concluding that “[t]he Martins violated § 2511 not once, but twice — first when they intercepted the call and second when they disclosed it to McDermott”
How later courts described this case
- concluding that “[t]he Martins violated § 2511 not once, but twice — first when they intercepted the call and second when they disclosed it to McDermott”
- "What . . . is being punished . . . here is not conduct dependent upon the nature or origin of the tapes; it is speech dependent upon the nature of the contents"
- “Boehner D.C. Cir. I”
Written by the judges who cited it.
The opinion
Opinion filed by
Circuit Judge GINSBURG
concurring in the judgment and in Parts I, II.B, and II.D (except the first and last paragraphs) of the opinion for the Court:
Although I agree that § 2511(l)(c) * is not unconstitutional as applied in this case, I find it unnecessary, in order to reach *479 that conclusion, to address a number of the questions addressed by Judge Randolph. Specifically, I assume rather than decide that (1) McDermott’s delivery of the tape to the newspapers constitutes speech protected by the First Amendment to the Constitution of the United States — a proposition that no party to the case disputes; and (2) the holding of Florida Star, namely, that publication of “lawfully obtained,] truthful information about a matter of public significance ... may not constitutionally [be] punishfed] ... absent a need to further a state interest of the highest order,” 491 U.S. 524, 533 , 109 S.Ct. 2603 , 105 L.Ed.2d 443 (1989) (quoting Smith v. Daily Mail Publ’g Co., 443 U.S. 97, 103 , 99 S.Ct. 2667 , 61 L.Ed.2d 399 (1979)), applies in principle to this ease. Because McDer-mott did not in fact lawfully obtain the tape, however, he may be punished under § 2511(l)(c), as he concedes, if the statute as applied to him survives intermediate scrutiny. I conclude it does for the reasons stated in the opinion for the Court.
Although by its terms Florida Star does not apply to all cases involving privately held information, see 491 U.S. at 534 , 109 S.Ct. 2603 (“To the extent sensitive information rests in private hands, the government may under some circumstances forbid its nonconsensual acquisition, thereby bringing outside of the Daily Mail principle the publication of any information so acquired”), we may assume, as McDermott argues, that Florida Star does apply here. Therefore, there is no need to decide whether “publication,” as used in footnote 8 of that case, must mean “publication by the media” and cannot mean “divulged by an individual,” as it does in the context of libel law. See Op. at 472-75. Nor need we delve into the ambiguities in the Court’s dictum regarding privately held information — under what circumstances? what is “sensitive information”? — because even if Florida Star applies to McDer-mott’s dissemination of the privately held information contained in the illegal wiretap, he did not lawfully acquire that information. McDermott therefore does not satisfy an essential element of the Florida Star test. See 491 U.S. at 536 , 109 S.Ct. 2603 (“The first inquiry is whether the newspaper ‘lawfully obtained] [the] information’ ”).
Indeed, McDermott concedes that the Martins, who violated § 2511(l)(a) in acquiring the information they passed on to him, are not protected by the principle of Florida Star. See Op. at 469. Nonetheless, he argues that he lawfully obtained the tape from them because no federal statute prohibits receiving the contents of an illegal wiretap. That does not mean, however, that McDermott “lawfully obtained]” the information. Though the Congress has not prohibited the receipt of information obtained by means of an illegal wiretap, it has prohibited the intentional and knowing disclosure of the contents of such a wiretap. Not only was the transaction in which McDermott obtained the tape therefore illegal' — albeit only the Martins could be punished for effectuating it — but McDermott knew the transaction was illegal at the time he entered into it. See Op. at 465, 476. 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. ** And the Court’s decision in Florida Star was not an exercise in empty formalism. See Op. at 471.
McDermott points nonetheless to this passage in Florida Star:
[T]hat the [Police] Department apparently failed to fulfill its obligation under [state law] not to “cause or allow to be ... published” the name of a *480 sexual offense victim [does not] make the newspaper’s ensuing receipt of this information unlawful. Even assuming the Constitution permitted a State to proscribe receipt of information, Florida has not taken this step.
491 U.S. at 536 , 109 S.Ct. 2603 (emphasis in original). The Court’s reference to a State “proscrib[ing] receipt of information” must be read in light of Florida’s decision not to prohibit all disclosures of the name of a rape victim. See id. at 540 , 109 S.Ct. 2603 (noting that statute prohibits only publication in mass media, but “does not prohibit the spread by other means of the identities of victims of sexual offenses”). Accordingly, the transaction in which the newspaper obtained the name was not illegal per se; if the newspaper had not later published the name, the police department would have violated no law. By contrast, the Congress prohibited the transaction in which McDermott obtained the tape, without regard to whether its contents were subsequently published as a result.
In any event, as noted in the opinion for the Court at 474 n.13, the remarks upon which McDermott relies are apparently confined to information furnished by the Government. The Court recognized in Florida Star that when information is in the hands of the Government “a less drastic means than punishing truthful publication almost always exists for guarding against the dissemination of private facts.” 491 U.S. at 534 , 109 S.Ct. 2603 . When sensitive information is in private hands, however, the same cannot be said; the Government has at once less power to prevent nonconsensual acquisition of the information and more need to prohibit its subsequent dissemination, whether by the thief or by one such as McDermott who received it from the thief. Cf id.
In sum, nothing in Florida Star requires us to accept McDermott’s claim that he “lawfully obtain[ed]” the tape simply because no statute prohibited his receiving it. Nor does McDermott provide us with any reason to extend Florida Star in a manner that, as the district court put it, permits “a criminal [to] launder the stains off illegally obtained property simply by giving it to someone else, when that other person is aware of its origins.” Boehner v. McDermott, No. Civ. 98-594, 1998 WL 436897 , at *4 (D.D.C. July 28, 1998). I therefore conclude only that one does not “lawfully obtain[],” within the intendment of that phrase in Florida Star, information acquired in a transaction one knows at the time to be illegal. See United States v. Riggs, 743 F.Supp. 556, 559 (N.D.Ill.1990) (criminal defendant who “did not actually steal the. [information, but] was completely aware that it was stolen when he received it” did not “lawfully obtain[ ]” it).
McDermott concedes, and both Boehner and the Government agree, that if Florida Star does not require the application of strict scrutiny in this case, then we should apply at most intermediate scrutiny. I agree the statute passes that test for the reasons given in the opinion for the Court at 467-70.
My conclusions regarding § 251 l(l)(c) apply as well to the Florida statute. See Op. at 466 n.2.
For example, the District of Columbia "prohibits solicitation and pimping, but does not criminalize prostitution itself.” United States v. Jones, 909 F.2d 533, 538 (D.C.Cir.1990). Therefore, a "John” who has sex in exchange for money, but who did not solicit that sex, has apparently violated no law. Only the most formal minded, however, would describe that sex as having been lawfully obtained.