
....
Mr. Gingrich, Mr. Bethune and the others discussed
their tactics in a conference call, a transcript of which
was made available by a Democratic Congressman
hostile to Mr. Gingrich who insisted that he not be
identified further.
The Congressman said the tape had been given to
him on Wednesday by a couple who said they were from
northern Florida. He quoted them as saying it had been
recorded off a radio scanner, suggesting that one
participant was using a cellular telephone. They said it
was recorded about 9:45 A.M. on Dec. 21.
6
Adam Clymer, Gingrich Is Heard Urging Tactics in Ethics
Case, N.Y. TIMES, Jan. 10, 1997, at A1, A20. The Atlanta
Journal-Constitution ran a similar story on January 11th.
On January 13, 1997, the Martins held a press conference
and identified Representative McDermott as the Congressman
to whom they delivered the tape. Representative McDermott
then sent copies of the tape to the offices of the House Ethics
Committee and resigned from the Committee. The Committee
Chairman, Representative Nancy Johnson, forwarded the tape to
the Justice Department. The government prosecuted the Martins
for violating 18 U.S.C. § 2511(1)(a), the provision forbidding
unauthorized interception of “wire, oral, or electronic
communication.” The Martins pled guilty and were fined $500.
On cross-motions for summary judgment the district court
held that Representative McDermott violated 18 U.S.C.
§ 2511(1)(c) when he disclosed the tape to the reporters.
Boehner v. McDermott, 332 F. Supp. 2d 149, 158 (D.D.C. 2004)
(Boehner II). Section 2511(1)(c) makes intentional disclosure
of any illegally-intercepted conversation a criminal offense if
the person disclosing the communication knew or had “reason
to know” that it was so acquired. The Bartnicki Court held that
under the First Amendment, § 2511(1)(c) was invalid as applied
to individuals who lawfully obtained a tape of such a
conversation and then disclosed it, 532 U.S. at 5351; the Court
1
The Court also held that for the First Amendment to shield
disclosure, the conversation must contain information of “public
concern.” 532 U.S. at 535. But see Gertz v. Robert Welch, Inc., 418
U.S. 323 (1974), in which the Court refused to make the First
Amendment turn on such a consideration in light of the “difficulty of
forcing state and federal judges to decide on an ad hoc basis which
publications address issues of ‘general or public interest’ and which
do not . . .. We doubt the wisdom of committing this task to the
7
added that its holding did not apply to those who obtain the
information unlawfully, id. at 532 n.19. The district court
therefore viewed the crucial issue to be whether Representative
McDermott lawfully obtained the tape from the Martins. See
Boehner II, 332 F. Supp. 2d at 163-64. The court held that there
was no genuine issue of material fact that the Martins’ letter to
Representative McDermott was on the outside of the envelope
containing the tape and that he must have read it. Id. at 166-67,
169. This established Representative McDermott’s knowledge
of the Martins’ illegal interception at the time he received the
tape. It followed that he had not lawfully obtained the tape. Id.
at 165-66, 169.
According to Representative McDermott, the district court
misinterpreted Bartnicki. As he reads the Supreme Court’s
opinion, any individual who did not participate in the illegal
interception of a conversation has a First Amendment right to
disclose it.
It is true that in Bartnicki the defendants had no connection
to the illegal interception. The tape of the conversation wound
up in Yocum’s mailbox, placed there by some unknown person.
532 U.S. at 519, 525. Neither Yocum nor the radio broadcaster
who played the tape on his program after Yocum gave it to him
knew who had done the intercepting. The Court mentioned the
anonymity of the interceptor several times, id. at 525, 530 &
n.15, 531, 535, and distinguished this case on that ground:
In the Boehner case, as in this suit, a conversation
over a car cell phone was intercepted, but in that case the
defendant knew both who was responsible for
intercepting the conversation and how they had done it.
191 F. 3d, at 465. In the opinion of the majority, the
conscience of judges.” Id. at 346.
8
defendant acted unlawfully in accepting the tape in order
to provide it to the media. Id., at 476.
532 U.S. at 522 n.5. We do not want to read too much into the
Court’s “but” in the first sentence, yet one must wonder why the
Court drew this distinction if it meant to adopt the rule
Representative McDermott urges on us. Elsewhere in the
Bartnicki opinion the Court stressed that it had before it only an
“as applied” challenge to the federal statute, id. at 524, 525; that
in light of the facts of the case, the question presented was
“narrow,” id. at 517, 528, 529; and that it was deciding only that
those who lawfully obtain information have a First Amendment
right to disclose it to the public, id. at 525, 528 (quoting Smith
v. Daily Mail Publ’g Co., 443 U.S. 97, 103 (1979), and Florida
Star v. B.J.F., 491 U.S. 524, 535 n.8 (1989)). The Court also
stated that its “holding, of course, does not apply to punishing
parties for obtaining the relevant information unlawfully.” Id.
at 532 n.19.
Representative McDermott’s reading of these and other
statements of the Court is quite implausible. By his logic, if he
stole the tape from the Martins he would have lawfully obtained
it because he did not participate in the initial illegal interception.
Among other statements in the majority opinion, footnote 19 –
which we have just quoted – clearly stands for the opposite
proposition. Justice Breyer, in his concurring opinion, in which
Justice O’Connor joined, understood as much. Citing footnote
19, he distinguished cases in which the person who disclosed the
conversation “aided or abetted . . . the later delivery of the tape
by the interceptor to an intermediary, or the tape’s still later
delivery by the intermediary to the media.” Id. at 538 (Breyer,
J., concurring) (citing the federal aiding and abetting statute, 18
U.S.C. § 2).
9
The eavesdropping statute may not itself make receiving a
tape of an illegally-intercepted conversation illegal. See id. at
525, 528; see also 18 U.S.C. § 2511(1). But it does not follow
that anyone who receives a copy of such a conversation has
obtained it legally and has a First Amendment right to disclose
it. If that were the case, then the holding in Bartnicki is not
“narrow” as the Court stressed, but very broad indeed. On the
other hand, to hold that a person who knowingly receives a tape
from an illegal interceptor either aids and abets the interceptor’s
second violation (the disclosure), or participates in an illegal
transaction would be to take the Court at its word. It also helps
explain why the Court thought it so significant that the illegal
interceptor in Bartnicki was unknown, see 532 U.S. at 519, 522
n.5, 525, 530 & n.15, 531, and why the Court distinguished this
case on that ground, see id. at 522 n.5.2
As to the evidence, the district court stated that if
Representative McDermott
read the cover letter or the Martins related its relevant
contents to him at the time [he] received the tape, he
would have possessed sufficient knowledge of the illegal
transaction to have unlawfully obtained the tape . . .. On
the other hand, if [Representative McDermott] learned
of the contents of the letter at some later time after
taking possession of the tape, . . . the case more closely
resembles Bartnicki . . ..
2
The Court added that “[i]n the opinion of the majority, the
defendant [Representative McDermott] acted unlawfully in accepting
the tape in order to provide it to the media.” 532 U.S. at 522 n.5.
(The case came to us on appeal from the dismissal of a complaint; our
conclusion was based on a construction of the complaint. See Boehner
I, 191 F.3d at 464 & n.1).
10
Boehner II, 332 F. Supp. 2d at 165-66. The court then reached
two conclusions: the Martins’ cover letter was outside the
envelope containing the tape and Representative McDermott
read it when the Martins’ handed it to him, not when he later
returned to his office to listen to the tape. Id. at 166-67, 169.
Representative McDermott objects that both of the court’s
conclusions rested on material facts that were genuinely in
dispute and that summary judgment was therefore improper.
Our de novo review of the judgment, see, e.g., Branch Ministries
v. Rossotti, 211 F.3d 137, 141 (D.C. Cir. 2000), supports his
position.
The cover letter stated: “Enclosed in the envelope you will
find a tape.” But this does not prove that the letter was outside
the envelope containing the tape. The tape was in fact
“enclosed” regardless where the Martins placed the letter.3 And
even if the letter was outside the envelope, this does not prove
that Representative McDermott read it at the time he received
the tape. “[C]ommon sense” may indicate, as the district court
wrote, “that one who accepts from strangers a package with a
short accompanying letter is likely to read the letter . . ..”
Boehner II, 332 F. Supp. 2d at 166. But at the summary
judgment stage, the nonmoving party is entitled to “all
justifiable inferences” from the evidence. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 255 (1986); see, e.g., Matsuhita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 588 (1986);
Salazar v. Wash. Metro. Area Transit Auth., 401 F.3d 504, 507
(D.C. Cir. 2005). Here Representative McDermott did not
simply rest on “allegations or denials of the adverse party’s
pleading.” FED. R. CIV. P. 56(e). As Rule 56 requires, he
adduced evidence – his deposition testimony – in which he
3
The Martins apparently were not deposed.
11
denied ever having seen the letter. A justifiable inference from
that evidence is that he did not read it.4
While there was a genuine issue of material fact regarding
Representative McDermott’s knowledge of the cover letter, we
nevertheless conclude that Representative Boehner was “entitled
to a judgment as a matter of law.” FED. R. CIV. P. 56(c); see
Teamsters Local Union No. 61 v. United Parcel Serv., Inc., 272
F.3d 600, 603-04 (D.C. Cir. 2001); Samii v. Billington, 195 F.3d
1, 3 (D.C. Cir. 1999); Doe v. Gates, 981 F.2d 1316, 1322 (D.C.
Cir. 1993). We start with the New York Times article. Clymer
reported that a certain Congressman, later identified as
Representative McDermott, “quoted” the interceptors (the
Martins) as saying that the conversation was “recorded off a
radio scanner.” The evidence shows that there were only two
ways Representative McDermott could have known this – from
the cover letter or from his conversation with the Martins in the
anteroom when they handed him the tape. We may eliminate
the cover letter. As we have just said, Representative
McDermott denied having read it. His denials were unequivocal
– they were not of the I-do-not-recall-one-way-or-the-other
variety. This leaves only the oral conversation. Unlike his
unequivocal denial of ever having read the cover letter,
Representative McDermott does not deny that the Martins told
him they used a scanner to intercept the conversation. He
testified only that he could “not remember one way or another.”
Nor does Representative McDermott deny telling Clymer, the
4
Representative McDermott also makes much of his
testimony that he did not know what was on the tape when he received
it. But this is not evidence tending to show his failure to read the letter
when the Martins handed him the tape. Even if he read the cover letter
he would not have known what the tape contained. As to the contents
of the tape, the letter said only that it would be “of importance to the
committee.”
12
New York Times reporter, that the Martins told him they
recorded the conversation over a scanner. He testified only that
“I wouldn’t say I didn’t say it. I just don’t recall it.” This is
insufficient to draw into dispute Representative Boehner’s
statement of undisputed facts that Representative McDermott
told Clymer “that [the Martins] had heard and recorded the
conversation over a police scanner on December 21, 1996 at
9:45 a.m.” See FEC v. Toledano, 317 F.3d 939, 949-50 (9th Cir.
2002); FDIC v. Nat’l Union Fire Ins. Co. of Pittsburgh, 205
F.3d 66, 75 (2d Cir. 2000). While a court should draw all
justifiable evidentiary inferences in favor of the non-moving
party, there is no such inference to draw in Representative
McDermott’s favor. See Lusk v. Foxmeyer Health Corp., 129
F.3d 773, 779-80 (5th Cir. 1997); Crabbs v. Copperweld Tubing
Prods. Co., 114 F.3d 85, 88 (6th Cir. 1997); DeLuca v. Winer
Indus., Inc., 53 F.3d 793, 798 (7th Cir. 1995).
Because there was no genuine dispute that Representative
McDermott knew the Martins had illegally intercepted the
conversation, he did not lawfully obtain the tape from them.
The Martins violated § 2511 not once, but twice – first when
they intercepted the call and second when they disclosed it to
Representative McDermott. It is of little moment whether
Representative McDermott’s complicity constituted aiding and
abetting their criminal act,5 or the formation of a conspiracy with
5
See 2 WAYNE R. LAFAVE, SUBSTANTIVE CRIMINAL LAW
§ 13.2(a) (2d ed. 2003); id. § 13.2(b), at 344 (“Generally, it may be
said that accomplice liability exists when the accomplice intentionally
encourages or assists, in the sense that his purpose is to encourage or
assist another in the commission of a crime as to which the accomplice
has the requisite mental state.”); United States v. Walker, 99 F.3d 439,
442 (D.C. Cir. 1996) (explaining the “shared intent” standard for
aiding and abetting as an “overlap with (but not necessarily match) the
criminal intent of the principal”); see also United States v. Yakou, 428
13
them, or amounted to participating in an illegal transaction.6
The difference between this case and Bartnicki is plain to see.7
F.3d 241, 252 (D.C. Cir. 2005) (stating the “long . . . established
[principle] that a person can be convicted of aiding and abetting
another person’s violation of a statute even if it would be impossible
to convict the aider and abettor as a principal”).
6
As Chief Judge Ginsburg wrote in the original appeal: “One
who obtains information in an illegal transaction, with full knowledge
the transaction is illegal, has not ‘lawfully obtain[ed]’ that information
in any meaningful sense.” Boehner I, 191 F.3d at 479 (Ginsburg, J.,
concurring) (alteration in original).
7
Our dissenting colleague believes that the Supreme Court’s
resolution of the conflict between Boehner I and Bartnicki v. Vopper,
200 F.3d 109 (3d Cir. 1999), in favor of the Third Circuit’s decision
implicitly means that Representative McDermott had a First
Amendment right to disclose the tape. Dissenting Op. at 2; see also
id. at 5. If the Court had agreed with our colleague, it would have
reversed our decision; instead, it vacated and remanded for
reconsideration. Furthermore, one must pay close attention to the
nature of the conflict between Boehner I and the Third Circuit’s
decision. We held that the statute was content neutral and that it was
constitutional as applied, because it survived intermediate scrutiny.
Boehner I, 191 F.3d at 467-70. The Third Circuit held that the statute
was content neutral but did not survive intermediate scrutiny as
applied. Bartnicki, 200 F.3d at 123-29. In resolving that conflict the
Court held only that someone who lawfully obtains an illegally-
intercepted conversation may disclose it, which still leaves the
question we face in this case: whether Representative McDermott
lawfully obtained the tape from the Martins.
Our colleague also thinks it matters little that the Supreme
Court distinguished Boehner I on the ground that McDermott may
have participated in an illegal transaction. Dissenting Op. at 7-8. It
matters little, he writes, because the Court did the distinguishing in the
factual portion of the opinion. Id. But that makes our point. As we
14
It is the difference between someone who discovers a bag
containing a diamond ring on the sidewalk and someone who
accepts the same bag from a thief, knowing the ring inside to
have been stolen. The former has committed no offense; the
latter is guilty of receiving stolen property, even if the ring was
intended only as a gift.8 See MODEL PENAL CODE § 223.6(1)
(1962); D.C. CODE § 22-3232; see also Williams v. United
States, 281 A.2d 293, 294 (D.C. 1971) (citing Rugendorf v.
United States, 376 U.S. 528 (1964); Wilson v. United States, 162
U.S. 613, 619 (1896)) (explaining a prior version of § 22-3232).
Affirmed.
have explained, the facts of this case are, in important respects, quite
different than those in Bartnicki.
8
We do not understand Representative McDermott to be
arguing that even if he unlawfully obtained the illegally-intercepted
conversation, he had a First Amendment right to disclose the tape. See
generally Boehner I, 191 F.3d 463; id. at 479 (Ginsburg, J.,
concurring).
SENTELLE, J., dissenting: In the first eight paragraphs of its
opinion, the majority accurately lays out the somewhat extended
history of this case. Two persons not parties to the case
unlawfully intercepted communications of the appellee and gave
a tape of the communications to the appellant in violation of 18
U.S.C. § 2511(1)(a) and (1)(c). Appellee brought the present
action, which the district court dismissed, reasoning this
application of the statute violated the First Amendment
guarantee to the right of free speech.
The defendant appealed. In a split decision, a panel of this
court (identical to the present panel) reversed the dismissal,
holding that the application of section 2511(1)(c) and a parallel
Florida statute “are not unconstitutional as applied in this case.”
Boehner v. McDermott, 191 F.3d 463, 478 (D.C. Cir. 1999); see
also id. at 480 (Ginsburg, J., concurring). I disagreed with the
majority’s opinion then, as I do today. As I perceived the case
then, and as I perceive it now, the issue is: “Where the punished
publisher of information has obtained the information in
question in a manner lawful in itself but from a source who has
obtained it unlawfully, may the government punish the ensuing
publication of that information based on the defect in a chain?”
Id. at 484-85 (Sentelle, J., dissenting) (quoted in Bartnicki v.
Vopper, 532 U.S. 514, 528 (2000)). I would have answered that
question in the negative. While I thought the appropriate test to
be a strict scrutiny applicable to content-based limitation on the
exercise of free speech, see id. at 481 (Sentelle, J., dissenting),
a proposition ultimately rejected by the Supreme Court in
Bartnicki, I nonetheless would reach the same conclusion today
under tests applicable to “content-neutral law[s] of general
applicability.” Bartnicki, 532 U.S. at 526. Moreover, I would
reach such a conclusion with confidence, based on the Supreme
Court’s decision adjudicating the constitutionality of a similar
application of this same statement in Bartnicki.
2
At approximately the same time that our prior decision was
making its way to the Supreme Court, the Supreme Court
granted certiorari in Bartnicki v. Vopper, 200 F.3d 109 (3d Cir.
1999), to answer precisely the issue before us in Boehner. See
Bartnicki v. Vopper, 530 U.S. 1260 (2000) (granting certiorari).
In Bartnicki, the Third Circuit had concluded that the application
of 18 U.S.C. § 2511(1)(c) to prevent disclosure of information
obtained by the disclosing person from a tape of unlawfully
intercepted communications was constitutionally “invalid”
because it “deterred significantly more speech than necessary to
protect the privacy interests at stake.” 532 U.S. at 522. The
Supreme Court expressly granted certiorari “to resolve the
conflict,” between Bartnicki and our decision in Boehner. Id.
The Supreme Court affirmed the decision of the Third Circuit,
id. at 535, and thereby resolved the conflict in favor of the Third
Circuit’s decision, not our decision in Boehner.
In Bartnicki, the chief negotiator for a Union Local, which
was then engaged in negotiations on behalf of teachers with a
local school board, used a cellular phone to call the president of
the Union “and engage in a lengthy conversation about the status
of the negotiations.” Id. at 518. At one point in the
conversation, referring to the school board’s “intransigence,”
she said “‘we’re gonna have to go to their . . . homes . . . [t]o
blow off their front porches . . . .’” Id. at 518-19. A local radio
commentator, respondent in the Supreme Court, broadcast a tape
of the conversation on a radio show. All parties agreed that the
tape, like the tape of Boehner’s conversation released by
McDermott, was the result of an unlawful interception. The
identity of the interceptor remained undisclosed throughout the
litigation. The Union officers, like Boehner in the instant case,
sued the publishers of the contents of the tape. In that case, the
defendants included the broadcaster, the radio stations over
which he made his broadcast, and the person who furnished the
broadcaster with the tape, himself the head of a local citizens’
3
group who testified that he had obtained the tape when it was
left anonymously in his mailbox. Like Boehner in the case
before us, plaintiffs relied on section 2511(1)(c) and a state
statute of similar import. The district court granted summary
judgment for the plaintiffs, rejecting the defendant’s First
Amendment defense. As noted above, the Third Circuit, in a
divided opinion, disagreed, reversed the trial court, and
remanded with directions to the district court to grant the
summary judgment motions of the defendants on the basis of the
First Amendment defense. Bartnicki, 200 F.3d at 129.
On certiorari the Supreme Court, as had the Third Circuit,
ruled that the statute was content neutral and subjected the
statute to review under the “intermediate scrutiny” standard.
532 U.S. at 521, 526. While that standard is less stringent than
the one I would have erroneously applied to the case before us,
the result was nonetheless the one that I contended should have
prevailed in Boehner. That is, the Supreme Court ruled that the
statute was unconstitutional as applied.
In addressing the issue, the Supreme Court adopted my
formulation:
Where the punished publisher of information has obtained
the information in question in a manner lawful in itself but
from a source who has obtained it unlawfully, may the
government punish the ensuing publication of that
information based on the defect in a chain?
Id. at 528 (quoting Boehner, 191 F.3d at 484-85) (Sentelle, J.,
dissenting)). In analyzing the law on that subject, the Supreme
Court first noted that “[a]s a general matter, ‘state action to
punish the publication of truthful information seldom can satisfy
constitutional standards.’” Id. at 527 (quoting Smith v. Daily
Mail Publ’g Co., 443 U.S. 97, 102 (1979)). The Supreme Court
4
then expressed its continuing belief “that the sensitivity and
significance of the interests presented in clashes between [the]
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 529 (quoting Florida Star v.
B.J.F., 491 U.S. 524, 532-33 (1989)) (alteration in original). In
applying that balance to the facts before it, the Court observed
that the United States, appearing in the case to defend the
constitutionality of the statute, had identified “two interests
served by the statute.” Id. The first of those interests was the
removal of “an incentive for parties to intercept private
conversations,” and the second, to “minimiz[e] the harm to
persons whose conversations have been illegally intercepted.”
Id. While the Court was willing to “assume that those interests
adequately justify the prohibition in § 2511(1)(d) against the
interceptor’s own use of information . . . acquired by violating
§ 2511(1)(a),” the Court explicitly stated that “it by no means
follows that punishing disclosures of lawfully obtained
information of public interest by one not involved in the initial
illegality is an acceptable means of serving those ends.” Id.
The Court easily dispensed with the first justification,
opining that “[t]he normal method of deterring unlawful conduct
is to impose an appropriate punishment on the person who
engages in it.” Id. The Court concluded, however, that “it
would be quite remarkable to hold that speech by a law-abiding
possessor of information can be suppressed in order to deter
conduct by a non-law-abiding third party.” Id. at 529-30. It
further noted that “there is no basis for assuming that imposing
sanctions” on the communicating possessor of conversations
illegally taped by another “will deter the unidentified scanner
from continuing to engage in surreptitious interceptions.” Id. at
531. Thus, the Court held that “the Government’s first
suggested justification for applying § 2511(1)(c) to an otherwise
innocent disclosure of public information is plainly
5
insufficient.” Id. at 532.
However, the Court found the government’s second
justification, that is, the protection of privacy, “considerably
stronger.” Id. It noted the importance of privacy of
communication and the legitimacy of the argument that “fear of
public disclosure of private conversations might well have a
chilling effect on private speech.” Id. at 533. Nonetheless, the
Court was convinced that the enforcement of section 2511(1)(c)
on the facts before it, “implicat[ed] the core purposes of the First
Amendment because it imposes sanctions on the publication of
truthful information of public concern.” Id. at 533-34. In
concluding that this second interest did not have sufficient
strength to warrant the limitation on publication of truthful
information of public concern, the Court reiterated the classic
principle that “‘[t]he right of privacy does not prohibit any
publication of matter which is of public or general interest.’” Id.
at 534 (quoting SAMUEL D. WARREN & LOUIS D. BRANDEIS, The
Right to Privacy, 4 HARV. L. REV. 193, 214 (1890)).
In the light of the Supreme Court’s resolution of the conflict
between our Boehner decision and the Third Circuit’s decision
in its Bartnicki opinion, there is no justification for us to hold
otherwise on the facts before us. There is no distinction of legal
let alone constitutional significance between our facts and those
before the Court in Bartnicki. As the majority admits, “[t]he
Bartnicki Court held that under the First Amendment, §
2511(1)(c) was invalid as applied to individuals who lawfully
obtained a tape of such a conversation and then disclosed it, 532
U.S. at 535.” Maj. Op. at 6. That said, the majority is unable to
produce a distinction between this case and Bartnicki. Granted,
the majority states:
The difference between this case and Bartnicki is plain to
see. It is the difference between someone who discovers a
6
bag containing a diamond ring on the sidewalk and
someone who accepts the same bag from a thief, knowing
the ring inside to have been stolen. The former has
committed no offense; the latter is guilty of receiving stolen
property, even if the ring was intended only as a gift.
Maj. Op. at 13-14 (footnotes omitted). In fact, the difference is
not plain at all. In Bartnicki the Supreme Court expressly stated:
The suit at hand involves the repeated intentional disclosure
of an illegally intercepted cellular telephone conversation
about a public issue. The persons who made the disclosures
did not participate in the interception, but they did know--or
at least had reason to know--that the interception was
unlawful.
532 U.S. at 517-18. The majority apparently would make the
distinction between the two cases based on an analogy between
a person who buys a diamond ring from a thief, and one who
obtains a stolen diamond ring knowing it to be stolen or having
at least good reason to know that it was stolen. I see no such
distinction, let alone a plain one of constitutional significance.
The Supreme Court underlined the lack of constitutional
significance of the communicator’s knowledge that the
interception had been unlawfully conducted. It stated that “[w]e
accept petitioners’ submission that the interception was
intentional, and therefore unlawful, and that, at a minimum,
respondents ‘had reason to know’ that it was unlawful.” Id. at
525. The majority, apparently attempting to shore up its
artificial distinction, states:
As Chief Judge Ginsburg wrote in the original appeal: “One
who obtains information in an illegal transaction, with full
knowledge the transaction is illegal, has not ‘lawfully
obtain[ed]’ that information in any meaningful sense.”
7
Maj. Op. at 13 n.6 (quoting Boehner, 191 F.3d at 479 (Ginsburg,
J., concurring)) (alteration in original).
The Supreme Court has directly dispelled that notion both
in Bartnicki itself and previously. The Supreme Court in
Bartnicki expressly stated, “[respondents’] access to the
information on the tapes was obtained lawfully, even though the
information itself was intercepted unlawfully by someone else.”
532 U.S. at 525. In support of this proposition the court cites
and quotes Florida Star, which stated “[e]ven assuming the
Constitution permitted a State to proscribe receipt of
information, Florida has not taken this step.” 491 U.S. at 536
(emphasis in original). Florida still has not taken that step, nor
has Congress. Therefore, the otherwise-lawful receipt of
unlawfully obtained information remains in itself lawful, even
where the receiver knows or has reason to know that the source
has obtained the information unlawfully.
Even less convincing is the majority’s assertion that the
Court mentioned the anonymity of the interceptor in Bartnicki
several times and “distinguished this case on that ground.” Maj.
Op. at 7. The so-called distinguishing of the case occurred in a
footnote stating as follows:
In the Boehner case, as in this suit, a conversation over a
car cell phone was intercepted, but in that case the
defendant knew both who was responsible for intercepting
the conversation and how they had done it. In the opinion
of the majority [of the D.C. Circuit], the defendant acted
unlawfully in accepting the tape in order to provide it to the
media.
532 U.S. at 522 n.5 (quoted at Maj. Op. at 7-8) (internal
citations omitted). Today’s majority hastens to say “[w]e do not
want to read too much into the Court’s ‘but’ in the first sentence,
8
yet one must wonder why the Court drew this distinction if it
meant to adopt the rule Representative McDermott urges on us.”
Maj. Op. at 8. The referenced footnote occurs in the Court’s
statement of the facts of the case and is never referenced in the
legal analysis. Indeed, the footnote is subscribed to a textual
sentence stating “[i]n so doing, [the Third Circuit dissenter]
agreed with the majority opinion in a similar case decided by the
Court of Appeals for the District of Columbia, Boehner v.
McDermott, 191 F.3d 463 (D.C. Cir. 1999).” 532 U.S. at 522.
If the Supreme Court in fact thought that the “distinction” was
of constitutional significance, one must wonder why it thought
the different results in the two circuit cases constituted a
disagreement. This wonderment must be greatly enhanced upon
reading the next sentence, which reads “[w]e granted certiorari
to resolve the conflict.” Id. The Supreme Court then goes on to
resolve the conflict without making any further mention of any
factual difference between the cases. To paraphrase the
majority, one must wonder why the Court so easily dispensed
with the distinction between one who knows who unlawfully
intercepted a conversation and one who knows or has reason to
know it was unlawfully intercepted. Indeed, the Supreme
Court’s disposition of the case lays to rest any distinction even
between the one who knows and the one who has reason to
know. The Court reversed and remanded, directing entry of
judgment for the defense on the constitutional theory. The
record before the Court did not establish whether the defendants
knew or only had reason to know of the unlawful obtaining of
the conversations. If there were any such distinction in the High
Court’s view, the disposition would have been a vacatur and
remand for the lower courts to establish upon which side of the
“distinction” their case fell – that is, to determine whether the
respondents knew or only had reason to know. As the Court
made no such disposition, there is plainly no such distinction of
constitutional magnitude.
9
The Supreme Court having decided the very issue of this
case, that is, whether the United States (or Florida) can
constitutionally bar the publication of information originally
obtained by unlawful interception but otherwise lawfully
received by the communicator, my opinion on whether that
decision is correct or incorrect matters little. Nonetheless, I will
venture to say that an opposite rule would be fraught with
danger. Just as Representative McDermott knew that the
information had been unlawfully intercepted, so did the
newspapers to whom he passed the information. I see no
distinction, nor has Representative Boehner suggested one,
between the constitutionality of regulating communication of the
contents of the tape by McDermott or by The Washington Post
or The New York Times or any other media resource. For that
matter, every reader of the information in the newspapers also
learned that it had been obtained by unlawful intercept. Under
the rule proposed by Representative Boehner, no one in the
United States could communicate on this topic of public interest
because of the defect in the chain of title. I do not believe the
First Amendment permits this interdiction of public information
either at the stage of the newspaper-reading public, of the
newspaper-publishing communicators, or at the stage of
Representative McDermott’s disclosure to the news media. Lest
someone draw a distinction between the First Amendment rights
of the press and the First Amendment speech rights of
nonprofessional communicators, I would note that one of the
communicators in Bartnicki was himself a news commentator,
and the Supreme Court placed no reliance on that fact.
In sum, I respectfully dissent.