Petition for Writ of Certiorari — Bartnicki v. Vopper

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| FILED

991687 APR19 200

No. 99- FICE OF THE CLERK

IN THE

Supreme Court of the United States

GLORIA BARTNICKI AND ANTHONY F. KANE, JR..

Petitioners,

Vv.

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, et al.,

Respondents.

On Petition for Writ of Certiorari to the

United States Court of Appeals

for the Third Circuit

PETITION FOR A WRIT OF CERTIORARI

ROBERT H. CHANIN

JEREMIAH A. COLLINS

Counsel of Record

BREDHOFF & KAISER, P.L.L.C.

805 Fifteenth Street, N.W.

Suite 1000

Washington, D.C. 20005

(202) 842-2600

RAYMOND P. WENDOLOWSKI

CYNTHIA R. VULLO

KOFF, WENDOLOWSKI,

FERGUSON & MANGAN, P.C.

22 East Union Street, Suite 115

Wilkes-Barre, PA 18701-2721

(570) 825-1296

WILSON-EPES PRINTING CO., INC. — (202) 789-0096 - WASHINGTON, D.C. 20001

A4U4poo

—— m= ——_--

| QUESTION PRESENTED

Whether the federal and Pennsylvania wiretapping statutes

violate the First Amendment insofar as they prohibit the disclo-

sure or other use of an unlawfully intercepted electronic com-

munication by a person who was not involved in the intercep-

tion itself, but who knows or has reason to know that the com-

munication was unlawfully intercepted.

(i)

PARTIES

In addition to the parties named in the caption, the complaint

included as defendants a Jane Doe and John Doe, who were

named as defendants-appellants in the Court of Appeals. The

United States of America intervened as of right in the Court of

Appeals pursuant to 28 U.S.C. § 2403.

—

TABLE OF CONTENTS

TABLE OF AUTHORITIES...........csccssscsssscscsssesssseeesssee

CONSTITUTIONAL PROVISIONS AND STATUTES

STITT se aiaidiedteiberdeendenceaiencseecennenseneneccenessatenscensessoecns

OU PRU UTS GI COUGAR cccccccccccccccscccccscccsscsccesesessscoesee

B. The Federal and State Statutory Schemes .................

I i srcrcrecenccntcanensscantatesons

REASONS FOR GRANTING THE WRIT o.oo.

A. THE DECISION BELOW CONFLICTS WITH

THE DECISION OF THE DISTRICT OF

COLUMBIA CIRCUIT IN BOEHNER V.

TIT, sitittdtecdendsnssstedunscstesstnntnennsecesstnsesenenens

B. THE DECISION BELOW STRIKES DOWN

IMPORTANT PROVISIONS OF A FEDERAL

STATUTE, AND CALLS INTO QUESTION THE

CONSTITUTIONALITY OF STATUTES EN-

ACTED BY A MAJORITY OF THE STATES .........

| C. THE DECISION BELOW DECIDES _IN-

CORRECTLY AN IMPORTANT QUES-

TION OF CONSTITUTIONAL LAW THAT HAS

BEEN RESERVED BY THIS COURT IN

PREVIOUS DECISIONS o.0....0.00ccccccscccosssssssssecosooessee

STITT titdetiacctatetnsteneccatecccnescsesssseennsnensasesecseusneceenese

TABLE OF AUTHORITIES

CASES Page

Bartnicki v. Vopper, 200 F.3d 109 (3d Cir. 1999)......... passim

Boehner v. McDermott, 191 F.3d 463 (DC.

ee 12, 13, 14, 18, 19

Cohen v. Cowles Media Co., 501 U.S. 663 (1991) ..... 15, 16

Cox Broadcasting Corp. v. Cohn, 420 U.S. 469

SEITE cxasntanersetsansnendnaneemmnieneieninimmaimnnnieasiinnts 15, 16, 17

Florida Star v. B.J.F., 491 U.S. 524 (1989) ............+- 15, 16, 17

Gelbard v. United States, 408 U.S. 41 (1972) «0.0.2... 6

Landmark Communications, Inc. v. Virginia, 435 U.S.

Se 15

New York v. O'Neill, 359 U.S. 1 (W959) ooo. cccceeeeeeeees 15

Nixon v. Shrink Missouri Gov't PAC, 120 S. Ct. 897

GID cececececccnccssssssensnesesessnsnsenqnstsansennenssenessenenensetanses 19

Oklahoma Publ'’g Co. v. Oklahoma County Dist. Court,

GDS, FAG 0 cena 15, 16, 17

Osborne v. Ohio, 495 U.S. 103 (199D) .0...ccccccceeeeeeees 19

Providence Journal Co. v. FB1, 602 F.2d 1010 (1st Cir.

i ne 11

Seattle Times v. Rhinehart, 467 U.S. 20 (1984) ............ 19

Smith v. Daily Mail Publ’g Co., 443 U.S. 97

a 15, 16, 17

Time, Inc. v. Hill, 385 U.S. 374 (1967) .......cccccccceeeeenees 15

Turner Broadcasting System, Inc. v. FCC, 512 US.

oe 19

United States v. Gainey, 380 U.S. 63 (1965) ...........0006 I4

Ward v. Rock Against Racism, 491 U.S. 781 (1989) .... 19

STATUTES AND CONSTITUTIONAL

PROVISIONS

U.S. Constitution, Amendment I...................cccccceceeeeeeees passim

Title If] Omnibus Crime Control and Safe Streets Act

of 1968, Pub. L. No. 90-351, 82 Stat. 311, as

amended by Electronic Communications Privacy

Act of 1986, 18 U.S.C. § 2510 ef Seq. -..ccccccceecseeeeees passim

EE 7,14

Oe 2,7, 14

cn eel a a te

TABLE OF AUTHORITIES

Page

Se 2,7, 14

A REISS Res oe eah tas ee eat a

ownwnw

STEERER EEE EEE EERE HEHE EERE EEE EEE EES

SEER EEE EE EEE EEE EEE TEETH EEE EEE EEE EEE EERE HEHE ES

Colo. Rev. Stat. § 18-9-303() oococccccccccccceccececereceeeeees

Mo. Rev. Stat. § 542.402.1(3).........ccccccccccsccccecseecsceeenees

ee ee ee > > oe =)

Or. Rev. Stat. § 165. S401 ME) ......cccccccceceseseececeseeeeeeens

Pennsylvania Wiretapping and Electronic Surveillance

Control Act, 18 Pa. Cons. Stat. § 5703 et seg. .........

18 Pa. Cons. Stat. § S703(2).................cesscscsssseesees 3,

18 Pa. Cons. Stat. § 570303) oo... ..ccccccceecseeeeeeeeens 3,

18 Pa. Coms. Stat. § S725(a) ...........cccccceceeeeeeeeeeees 4,

R.1. Gen. Laws § 11-35-21(a 2) oo.ccccccccccccccceseeeeeeeeeeee

Tex. Penal Code Ann. § 16.02(b)(3)........00cccccccccccceeeeees

Tex. Crim. Pro. Code Art. 18.20 § 16 oo.ccccccccccccceeeeees

ee en a? ne)

LEGISLATIVE MATERIAL

S. Rep. No. 90-1097 (1968), reprinted in 1968

nn 6

S. Rep. No. 99-541 (1986), reprinted in 1986

+ | | aes 6

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IN THE

Supreme Court of the Anited States

No.

GLORIA BARTNICKI AND ANTHONY F. KANE, JR.,

Petitioners,

Vv.

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, et al.,

Respondents.

On Petition for Writ of Certiorari to the

United States Court of Appeals

for the Third Circuit

PETITION FOR A WRIT OF CERTIORARI

Petitioners respectfully pray that a writ of certiorari issue to

review the judgment of the United States Court of Appeals for

the Third Circuit in Gloria Bartnicki and Anthony F. Kane, Jr.,

v. Frederick W. Vopper, et al., 200 F.3d 109 (3d Cir. 1999).

OPINIONS BELOW

The opinion of the United States Court of Appeals for the

Third Circuit is reported at 200 F.3d 109 (3d Cir. 1999), and is

reprinted in the appendix to this petition (“App.”) at 1a-49a. The

opinion of the United States District Court for the Middle Dis-

trict of Pennsylvania denying respondents’ motions for summary

judgment is unreported and is reprinted at App. 50a-58a. The

opinion of the District Court denying reconsideration of that rul-

ing is unreported and is reprinted at App. 59a-63a.

JURISDICTION

The Court of Appeals entered judgment on December 27,

1999. Timely petitions for rehearing and suggestions of rehear-

ing en banc were denied on February 25, 2000. App. 64a-67a.

The jurisdiction of this Court is invoked pursuant to 28 U.S.C. §

1254(1).

CONSTITUTIONAL PROVISIONS

AND STATUTES INVOLVED

The First Amendment to the United States Constitution pro-

vides in pertinent part that “Congress shall make no law .. .

abridging the freedom of speech.”

Title II of the Omnibus Crime Control and Safe Streets Act

of 1968, as amended by the Electronic Communications Privacy

Act of 1986, 18 U.S.C. § 2510 et seq., provides in pertinent part

as follows:

§ 2511. Interception and disclosure of wire, oral, or elec-

tronic communications prohibited.

(1) Except as otherwise specifically provided in this chap-

ter any person who —

* * * *

close, 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 communica-

tion, knowing or having reason to know that the in-

formation 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).

The Pennsylvania Wiretapping and Electronic Surveillance Con-

trol Act, 18 Pa. Cons. Stat. § 5703 et seq., provides in pertinent

part as follows: :

§ 5703. Interception, disclosure or use of wire, electronic or

oral communications

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, elec-

tronic or oral communication; or

(3) intentionally uses or endeavors to use the con-

tents 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.

* * * *

§ 5725. Civil action for unlawful interception, disclosure or

use of wire, electronic or oral communication

(a) Cause of action. — Any person whose wire, elec-

tronic 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 communication... .

STATEMENT OF THE CASE

A. Factual Background

Petitioner Gloria Bartnicki was employed by the Pennsylvania

State Education Association (“PSEA”) to provide services and

assistance to PSEA affiliates representing personnel employed

by various public school districts. One of those affiliates, repre-

senting teachers employed by the Wyoming Valley West School

District, was in contract negotiations during 1992-94, and Bart-

nicki was the chief negotiator for the Wyoming Valley teachers’

union. App. 2a. Petitioner Anthony Kane, a teacher at Wyo-

ming Valley West High School, was president of the union.

In May of 1993, Bartnicki and Kane had a telephone conver-

sation concerning the negotiations. Kane was speaking on a

conventional telephone at home; Bartnicki was in her car using

acellular phone. App. 2a. In their conversation, Bartnicki and

Kane expressed their exasperation with the fact that the School

Board had been “negotiating in the paper” by telling reporters

that the Board would not agree to more than a three percent pay

increase for the teachers. App. 3a. In condemning the Board's

posture, Kane stated hyperbolically: “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.” App. 2a.

The conversation was intercepted and recorded onto a cassette

tape by an unknown person, apparently using a scanner that

(ON Or, te ae

A em DS Meant

picked up the signal from Bartnicki’s cellular handset. The tape

then was placed by an unknown person in the mailbox of re-

spondent Jack Yocum, the president of the Wyoming Valley

West Taxpayers’ Association, an organization opposed to the

teacher union’s bargaining proposals. App. 3a.

After listening to the tape and recognizing the voices of Bart-

nicki and Kane, Yocum gave a copy of the tape to respondent

Frederick Vopper, who listened to the tape and then, on Sep-

tember 30, 1993, played the tape in its entirety on his talk show

carried by radio stations WILK and WGBI, which are operated

by respondents Keymarket of NEPA, Inc., and Lackazerne, Inc.,

respectively. /d.; JA 60a, 63a. Until that broadcast, Bartnicki

and Kane did not know that their conversation had been inter-

cepted and taped. JA 196a. It is undisputed that they intended

for their conversation to remain private; indeed, the tape shows

that Kane characterized the conversation as “very confidential.”

Appendix in the Court of Appeals (“JA”) 32a.'

' Vopper subsequently played the tape, or portions of it, over the air on

numerous occasions. App. 3a. Some other members of the media had re-

ceived copies of the tape before Vopper played it, but none of them played it

until Vopper had done so. For example, the Wilkes-Barre Times Leader

newspaper “had the tape from the spring of 93 and . . . they were not going to

use it and . .. the only reason they did is because Fred { Vopper] revealed it.”

JA 107a. One or more radio stations besides WILK and WGBI also re-

ceived the tape but declined to air it. JA 207a. Even after Vopper had

played the tape and other members of the media had obtained copies from

WILK, at least one station continued to be concerned about the propriety of

playing a tape of a telephone call that obviously had been recorded without

consent. JA 296a-297a.

There is evidence that the journalistic practices of Vopper and WILK

are far from the norm of responsible radio broadcasters. The Luzerne County

District Attorney testified that WILK is so irresponsible that WILK is the

only radio station to which the District Attorney's office refuses to send its

press releases. JA 159a-160a.

B. The Federal and State Statutory Schemes

Both the United States Congress and the Pennsylvania legisla-

ture have enacted statutes that prohibit the conduct in which

Yocum, Vopper, and the respondent radio stations engaged.

In 1968, Congress found that “[t}he tremendous scientific and

technological developments that have taken place in the last

century have made possible today the widespread use and abuse

of electronic surveillance techniques. As a result of these de-

velopments, privacy of communication is seriously jeopard-

ized.” S. Rep. No. 90-1097, at 67 (1968), reprinted in 1968

U.S.C.C.A.N. 2154. More specifically, Congress found as fol-

lows:

Commercial and employer-labor espionage is becoming

widespread. It is becoming increasingly difficult to conduct

business meetings in private. Trade secrets are betrayed.

Labor and management plans are revealed. No longer is it

possible, in short, for each man to retreat into his home and

be left alone. Every spoken word relating to each man’s

personal, marital, religious, political, or commercial con-

cerns can be intercepted by an unseen auditor and turned

against the speaker to the auditor’s advantage. [/d.]

In 1986, Congress found that the development of cellular

telephones, computers, and other new means of electronic

communication had made the problem even worse. “[T]remen-

dous advances in telecommunications and computer technolo-

gies have carried with them comparable technological advances

in surveillance devices and techniques,’ increasing the risk that

communications “may be open to possible wrongful use and

public disclosure by . . . unauthorized private parties.” S. Rep. |

No. 99-541, at 3 (1986), reprinted in 1986 U.S.C.C.A.N. 3557.

Congress’ response to these problems was to adopt a “com-

prehensive scheme for the regulation of wiretapping and elec-

tronic surveillance,” Gelbard v. United States, 408 U.S. 41, 46

oe ae

ee en ee

ee es

(1972), expressing a “fundamental policy adopted by Congress,”

id. at 47. That statutory scheme is Title II] of the Omnibus

Crime Control and Safe Streets Act of 1968, Pub. L. No. 90-

351, 82 Stat. 311, as amended by the Electronic Communica-

tions Privacy Act of 1986, Pub. L. No. 99-508, 100 Stat. 1848,

18 U.S.C. § 2510 et seq.

Consonant with the findings made by Congress, Title III

broadly prohibits both the interception of electronic communica-

tions and the subsequent use of intercepted communications.

With certain enumerated exceptions for specified law enforce-

ment activities, the statute makes it unlawful “to intercept or

endeavor to intercept, any wire, oral, or electronic communica-

tion.” 18 U.S.C. § 2511(1)(a). And the statute contains three

provisions which, together, prohibit comprehensively the subse-

quent use of unlawfully intercepted communications. The stat-

ute prohibits in broad terms “us[ing], or endeavor[ing] to use,

the contents of any wire, oral, or electronic communication,

knowing or having reason to know that the information

was obtained through [unlawful] interception.” 18 U.S.C.

§ 2511(1)(d). To make clear that disclosure is included among

the prohibited uses of such communications, the statute specifi-

cally prohibits “intentionally disclos[ing], or endeavor[ing] 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 [unlawful] intercep-

tion.” 18 U.S.C. § 2511(1)(c). And a third provision makes

clear that the prohibition of the use of unlawfully intercepted

communications applies not only to private dealings, but to

every kind of government proceeding as well—federal, state,

and local. 18 U.S.C. § 2515.

Title Ill provides for a civil action by “any person whose

wire, oral, or electronic communication is intercepted, disclosed,

or intentionally used in violation of [the Act].” 18 U.S.C.

§ 2520(a).

Pennsylvania has enacted a Wiretapping and Electronic Sur-

veillance Control Act, 18 Pa. Cons. Stat. § 5703 et seq., which

contains provisions very similar to the relevant portions of Title

Ill. The Pennsylvania statute prohibits “intentionally us[ing] or

endeavor[ing] to use the contents of any wire, electronic or oral

communication . . ., knowing or having reason to know, that the

information was obtained through the interception of a wire,

electronic or oral communication,” id. § 5703(3), and “inten-

tionally disclos[ing] or endeavor[ing] to disclose” the contents

of such a communication, id. § 5703(2). A civil action is made

available to “[a]ny person whose wire, electronic or oral com-

munication is intercepted, disclosed or used in violation of this

chapter.” /d. § 5725(a).

A majority of the states have enacted similar provisions.”

C. Proceedings Below

Bartnicki and Kane sued Yocum, Vopper, WILK and WGBI

under both the federal and statue statutes, for having used and

? In dissent, Judge Pollak identified twenty-one states besides Pennsyl-

vania, as well as the District of Columbia, that have “enacted provisions

which, like the federal statute, (1) prohibit disclosure by one who knows or

has ‘reason to know’ that [an] interception was unlawful, and (2) authorize

civil damage actions against one who discloses or uses such unlawful inter-

ception.” App. 44a. At least two states not listed by Judge Pollak — Missouri

and Texas - also fit that description. See Mo. Rev. Stat.

8§ 542.402.1 (3), (4), 542.418.2(1); Tex. Penal Code Ann. § 16.02(b)(2),

(3); Tex. Crim. Pro. Code Art. 18.20 § 16. And at least five other states have

similar prohibitions, which apparently were not listed by Judge Pollak be-

cause he included only states that authorize “civil damage actions.” App.

44a. These five states make it a criminal offense to disclose or otherwise to

use a communication that a person knows or has reason to know was unlaw-

fully intercepted, but the availability of a civil remedy is unclear. See Alaska

Stat. § 42.20.300(d); Colo. Rev. Stat. § 18-9-303(c); Okla Stat. Ann. tit. 13, §

176.3.3, .4; Or. Rev. Stat. § 165.540(1 )(e); R.1. Gen. Laws § 11-35-21(a)(2),

(3). Under the Third Circuit’s holding, which does not turn on whether the

sanction for a violation is criminal, civil, or both, all of these state statutes

would be unconstitutional.

disclosed the tape of their intercepted telephone conversation.

Cross-motions for summary judgment were denied by the Dis-

trict Court, App. 50a-58a, and that court denied respondents’

motion for reconsideration, App. 59a-63a.

The District Court then certified two questions for appeal

pursuant to 28 U.S.C. § 1292(b): “(1) whether the imposition of

liability on the media Defendants under [Title II] and the Penn-

sylvania statute} solely for broadcasting the newsworthy tape

.. ., when the tape was illegally intercepted and recorded by un-

known persons who were not agents of Defendants, violates the

First Amendment; and (2) whether imposition of liability under

the aforesaid . . . Statutes on Defendant Jack Yocum solely for

providing the anonymously intercepted and recorded tape to the

media defendants violates the First Amendment.” App. 4a. Re-

spondents Vopper, WILK and WGBI petitioned for permission

to appeal, and respondent Yocum filed an answer to the petition

in which he joined the media defendants’ request. Jd. The

Court of Appeals granted the petition for permission to appeal.

After the case had been briefed and argued, the Clerk of the

Court of Appeals sent a letter to the United States Attorney pro-

viding notice pursuant to 28 U.S.C. § 2403(a), which grants the

United States the right to intervene in any action “wherein the

constitutionality of any Act of Congress affecting the public in-

terest is drawn in question.” The United States accepted that

invitation and filed a brief “to defend the constitutionality of

Title II] . . . as applied in this case.” Brief for the United States

in Bartnicki, et al. v. Vopper, et al., No. 98-7156, at 1 (3d Cir.).

PSEA was granted leave to file a brief amicus curiae, in which

it defended the constitutionality of the state and federal statutes

as applied to the conduct at issue in this case.

By a 2-1 vote, the Third Circuit reversed the District Court’s

order denying sum:nary judgment to the defendants. The Court

of Appeals announced its holding as follows: “We . . . hold that

the [state and federal] Wiretapping Acts fail the test of interme-

diate scrutiny [under the First Amendment] and may not consti-

tutionally be applied to penalize the use or disclosure of illegally

intercepted information where there is no allegation that the de-

fendants participated in or encouraged that interception.” App.

35a.

In reaching that conclusion, the court “focus[ed] on the

United States’... contention . . . that the provisions [of Title III

prohibiting the disclosure or other use of intercepted communi-

cations] promote privacy by eliminating the demand for inter-

cepted materials on the part of third parties.” App. 28a. The

court “was satisfied that this . . . justification does not rely on

the communicative impact of speech and, therefore, that the

Acts are property treated as content-neutral.” App. 23a. The

court therefore “adopt[ed] the government’s position that we

should apply intermediate scrutiny [rather than strict scrutiny] in

our analysis of the issue before us.” /d. The Third Circuit held

nonetheless that the challenged provisions cannot withstand

such scrutiny.

Stating that “[t]he connection between prohibiting third par-

ties from using or disclosing intercepted material and preventing

the initial interception is indirect at best,” App. 28a, and noting

that no evidence had been offered on the point, the Third Circuit

majority was “not prepared to accept the United States’ unsup-

ported allegation that the statute is likely to produce the hy-

pothesized effect.” Jd. The court further declared that “the gov-

ernment’s desired effect can be reached” by punishing those

who “participated in the interception,” making it unnecessary, in

the Third Circuit’s view, to allow recourse against third parties

who disclose or otherwise use communications that they know,

or have reason to know, were illegally intercepted by others.

App. 30a. And the majority was “also concerned,” id., that the

statute might deter the media “from publishing even material

that may lawfully be disclosed under the Wiretapping Acts,” id.,

because a reporter might be uncertain as to how the content of a

communication was obtained. (The United States had suggested

procedural rules that would alleviate any such concer, see App.

47a-48a (Pollak, J. dissenting), but the majority failed to men-

tion them.)

The Third Circuit recognized that, separate and apart from

whatever effect a prohibition of disclosure and other uses of in-

tercepted communications may have in deterring interception in

the first place, such a prohibition serves the government's “sig-

nificant interest,” App. 22a, in protecting privacy interests from

the harm caused directly by disclosure, which “compound|s}”

the “invasion of privacy” that is initiated by the unlawful inter-

ception of a communication. App. 21a (quoting Providence

Journal Co. v. FBI, 602 F.2d 1010, 1013 (ist Cir. 1979)). But

the majority declined to consider this justification for the chal-

lenged statutory provisions, other than to express the concern

that, under such a rationale, the statutes’ prohibition of disclo-

sure might be “subject to strict scrutiny as a content-based regu-

lation.” App. 23a.

Judge Pollak, sitting by designation, dissented. He disagreed

with the majority's view that “(t]he connection between prohib-

iting third parties from using or disclosing intercepted material

and preventing the initial interception is indirect at best.” App.

42a ((Pollak, J., dissenting) (quoting App. 28a) (majority opin-

1on)). And Judge Pollak sharply took issue with the majority’ s

refusal to consider the compounding of injury that is caused by

deliberate disclosure of an intercepted communication. As

Judge Pollak saw it, “unauthorized disclosure (or other use) of

private “onversations is a central aspect of the very evil the chal-

lenged statutory provisions are designed to combat.” App. 46a.

Petitioners Bartnicki and Kane moved for rehearing and sug-

gested rehearing en banc, as did the United States. The petitions

were denied, with the suggestion of rehearing en banc being re-

jected by a vote of 6 to 5. App. 65a, 67a.

R= ASONS FOR GRANTING THE WRIT

Certiorari should be granted because the decision below con-

flicts with a decision of the Court of Appeals for the District of

Columbia Circuit; strikes down provisions of both a federal and

a State statute; calls into questic= the constitutionality of provi-

sions enacted by a majority of (he .tates; and decides incorrectly

an important question of constitutional law reserved by this

Court in previous decisions.

A. THE DECISION BELOW CONFLICTS WITH THE

DECISION OF THE DISTRICT OF COLUMBIA CIR-

CUIT IN BOEHNER v. McDERMOTT

The holding of the Third Circuit in this case is that Title Ill

and its state counterparts “may not constitutionally be applied to

penalize the use or disclosure of illegally intercepted informa-

tion where there is no allegation that the defendants participated

in or encouraged that interception.” App. 35a. The District of

Columbia Circuit held precisely the opposite in Boehner v.

McDermott, 191 F.3d 463 (D.C. Cir. 1999).

As in this case, in Boehner there was no allegation that the

defendant, Representative James McDermott, had participated

in or encouraged the interception of any communication.

Rather, two private citizens who had no connection to McDer-

mott — the Martins — intercepted (by use of a scanner) a confer-

ence call in which the plaintiff, Representative John Boehner,

participated via cellular car telephone. In the course of the call,

then-Speaker of the House Newt Gingrich engaged in conduct

that might have violated the terms of an agreement Gingrich re-

cently had made with the House Ethics Committee. 191 F.3d at

465. The Martins taped the call and delivered the tape to

McDermott, who was then the ranking Democratic member of

the Committee. McDermott proceeded to give copies of the

tape to the media. /d.

The D.C. Circuit held that the First Amendment did not

shield McDermott from liability under Title III, despite the fact

that he played no role in the interception of the telephone call.

In holding that McDermott could be sued for having disclosed

the communication that had been intercepted by others, the D.C.

Circuit found sufficient both of the justifications for the prohibi-

tion of such disclosure that were deemed insufficient by the

Third Circuit in this case:

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 com-

pounded. 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 com-

munication; if they did so they would risk incriminating

themselves. It was therefore “essential” for Congress to im-

pose upon third parties, that is, upon those not responsible

for the interception, a duty of nondisclosure.

Id. at 470.

The conflict between the Third Circuit’s decision in this case

and the D.C. Circuit's decision in Boehner is clear and inescap-

able. The Third Circuit attempted to distinguish the cases, App.

33a-34a, but the attempt fails. It is true, as the court below

stated, that Boehner involved no media defendant, while this

case does. But the Third Circuit invalidated the statutes even as

applied to the non-media defendant in this case—respondent

Yocum. Furthermore, the Third Circuit's analysis refers broadly

to all “third parties,” App. 28a, not only to the media; and the

holding announced by the court makes no distinction between

media and non-media defendants. See App 35a. Indeed, the

Third Circuit acknowledged that “technically, defendant Yocum

in our case stands in the same position as McDermott, i.e., as the

source but not the interceptor.” App. 33a.’

B.THE DECISION BELOW STRIKES DOWN

IMPORTANT PROVISIONS OF A FEDERAL STAT-

UTE, AND CALLS INTO QUESTION THE CONSTI-

TUTIONALITY OF STATUTES ENACTED BY A

MAJORITY OF THE STATES

Even if there were no conflict in the circuits, certiorari would

be warranted in this case “to review the exercise of the grave

power of annulling an Act of Congress.” United States v.

Gainey, 380 U.S. 63, 65 (1965).

In holding that “the Wiretapping Acts fail the test of interme-

diate scrutiny,” App. 35a, the Third Circuit deprived subsections

disclosure and other uses of intercepted communications—of

virtually any independent force. By holding that the First

Amendment bars any application of those subsections except as

to persons who have participated in an unlawful interception,

the Third Circuit has taken subsections (c) and (d) off the books

except as to defendants who have violated subsection (a) as

well. The Third Circuit's near-total invalidation of these impor-

tant statutory provisions warrants review by this Court.

And, the fact that some thirty states also have enacted statu-

tory provisions that, under the Third Circuit's holding, would be

> The Third Circuit noted that McDermott, unlike Yocum, knew (albeit

only after the fact) the identity of the persons who intercepted the communt- —

cation, and McDermott may have actively sought to obtain the tape once he

knew it existed. App. 33a-34a. On the Third Circuit's own constitutional

analysis, those distinctions should make no difference. And under the Third

Circuit's holding, they certainly make no difference, because the rule stated

by the Third Circuit allows liability only where “the defendants participated

in or encouraged th/e] interception.” App. 35a (emphasis added). There

was no such participation or encouragement by the defendant in Boehner, any

more than there was in this case.

found unconstitutional, see supra note 2, is another powerful

reason why this Court should review the decision below. See

New York v. O'Neill, 359 U.S. 1, 3 (1959).

C. THE DECISION BELOW DECIDES INCORRECTLY

AN IMPORTANT QUESTION OF CONSTITUTIONAL

LAW THAT HAS BEEN RESERVED BY THIS COURT

IN PREVIOUS DECISIONS

In four previous cases, this Court has addressed the “tension

between the right which the First Amendment accords to a free

press, on the one hand, and the protections which various stat-

utes . . . accord to personal privacy against the publication of

truthful information, on the other.” Florida Star v. B.J.F., 491

U.S. 524, 530-31 (1989) (citing Smith v. Daily Mail Publishing

Co., 443 U.S. 97 (1979); Oklahoma Publishing Co. v. Okla-

homa County Dist. Court, 430 U.S. 308 (1977); Cox Broadcast-

ing Corp. v. Cohn, 420 U.S. 469 (1975)). Cf. Cohen v. Cowles

Media Co., 501 U.S. 663 (1991) (involving confidentiality re-

quirement imposed by agreement rather than by statute); Time,

Inc. v. Hill, 385 U.S. 374 (1967) (involving confidentiality re-

quirement imposed by common law); Landmark Communica-

tions, Inc. v. Virginia, 435 U.S. 829 (1978) (involving confiden-

tiality requirement imposed to promote asserted interests of the

judicial system rather than to protect privacy interests).

The number of occasions on which this Court has been called

upon to address facets of the problem presented here testifies to

the importance and difficulty of the constitutional issues that

arise when privacy interests and First Amendment concerns in-

tersect. This Court’s decisions illuminate the basic principles

that should be applied in this context, under which, we believe,

the Third Circuit’s decision is plainly incorrect. However, the

Court has not yet decided whether (or in what circumstances) a

statute that protects privacy interests by making it unlawful for a

person to disclose information unlawfully obtained by another

violates the First Amendment — indeed, the Court has explicitly

reserved that question. That important question is presented in

this case, and this case provides an ideal vehicle to resolve it.

a. In Florida Star, Smith, Oklahoma Publishing, and Cox

Broadcasting, this Court struck down statutes (or, in Oklahoma

Publishing, an injunction) that barred the media from reporting

particular facts. Each of those cases involved—and this Court

emphasized—five factors not present here. A brief considera-

tion of those five factors demonstrates that the question pre-

sented in this case remains open in this Court, and that the Third

Circuit’s analysis of that question is unpersuasive.

First, in each of the previous “privacy/First Amendment”

cases decided by this Court, the statute or court order that was

challenged prohibited only publication, not any other use, of the

information in question. Here, in contrast, § 2511( 1) prohibits

equally disclosure and all other uses of unlawfully intercepted

communications. Thus, unlike in the prior cases, there is no

singling out of speech for special sanction. Cf. Cohen v. Cowles

Media Co., 501 U.S. at 669 (generally applicable laws do not

offend the First Amendment simply because their prohibitions

apply to speech as well as to other activities).

Second, in each of the prior cases, the government had pro-

hibited publication by the media, or by some segment thereof,

but had left others free to disclose the information in question.

Florida Star involved a statute that applied only to “instru-

ment{s] of mass communication,” see 491 U.S. at 526 n. 1, 540;

the statute in Smith applied only to newspapers, see 443 U.S. at

98, 104-05; Oklahoma Publishing involved an injunction

against publication by “the news media,” see 430 U.S. at 308;

and Cox Broadcasting involved a statute that applied only to the

mass media, see 420 U.S. at 471 n. 1. Not only did this consti-

tute unequal treatment of speakers, but it undercut the force of

the government’s argument that there was a vital need to prevent

disclosure of the information in question. Title III, in contrast,

“does not target or single out the press,” Cohen, 501 U.S. at 670,

but prohibits all disclosure or other use of an unlawfully inter-

cepted communication by any person who knows or has reason

to know that the communication was unlawfully intercepted.

Third, in each of the prior cases, the government itself had

provided the media with the information in question, thus fur-

ther belying the claim that a vital state interest in the protection

of privacy was at stake. See Florida Star, 491 U.S. at 527 (re-

porter obtained the name of a rape victim from a police report

that was publicly available in the police pressroom); Smith, 443

U.S. at 99 (reporters obtained the name of a juvenile offender

“simply by asking . . . the police, and an assistant prosecuting

attorney”); Oklahoma Publishing, 430 U.S. at 309, 311 (re-

porter learned the name of a juvenile offender from a proceeding

in open court); Cox Broadcasting, 420 U.S. at 472-73 (reporter

learned the name of a rape victim from “public records available

for inspection”).

Fourth, in each of the prior cases, the government asserted

the right to prevent publication only of information on certain

specific topics: the name of an alleged victim (Florida Star:

Cox Broadcasting) or perpetrator (Smith; Oklahoma Publishing)

of acrime. Title III, in contrast, makes no distinctions based on

the subject matter of a communication.

Finally, because, as we have noted, in each of the prior cases

the information claimed to be confidential had been provided to

the media by the government, in none of those cases did this

Court decide “whether, in cases where information has been ac-

quired unlawfully by a newspaper or by a source, government

may ever punish not only the unlawful acquisition, but the ensu-

ing publication as well.” Florida Star, 491 U.S. at 535 n.8 (sec-

ond emphasis added).

b. This case presents the question thus reserved in Florida

Star, free of the factors that undermined the arguments of the

government in that case and in Smith, Oklahoma Publishing and

Cox Broadcasting.

The D.C. Circuit properly recognized in Boehner that Florida

Star and its precursors do not suggest that the statutory provi-

sions challenged here are unconstitutional. See Boehner, 191

F.3d at 471-76. The Third Circuit, on the other hand, although

acknowledging that none of this Court's precedents decides this

case, see App. 9a-12a, declared that “the [Supreme} Court has

generally tilted for the First Amendment in the tension between

press freedom and privacy rights.” App. 32an. 7. Ignoring all of

the crucial factors that were emphasized by this Court in the

Florida Star \ine of cases, the Third Circuit translated that per-

ceived “tilt” into a simplistic notion that state interests in pri-

vacy, no matter how strong, are “insufficient to justify . . . bur-

dens imposed on First Amendment freedoms.” App. 35a. That

is an untenable overreading of this Court’s cases, and should not

go unreviewed.

* * * *

The governmental interests at issue here are substantial.

Congress found that the ease with which electronic communica-

tions may be intercepted, and the harm that is caused when such

intercepted communications are disclosed or otherwise “turned

against the speaker,” see supra at 6, make it necessary to pro-

hibit such disclosure and use, both to protect privacy for its own

sake and because the absence of such protection “may unneces-

sarily discourage potential customers from using innovative

communications systems . . . [and] may discourage American

business from developing new innovative forms of telecommu-

nications and computer technology.” S. Rep. No. 99-541, at 5;

1986 U.S.C.C.A.N. 3559. Judge Pollak’s dissent and the D.C.

Circuit's decision in Boehner demonstrate convincingly that the

statutory provisions struck down by the Third Circuit are neces-

sary to protect those interests.*

* The Third Circuit's suggestion that these statutory purposes might be

deemed “content-based” and thus trigger strict scrutiny, App. 23a, is plainly

In sum, the decision below strikes down important provisions

of a federal statute, and calls into question the constitutionality

of statutes in a majority of the states, on the basis of an analysis

that squarely conflicts with Boehner, and that misapplies this

Court’s precedents in deciding an important constitutional ques-

tion that has not been, but should be, resolved by this Court.

wrong. As the Boehner court explained, a prohibition of the disclosure of

intercepted communications is not a content-based regulation, because liabil-

ity turns on “the method of acquisition not the contents of the communica-

tion.” 191 F.3d at 478. Strict scrutiny is not wiggered merely because a stat-

ute applies to certain communications but not to others, if the statutory dis-

tinction does not present a “risk of excising certain ideas or viewpoints from

the public dialogue,” Turner Broadcasting System, Inc. v. FCC, 512 U.S.

622, 642 (1994), and there is no danger that the distinction is based on “dis-

agreement with [a particular] message,” Ward v. Rock Against Racism, 491

U.S. 781, 791 (1989). See also Seattle Times Co. v. Rhinehart, 467 U.S. 20,

32, 34-35 (1984) (applying intermediate scrutiny to protective order requir-

ing nondisclosure of information received in discovery).

The Third Circuit also erred in refusing “to accept the . . . allegation,”

App. 28a, that prohibiting disclosure and other uses of unlawfully intercepted

communications will tend to deter such interception. As the D.C. Circuit

recognized in Boehner, the concept that “dry{ing] up the market” will dis-

courage unlawful activity is a commonsense proposition that underlies a

number of federal statutes. 191 F.3d at 469-70. Even without compiling

evidence on the point, it was “surely reasonable,” Osborne v. Ohio, 495 U.S.

103, 109 (1990), for Congress to apply that concept here. Cf, Nixon v. Shrink

Missouri Government PAC, 120 S. Ct. 897, 900 (2000) (“The quantum of

empirical evidence needed to satisfy heightened judicial scrutiny of legisla-

tive judgments will vary up or down with the novelty and plausibility of the

justification raised.”)

CONCLUSION

For the foregoing reasons, the Petition for Certiorari should

be granted.

Respectfully submitted,

ROBERT H. CHANIN

JEREMIAH A. COLLINS

(Counsel of Record)

BREDHOFF & KAISER, P.L.L.C.

805 Fifteenth Street, N.W.

Suite 1000

Washington, D.C. 20005

(202) 842-2600

RAYMOND P. WENDOLOWSKI

CYNTHIA R. VULLO

KOFF, WENDOLOWSKI,

FERGUSON & MANGAN, P.C.

22 East Union Sireet, Suite 115

Wilkes-Barre, PA 18701-2721

(570) 825-1296

APPENDICES

APPENDIX A

UNITED STATES COURT OF APPEALS

THIRD CIRCUIT

No. 98-7156

GLORIA BARTNICKI AND ANTHONY F. KANE, JR.

, FREDERICK W. VopPER, a/k/a FRED WILLIAMS:

’ ed KEYMARKET OF NEPA, INC., d/b/a WILK RApIO:

LACKAZERNE, INC., d/b/a WGBI RADIO; JANE Doe:

JOHN Dok; JACK Yocum,

FREDERICK W. VoppeR, a/k/a FRED WILLIAMS:

KEYMARKET OF NEPA, INC., d/b/a WILK RaApwo-;

LACKAZERNE, INC., d/b/a WGBI RADIO; JACK YOCUM,

Appellants,

UNITED STATES OF AMERICA, |

Intervenor.

Argued Oct. 5, 1998.

: oe 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 imposi-

tion of civil damages for the disclosure of portions of a tape

recording of an intercepted telephone conversation con-

* Hon. Louis H. Pollak, United States District Court for the Eastern

District of Pennsylvania, sitting by designation.

taining information of public significance when the defen-

dants, two radio stations, their reporter, and the individual

who furnished the tape recording, played no direct or indirect

role in the interception.

BACKGROUND

From the beginning of 1992 until the beginning of 1994,

Wyoming Valley West School District was in contract nego-

tiations 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

__. _ - athe negetiating-process- Bastimcki-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 un-

ion. Yocum served as president of the Wyoming Valley West

Taxpayers’ Association, an organization formed by local citi-

zens 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 Wyo-

ming 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, be-

cause this is, you know, this is bad news (undecipher-

able) 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 con-

tinued, “You don’t discuss this in public. . . . Particularly with

the press.” App. at 36.

This conversation, including the statements quoted above,

was intercepied and recorded by an unknown person, and the

tape left in Yocum’s mailbox. Yocum retrieved the tape, lis-

tened 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 broad-

cast simultaneously over WILK Radio and WGBI-AM. The

tape was also aired on some local television stations and writ-

len transcripts were published in some newspapers.

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

Ill 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, Bart-

nicki and Kane sought (1) actual damages in excess of

$50,000, (2) statutory damages under 18 USC.

§ 2520(c)(2), (3) liquidated damages under 18 Pa. Cons.Stat.

§ 5725(ay1), (4) punitive damages, and (5) attorneys’ fees

and costs.

Bartnicki, Kane, and the defendants each moved for sum-

mary 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 habil-

ity 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 ~

hability on the media Defendants under the [wiretapping stat-

utes} solely for broadcasting the newsworthy tape on the De-

fendant Fred Willams’ radio news/public affairs program,

when the tape was illegally intercepted’ and recorded by un-

known persons who were not agents of the Defendants, vio-

lates the First Amendment; and (2) whether imposition of |i-

ability under the aforesaid [wiretapping statutes} on Defen-

dant, Jack Yocum solely for providing the anonymously in-

tercepted 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.

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 Con-

trol 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, how-

ever, and may address any issue necessary to decide the ap-

peal. 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 “re-

quired 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 op-

posing 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).

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—

close, to any other person the contents of any wire,

oral, or electronic communication, knowing or hav-

ing reason to know that the information was ob-

tained through the interception of a wire, oral, or

electronic communication in violation of this sub-

section;

(d) intentionally uses, or endeavors to use, the

contents of any wire, oral, or electronic communi-

cation, knowing or having reason to know that the

information was obtained through the interception

of a wire, oral, or electronic communication in vio-

lation of this sub section . . .

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)(aXii), any person whose wire, oral, or electronic

communication is intercepted, disclosed, or intentionally

used in violation of this chapter may in a civil action re-

cover 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 cre-

ates civil and criminal causes of action against those who in-

tentionally 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 evi-

dence derived therefrom, knowing or having reason to

know that the information was obtained through the in-

terception of a wire, electronic or oral communication.

18 Pa. Cons.Stat. § 5703. It further provides:

(a) Cause of action—Any person whose wire, elec-

tronic 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 communication . .. .

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 in-

tercepted 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 re-

lief. 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 dam-

ages 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).

ll.

DISCUSSION

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 re-

cord 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 li-

able under the Wiretapping Acts. The District Court dis-

agreed. 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 ob-

tained 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 stat-

ute “adheres to the purpose of the act which was to protect

wire and oral communications and an individual’s privacy

interest in such.” Jd. The District Court concluded that genu-

ine 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 rea-

son 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 exclu-

sively 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 Geor-

gia statute making it a “misdemeanor to publish or broadcast

the name or identity of a rape victim.” Jd. 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 de-

ceased, 17-year-old rape victim where the reporter obtained

the information from official court records open to public in-

spection.

In the next case, Landmark Communications, Inc. v. Vir-

ginia, 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 partici-

pant in the proceedings who had the right to receive the infor-

mation 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 consid-

ered a West Virginia statute “making it a crime for a newspa-

per to publish, without the written approval of the juvenile

court, the name of any youth charged as a juvenile offender.”

10a

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 ac-

cused 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 informa-

tion 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 stan-

dards,” and (2) “if a newspaper lawfully obtains truthful in-

formation about a matter of public significance then state of-

ficials may not constitutionally punish publication of the in-

formation, absent a need to further a state interest of the high-

est order.” 491 U.S. at 102, 103, 109 S.Ct. 2324; accord Flor-

ida 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 defen-

dants in this case neither participated in the presumed inter-

ception 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 scru-

tiny.

Bartnicki and Kane respond by arguing that the informa-

tion at issue here was unlawfully obtained because the origi-

nal interception presumably was illegal. They conclude that

applying the Acts to hold the defendants liable is constitu-

tional 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

lla

first determining whether the information disclosed was “law-

fully” 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 news-

paper 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 cir-

cumscribing 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 informa-

tion 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 newspa-

pers, to criminal sanctions for divulging information regard-

ing proceedings before a state judicial commission which is

authorized to hear complaints as to judges’ disability or mis-

conduct, when such proceedings are declared confidential by

the State Constitution and statutes.” /d. at 830, 98 S.Ct. 1535.

Similarly, the Florida Star Court refused “appellant's invi-

tation to hold broadly that truthful publication may never be

punished consistent with the First Amendment.” 491 U.S. at

l2a

532, 109 S.Ct. 2603. It stated: “Our cases have carefully es-

chewed reaching this ultimate question, mindful that the fu-

ture 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 contro-

versy not by mechanically applying a test gleaned from Cox

and its progeny, but by reviewing First Amendment princi-

ples in light of the unique facts and circumstances of this

case.

The District Court based its conclusion that the damages

provision of the Wiretapping Acts may constitutionally ap-

plied 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

Bortnicki, slip op. at 8 (“Generally applicable laws ‘do not

offend the First Amendment simply because their enforce-

ment 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, “ ‘[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 oth-

mite

13a

ers.’ " 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 sin-

gles out the press. The District Court also opined that these

laws are not “specifically designed to chill free speech.” /d. at

7. Based on this finding, it concluded that “both acts are mat-

ters of general applicability” and, without further analysis,

denied defendants’ motion for summary judgment on the ba-

sis 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 im-

pose 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 lim-

ited.

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

l4a

the stories ran. He then sued the publishers of the newspapers

in state court and recovered damages under a theory of prom-

issory 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 Su-

preme Court stated, “{G]Jenerally applicable laws do not of-

fend 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 or-

ganizations.” /d. at 670, 111 S.Ct. 2513.

The Cohen opinion thus instructs that a law of general ap-

plicability, 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 or-

ganizations. The question remains whether the damages pro-

visions of the Wiretapping Acts may constitutionally be ap-

plied to penalize individuals or organizations for disclosing

material they know or have reason to know was illegally in-

tercepted who had no part in the interception.

In order to determine whether the provisions for civil sanc-

tions from the Wiretapping Acts may constitutionally be ap-

plied 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 ex-

pression” and (2) that “to the extent that Title III restricts

speech in particular cases, it does so in an entirely content-

15a

neutral fashion.” United States’ Br. at 22. It states that “{a]

Statute satisfies intermediate scrutiny, if it furthers an impor-

tant 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 dis-

closure provisions of the Wiretapping Acts merit only inter-

mediate 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 muti-

late{ J, or in any manner change[ }. . . such [a] certificate,”

was unconstitutional. /d. at 370, 88 S.Ct. 1673 (italics omit-

ted). 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 certifi-

cates issued by the Selective Service System, and there is

nothing necessarily expressive about such conduct.” /d. at

375, 88 S.Ct. 1673.' The Supreme Court nonetheless recog-

te 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).

16a

nized that O’Brien had burned his draft card as a form of pro-

lest 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 Su-

preme Court held that the statute was still a permissible regu-

lation. /d. at 376, 88 S.Ct. 1673. It reasoned that “when

‘speech’ and ‘non-speech’ elements are combined in the same

course of conduct, a sufficiently important governmental in-

terest in regulating the non-speech element can justify inci-

dental limitations on First Amendment freedoms.” /d. The

Court stated that such “a government regulation ts sufficiently

justified if it is within the constitutional power of the Gov-

ernment; if it furthers an important or substantial governmen-

tal interest; if the governmental interest is unrelated to the

suppression of free expression; and if the incidental restric-

tion on alleged First Amendment freedoms is no greater than

essential to the furtherance of that interest.” /d. at 377, 88

S.Ct. 1673.

In O'Brien and its progeny, the Supreme Court distin-

guished between “expressive conduct protected to some ex-

tent by the First Amendment” amid oral or written expres-

sion, 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). “[CJonduct that is

intended to be communicative and that, in context, would rea-

sonably he understood by the viewer to be communicative” is

“[s]ymbolic expression,” otherwise known as expressive con-

duct. /d. 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

17a

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, SOS 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 in-

termediate scrutiny applies here, the United States apparently

suggests that defendants’ actions in disclosing the contents of

the Bartnicki-Kane conversation are properly considered “ex-

pressive 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”’ and the media defendants’ “intentionally dis-

clos[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 “publish-

ing” information do not constitute speech, it is hard to imag-

ine 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 broad-

casts 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 ob-

served, “It is possible to find some kernel of expression in

almost every activity a person undertakes—for example,

* The complaint also alleges that Yocum “obtained a tape of the surrep-

titiously recorded telephone conversation,” App. at 149, but the complaint

does not allege that the mere obtaining of the tape violates either statue.

18a

walking down the street or meeting one’s friends at a shop-

ping mall—but such kernel is not sufficient to bring the activ-

ity 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 out-

side 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 en-

deavoring to use intercepted material encompasses more than

disclosure. The government asserts that it precludes, for ex-

ample, a person or company from using intercepted material

to develop a competing product, to craft a negotiating strate-

gy, or to justify taking disciplinary action against an em-

ployee. United States’ Br. at 22-23.

The government cites no support for the surprising proposi-

tion 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 prohib-

ited 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 pro-

hibited 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 “non-

speech” elements, we need not decide whether this statute

could properly be subjected to lesser scrutiny if applied to

prohibit “uses” that do involve such “non-speech” elements.

We merely hold that, when a statute that regulates both

19a

speech and conduct is applied to an act of pure speech, that

Statute must meet the same degree of First Amendment scru-

tiny 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): Phil-

lips 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 man-

ner regulation, that regulation need not meet the same high

degree of scrutiny. “Content-neutral” restrictions are valid un-

der 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.”* Clark, 468 U.S. at 293,

104 S.Ct. 3065.

* This standard is little different from that announced in O’Brien as

governing conduct regulations that incidentally restrict expressive behav-

ior. See Clark, 468 U.S. at 298, 104 S.Ct. 3065.

20a

We recognize that an argument could be made that the

Wiretapping Acts are content-based. Ordinarily, the distinc-

tion between permissible and impermissible regulation of

speech depends on whether the law at issue regulates the sub-

stantive 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 ref-

erence 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 sub-

ject 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 Thea-

tres, Inc., 475 U.S. 41, 106 S.Ct 925, 89 L.Ed2d 29 (1986),

however, suggests that we are not limited to a literal interpre-

tation of the phrase “content-neutral” but may determine

whether speech is content-neutral or content-based with ref-

erence to the government's proffered justification for the re-

striction. In Renton, the Supreme Court described “content-

neutral” speech restrictions as those that “are justified without

reference to the content ‘of the regulated speech.” /d. at 48,

2la

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 intercep-

tion of wire and oral communications may he authorized.”

S.Rep. No. 90-1097 (1968), re-printed 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 communica-

tions. Congress did not, however, define the privacy interest

that it intended the Act to protect.

As commonly understood, the right to privacy encom-

passes both the right “to be free from unreasonable intrusions

upon [one’s] seclusion” and the right to be free from “unrea-

sonable 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 If protect both these interests first,

by prohibiting the surreptitious interception of private com-

munications in the first instance—a highly offensive physical

intrusion on the victim's private affairs—and second, by cir-

cumscribing the dissemination of private information so ob-

tained.” Fultz, 942 F.2d at 401 (footnote omitted). The First

Circuit has similarly suggested that by enacting Title II] Con-

gress recognized “that the invasion of privacy is not over

when the interception occurs but is compounded by disclo-

sure.” Providence Journal Co. v. FBI, 602 F.2d 1010, 1013

22a

(Ist Cir.1979); see also Fultz, 942 F.2d at 402 (“Each time

the illicitly obtained recording is replayed to a new and dif-

ferent listener, the scope of the invasion widens and the ag-

grieved 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 inti-

mate facts concerning one’s life disclosed without one’s con-

sent. That right is a venerable one whose constitutional sig-

nificance 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 ille-

gally intercepted communication serves that interest by deter-

ring 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. Na-

tionalist 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, “{rjegulations 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 time communicative impact of speech that con-

tains 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

23a

such disclosure constitutes a “primary effect” of the disfa-

vored 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 dis-

closed without permission would be subject to strict scrutiny

as a content-based regulation.

We do not decide whether the Wiretapping Acts would in-

deed 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 pur-

pose 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 pro-

vision that imposes the underlying ban on unauthorized inter-

ception, ‘by denying the wrongdoer the fruits of his labor’

and by eliminating the demand for those fruits by third par-

ties.” 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.

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.” * Intermediate

* 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 legiti-

mate but less than compelling and a fit between means and end that is not

necessarily narrowly tailored but has more than just an incidental connec-

tion."’ Jay D. Wexler, Defending the Middle Way: Intermediate Scrutiny

as Judicial Minimalism, 66 Geo. Wash L.Rev. 298, 300 n. 15(1998).

24a

scrutiny is used by the Court in a wide variety of cases calling

for some balancing. Thus, intermediate scrutiny has been ap-

plied 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 promul-

gated 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. Ari-

zona 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 re-

viewed under less exacting scrutiny than strict scrutiny will

be upheld, each of the cases referred to above as applying in-

termediate 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

25a

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 in-

terest 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) (in-

validating 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 as-

serted government interest. See, e.g., Grace, 461 U.S-at 182,

103 S.Ct. 1702. It should also be noted that in making the ex-

amination into whether the means chosen were those appro-

priate to the government interest, the Court has not always

made a distinction between its analysis for purposes of inter-

mediate 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 inter-

est).

The test usually applied in First Amendment cases to con-

tent-neutral regulation requires an examination of whether the

regulation is “narrowly tailored to serve a significant gov-

ernmental interest” and “leave[s] open ample alternative

channels for communication.” Clark v. Community for Crea-

tive 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 in-

termediate scrutiny, has found that the regulation at issue, al-

beit designed to advance legitimate state interests, failed to

withstand that scrutiny. A review of illustrative cases pro-

vides 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

26a

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 ¢ 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 oné that resulted from the “constitu-

tional protection of the freedom of speech and press.” Jd. 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 paper 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 ap-

praise 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 Schnei-

der, 308 U.S. at 161, 60 S.Ct. 146). In Schad, the Court in-

validated 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

27a

restriction of protected activity.” Jd. 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 in-

termediate scrutiny. /d. at 77, 101 S.Ct. 2176; see also Geof-

frey 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 re-

strictive 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 Wire-

tapping Acts serve the government's interest in protecting

privacy by helping “maintain the confidentiality of wire, elec-

tronic, 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. How-

ever, 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 impos-

ing damages and counsel fees for the use and disclosure of

intercepted material on those who played no part in the inter-

ception.

The United States asserts that these provisions protect the

confidentiality of communications in two ways: (1) “by deny-

ing the wrongdoer the fruits of his labor” and (2) “by elimi-

nating the demand for those fruits by third parties.” United

States’ Br. at 33. In this case, however, there is no question

28a

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 dis-

closed the intercepted material is not before us.

We therefore focus on the United States’ second conten-

tion—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 ba-

sis 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 is likely to pro-

duce the hypothesized effect. See Landmark Communica-

tions, Inc. v. Virginia, 435 U.S. 829, 841, 98 S.Ct. 1535, 56

L.Ed.2d 1 (1978) (“The Commonwealth has offered little

> As the Supreme Court recently emphasized in invalidating a prohibi-

tion on the receipt of honoraria by government employees, “(w}hen the

government defends a regulation on speech . . . it must do more than sim-

ply ‘posit the existence of the disease sought to be cured’... It must dem-

onstrate 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).

29a

more than assertion and conjecture to support its claim that

without criminal sanctions the objectives of the statutory

scheme would he seriously undermined.”). Faced with noth-

ing “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 in-

terests, it must do so by narrowly drawn regulations de-

signed to serve those interests without unnecessarily in-

terfering 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 prophy-

lactic 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 Vil-

lage’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 inter-

cepted 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

30a

leafleting). Those who indirectly participated in the intercep-

tion, either by aiding or abetting, would also fall within the

sanctions provided by the statute. Therefore, the govern-

ment’s desired effect can be reached by enforcement of exist-

ing provisions against the responsible parties rather than by

imposing damages on these defendants.

We are also concerned that the provisions will deter sig-

nificantly more speech than is necessary to serve the govern-

ment’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 Wiretap-

ping Acts.

Reporters often will not know the precise origins of infor-

mation they receive from witnesses and other sources, nor

whether the information stems from a lawful source. More-

over, defendants argue that they cannot be held liable for use

and publication of information that had previously been dis-

closed. Assuming this is so, reporters may have difficulty dis-

cerning 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 Broad-

casting, 420 U.S. at 496, 95 S.Ct. 1029. The public interest

and newsworthiness of the conversation broadcast and dis-

closed 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 sug-

gests that this was said in anything other than a serious vein.

Certainly, even if no later acts were taken to follow through

3la

on the statement, and hence no crime committed, the fact that

the president of the school teachers’ union would counte-

nance the suggestion is highly newsworthy and of public sig-

nificance. 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 consti-

tutional 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 differ-

ence 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 re-

spective applications lies in the weight we give the factors to

be balanced. The dissent suggests the Supreme Court's deci-

sions in Schneider, Struthers, and Schaumburg are not perti-

nent to this case because the state interests in those cases (lit-

tered streets, annoying door-to-door proselytizers,° and

fraudulent charitable solicitors, respectively) were “not very

important.” The dissent contrasts those interests with the sig-

nificant governmental interest at issue here—that of main-

taining the confidentiality of wire, electronic, and oral com-

munications.

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 disclo-

sure of the name of a rape victim, the identity of a judge in a

® 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.

32a

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 un-

derlying the statutory and state constitutional provisions pun-

ishing disclosure of such information, the interests served by

the First Amendment must take precedence.’ It would be dif-

ficult to hold that privacy of telephone conversations are

more “important” than the privacy interests the states unsuc-

cessfully 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 legis-

lative landscape, where half of the states that prohibit wire-

tapping 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 wire-

tapping statutes have not included a damage provision but

because the incidence of state statutes, and hence “wide-

spread 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,” much less on those who were not in league

” Although we acknowledge that those decisions arose from a stricter

level of scrutiny than we employ here and somewhat different circum-

stances, 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 can-

didly 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.

* The opposing views of deterrence were noted in connection with

capital punishment in Chief Justice Burger's dissenting opinion in Fur-

33a

with the perpetrator. In determining whether a regulation that

restricts First Amendment rights “substantially serves [its as-

serted] 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 wiretap-

ping, 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 inter-

ception, 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), pre-

sented 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, ef

al.) which had printed the details of a conversation that been

[sic] illegally intercepted. Thus, for example, in the lead opin-

ion the court stated at the outset, “[nJor should we be con-

cerned with whether § 2511(1)(c) would be constitutional as

applied to the newspapers who published the initial stories

about the illegally-intercepted conference call.” Jd. 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,

man v. Georgia, 408 U.S. 238, 395-96, 92 S.Ct. 2726, 33 L.Ed.2d 346

(1972).

34a

i.e. as the source but not the interceptor, there is an indication

in Boehner that McDermott was more than merely an inno-

cent 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 con-

duct. Jd. 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 impo-

sition of damages merely for publishing information of public

significance because its original source acquired that informa-

tion 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 penal-

ize the publication of truthful information in at least four in-

stances. In three of the four cases, the statutes at issue pro-

tected 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 pro-

tect the state’s interest in an independent and ethical judici-

ary. See Landmark, 435 U.S. at 830, 98 S.Ct. 1535. Despite

the strength of the state interests asserted, the Supreme Court

35a

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 in-

terest in protecting privacy is not sufficient to justify the seri-

ous 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 govern-

ment’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 ap-

plied 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 am-

ple alternative channels for communication of information.

Ii.

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.

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

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 fed-

eral statute, against one who, so the plaintiff alleged, gave to

36a

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.' Today this court holds that the First Amendment

' In Boehner v. McDermott, the plaintiff, John Boehner, is a Republi-

can Representative who, together with other members of the Republican

leadership of the House of Representatives (including then Speaker Gin-

grich), was in 1996 party to a conference telephone call that was unlaw-

fully 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; Rep-

resentative 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 Repre-

sentative McDermott, but did not sue the New York Times or any other

newspaper. The district court dismissed Representative Boehner’s com-

plaint 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. Identi-

fying that potential distinction, the court was at pains to confine its analy-

sis 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 ano

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 po-

tential liability under § 2511(1)(c). McDermott’s behavior in turmng

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 ‘non-speech’ elements are combined in the sasne

37a

does bar a civil damage action brought, pursuant to the Fed-

eral 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 hav-

ing 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 [sic] 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 defendants who allegedly delivered to the media a copy of

course of conduct, a sufficiently important governmental interest in

regulating the non-speech element can justify incidental limitations on

First Amendment freedoms.” United States v. O’Brien, 391 U.S. 367,

376, 88 S.Ct 0673, 20 L.Ed.2d 672 (1968). The O'Brien framework is

the proper mode of First Amendment analysis in this ease. McDer-

mott's challenge is only to the statute as it applies to his delivery of the

tape lo newspapers. Whether a different analysis would govern if, for

instance, McDermott violated § 2511(1)(c) by reading a transcript of the

tape im a news conference, is therefore a question not presented here

Nor should we be concerned with whether § 2511(1)(c) would be con-

sututional as applied to the newspapers who published the initial sto-

ries about ilegally-intercepted conference call. The focus must be on

McDermott’s activity and on his activity alone.

(Ol F.3d @ 467.

The author of the court’s opinion was Judge Randolph. Judge Gins-

burg filed a concurring opinion, joining part (including the paragraphs just

quoted) of Judge Randolph's opinion. Judge Santelle filed a dissenting

Opinion,

38a

a tape of an allegedly wrongfully intercepted telephone con-

versation.” ;

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.”

? The Boehner v. McDermott court was at pains to point out the limited

scope of its ruling. See note |, supra. See also note 3, infra.

* Although I have expressed general agreement with the court's ana-

lytic 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 por-

tion of the intercepted telephone conference call, had such a newspaper

been sued. As the Boehner v. McDermott excerpt quoted in footnote |,

supra, makes clear, the court was doubtful that Representative McDer-

mott’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 Repre-

sentative 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 analo-

gous to that of Representative McDermott—while rejecting O'Brien as

the proper approach to the First Amendment claims of the media defen-

dants. However, the distinction is not one that I need pursue, because,

accepting for the purposes of the case at bar the court's comprehensive

39a

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 plain-

tiffs seeking damages for defendants’ alleged disclosure and

use of a taped telephone conversation of plaintiffs that defen-

dants 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.” | further agree with the court that the proper stan-

dard to be applied in testing the constitutionality of the fed-

eral 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. Commu-

nity for Creative Non-Violence, 468 U.S. 288, 293, 104 S.Ct.

3065, 82 L.Ed.2d 221 (1984).

Where I part company with the court is in its application of

intermediate scrutiny in this case.

rejection of OBrien, | nevertheless 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 im-

posed 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.

* 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 US

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.” /bid. And see id. at 295, 104 S.Ct 3065.

40a

The court begins by acknowledging what I take to be be-

yond dispute: namely, that the professed governmental inter-

est—the interest of the United States (which is presumably

also Pennsylvania's interest) in “maintain[ing] the confidenti-

ality 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 con-

versation was intercepted unlawfully is “narrowly tailored to

serve [that] significant governmental interest”—the court un-

dertakes to “focus on the United States’ . . . contention...

that the provisions promote privacy by eliminating the de-

mand 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 ac-

tually 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 ob-

4la

jectives of the statutory scheme would be seriously un-

dermined.”). 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 “pe-

ripherally 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 in-

terests, it must do so by narrowly drawn regulations de-

signed to serve those interests without unnecessarily in-

terfering 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 prophy-

lactic rules in the area of free expression are suspect.

Precision of regulation must be the touch-stone. . . .”

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 prohibit-

ing solicitation. Jd. 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 oc-

cupant.” 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,

42a

not by prohibiting leafleting). Those who indirectly par-

ticipated in the interception, either by aiding or abetting,

would also fall within the sanctions provided by the stat-

ute. 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: | take issue with the proposition that “[t}he connec-

tion 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 intercep-

tion 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 1s

prohibited—and made both a criminal offense and an event

giving rise to civil liability—both to protect parties to a com-

munication from an initial trespass on their privacy and to

protect them from subsequent disclosure (and/or other detri-

mental 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 im-

pose upon third parties, that is, upon those not responsible for

43a

the interception, a duty of non-disclosure.” Boehner vy.

McDermott, 191 F.3d at 470.

Second: Given the close nexus between the legislative pro-

hibition on unauthorized interception and the legislative

imposition upon “third parties, that is, upon those not respon-

sible 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 dam-

ages 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 con-

ducted by Virginia's Judicial Inquiry and Review Commis-

sion, the Court observed that “{t}he Commonwealth has of-

fered 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 confiden-

tial inquiry into alleged judicial misconduct] would be seri-

ously 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 confi-

dentiality 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

44a

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

pot dispositive, we note that more than 40 States having

similar commissions have not found it necessary to en-

force confidentiality by use of criminal sanctions against

nonparticipants.

435 US. 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) pro-

hibit 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 Dela-

ware and New Jersey—Pennsylvania’s Third Circuit siblings.

See 11 Del.Code Ann., § 1336 (1996); NJ. 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 chal-

lenged by defendants in the case at bar.”

* Fla. Stat. Ann. §§ 934.03, 812.15; Haw. Rev.Stat. §§ 803-42(a)3),

803-48: Idaho Code §§ 18-6702, 18-6709; 720 Il. Comp. Stat. Ann. 5/14-

2. 5/14-6: lowa Code §§ 808B.2(1\(c), 808B.8; La.Rev.Stat. Ann.

§§ 15:1303 A(3), 15:1312; Md. Code Ann. §§ 10-402(aX(2), 10-410;

Mich. Comp. Laws Ann. §§ 750.539%e, 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:ll; N.C GenStat. §§ ISA-287, ISA-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-ID-3, 62-ID-12; Wis. Stat. § 968.31; Wyo.

45a

In short, there appears to be a widespread legislative con-

sensus that the imposition of civil liability on persons en-

gaged 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 an-

nounced today not only invalidates a portion of the federal

statute and the counterpart portion of the Pennsylvania stat-

ute, 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 con-

stitutional 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 re-

view, 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 US. 141,

63 S.Ct. 862, 87 L.Ed. 1313 (1943), and Village of Schaum-

burg 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 lit-

erature, in order to protect homeowners from annoyance), and

Village of Schaumburg (combating allegedly fraudulent chari-

table solicitation by banning all solicitation by groups not

disbursing 75% of receipts) involved situations in which

small towns imposed on traditional First Amendment activi-

— Ann. §§ 7-3-602, 7-3-609; See also DiC. Code Ann. §§ 23-542, 23-

46a

ties 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 lit-

terers (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). \n

the case at bar, unauthorized disclosure (or other use) of pri-

vate conversations is a central aspect of the very evil the chal-

lenged statutory provisions are designed to combat.

The court also notes that “[rjeporters 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 consid-

ering 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 law-

fully be disclosed under the Wiretapping Acts.” /bid. 1 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 conver-

sation. 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 con-

versation, would seem naturally to arise. Moreover, current

technology would make it relatively easy to determine

47a

whether the conversation had been the subject of a prior press

or broadcast report.°

In my judgment, a more substantial First Amendment diffi-

culty 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 con-

test 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 journal-

istic practice (or, indeed, of public disclosure by non-

journalists) can, I believe, be met by adoption of the proce-

dural proposals advanced in the brief for the United States:

In criminal prosecutions under Title II], scienter must

be proved beyond a reasonable doubt. In civil cases sci-

enter ordinarily would be subject to a conventional pre-

ponderance-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-

* 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.

Wa-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.” NY Times, January 10, 1997,

p. I, col.3.

48a

the-evidence standard may operate to deter the publica-

tion of information that was not the product of illegal

surveillance. To avoid that result, it might prove ap-

propriate 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) (requir-

ing 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

offendings regarding actual malice). See generally Wa-

ters 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 modi-

fications of burdens of proof and other procedural rules).

Brief for the United States, pp. 40-41 n.8.’

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

' The court's decision has the anomalous consequence of cloaking

Yocum, who is not a “media defendant,” with the First Amendment pro-

tections 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 for-

tity that the plaintiffs have elected to sue Yocum and the media defen-

dants (which the plaintiff in Boehner v. McDermott did not do), Yocum

becomes a third-party beneficiary of whatever First Amendment protec-

tions may accrue to the media defendants.

49a

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 pro-

hibit improper restraints on the voluntary public expres-

sion of ideas; it shields the man who wants to speak or

publish when others wish him to be quiet. There is nec-

essarily, and within suitably defined areas, a concomi-

tant freedom not to speak publicly, one which serves the

same ultimate end as freedom of speech in its affirma-

tive aspect.

50a

APPENDIX B

[Filed Jun. 17, 1996)

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,

FREDERICK W. VoppeR, a/k/a FRED WILLIAMS,

KEYMARKET OF NEPA, INc., d/b/a/_ WILK RADIO,

LACKAZERNE, INC., d/b/a WGBI RaAbtIo, JANE DOE and

JOHN DOE, and JACK YOCUM,

. Defendants.

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.

Sla

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 con-

versation 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.'

The Defendants’ acquisition of the intercepted com-

munication allegedly occurred as follows. A_ cassette

containing a recording of the conversation was placed in

Defendant Yocum’s mailbox without any markings

' Both parties have failed to supply any facts regarding the

imerception. However, both parties supply the court with theories on the

methods of intercepting cellular communications.

= 52a

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.

il. 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?

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

Bed. R. Civ. P. 56

S3a

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 y.

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 vy.

Casio, Inc., 42 F.3d 825, 830 (3d Cir. 1994); White vy.

Westinghouse Electric Company, 862 F.2d 56, 59 (3d Cir

1988). |

Ill. DISCUSSION

Media Defendants motion this court for the granting of

summary judgment because |) 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

S4a

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 (Sth Cir.), cert. denied, 115 S. Ct. 195

(1994). Media Defendants poini 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

SSa

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 un-

controverted 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)).

S6a

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.” Jd. 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.” /d. 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

S7a

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” [sic] 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

— judgment on the basis of the First Amendment also

ails.

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. S 2511 (1995); 18

Pa. Con. Stat. Ann. § 5704 (1995). The record reveals that

there exists a genuine issue of material fact with regard to

58a

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.

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APPENDIX C

[Filed Nov. 8, 1996]

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,

Vv.

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 Dog and JOHN Dog, and Jack

YOCUM,

Defendants.

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 II] 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

60a

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 1s

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.” /d.

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. NJ. 1991).

Ill. DISCUSSION

Defendants’ motion this court to reconsider our denial of

summary judgment because |) Plaintiffs were unable to

demonstrate the ability to prove at trial a necessary element of

their case, ie. that the conversation was intentionally

intercepted and therefore illegal and 2) Defendants are

protected by the First Amendment.

' 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.

6la

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. § 251]

(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 com-

munications 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 communication 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 De-

fendants point out that there exists a great likelihood that

the conversation was inadvertently intercepted and

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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

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