Amicus Curiae Brief — Bartnicki v. Vopper

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LY Le Supreme Court, U.S.

Nos. 99-1687 and 99-1728 FILED

IN THE OCT 25 2000

Supreme Court of the Cited botates

CLERK |

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ee ee

GLORIA BARTNICKI AND ANTHONY F. KANE, JR.,

i Petitioners,

FREDERICK W. VOPPER AKA FRED WILLIAMS, ETAL.,

Respondents.

UNITED STATES OF AMERICA,

Petitioner,

v.

FREDERICK W. VOPPER AKA FRED WILLIAMS, ETAL.,

Respondents.

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

BRIEF OF AMICI CURIAE

WFAA-TV AND ROBERT RIGGS

IN SUPPORT OF RESPONDENTS

WILLIAM D. SIMS, JR. LAURENCE H. TRIBE

THOMAS S. LEATHERBURY Counsel of Record

MARIE R. YEATES JONATHAN S. MASSEY

MICHAEL L. RAIFF 420 Hauser Hall

STACEY H. DORE 1575 Massachusetts Ave.

VINSON & ELKINS L.L.P. Cambridge, MA 02138

2001 Ross Ave., Suite 3700 (617) 495-4621

Dallas, TX 75201

(214) 220-7700 October 25, 2000

BATEMAN & SLADE, INC. BOSTON, MASSACHUSETTS

BEST AVAILABLE COPY

QUESTION PRESENTED

Whether the imposition of civil liability on a media defendant

under 18 U.S.C. § 2511(1)(c) and (d), and a parallel state statute,

for using or disclosing the contents of illegally intercepted

communications violates the First Amendment to the United

States Constitution.

TABLE OF CONTENTS

QUESTION PRESENTED

TABLE OF AUTHORITIES

INTRODUCTION AND SUMMARY OF ARGUMENT .. 3

ARGUMENT

WETETETTT TTT ee ere 7

I. THIS CASE IS GOVERNED BY THE RULE

OF PURINE GEE 6 5. 0eeesnessecsdssineleuee 7

Il. SECTION 2511(1)(C) IS SUBJECT TO

STRICT SCRUTINY AS A DIRECT

PROHIBITION ON SPEECH AS SUCH

AND NOTHING BUT SPEECH .................. 1]

III. = SECTION 2511(1)(C) AND SECTION 2511(1)(D)

ARE CONTENT-BASED PROHIBITIONS ...... 15

A. Section 2511(1)(c) and Section 2511(1)(d)

Are Content-Based By Their Terms .......... 15

B. The Statutory Purpose Is Content-Based ...... 19

IV. SECTION 2511(1)(C) AND SECTION 2511(1)(D)

FAIL INTERMEDIATE SCRUTINY ........... 21

V. THIS COURT SHOULD MAKE CLEAR THAT

A DEFENDANT MAY NOT BE HELD LIABLE IF

IT HAS A REASONABLE BASIS FOR BELIEVING

THAT THE INTERCEPTION WAS LAWFUL ...... 25

COLGAN 0000050005 0505 keer 30

;

:

[VE se w

TABLE OF AUTHORITIES

Cases Page

Amalgamated Food Employees Union Local 590 v. Logan

Valley Plaza, Inc., 391 U.S. 308 (1968) ..........56. 12

American Radio Ass'n v. Mobile Steamship Ass'n,

TE occvcecdesseoscoccccececeee 12

Arkansas Writers’ Project, Inc. v. Ragland,

EET TTT TT TTT TT TT Tre 18

Barnes v. Glen Theatre, Inc., 501 U.S. 560 (1991) .... 12,19

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

petition for cert. filed, 68 U.S.L.W. 3686

(Apr. 25, 2000) (No. 99-1709) 2.0... ccc eee eee es 3

Boos v. Barry, 485 U.S. 312 (1988) .. 0... cee eee 21

Buckley v. Valeo, 424 U.S. 1 (1976) (per curiam) ..... ll

Burson v. Freeman, 504 U.S. 191 (1992) ........600065 18

Butterworth v. Smith, 494 U.S. 624 (1990) ............ 12

Cameron v. Johnson, 390 U.S. 611 (1968) ............. 12

City Council of Los Angeles v. Taxpayers for Vincent,

le ee cece cek gb kssecnceooccces 13

City of Cincinnati v. Discovery Network, Inc.,

iE . 6 oe occu ecdcesecvcecccccecs 17

City of Erie v. Pap's A.M., 120 §. Ct. 1382 (2000) ....... 21

City of Ladue v. Gilleo, 512 U.S. 43 (1994) ..........4.. 12

Clark v. Community for Creative Non-Violence,

i en coon cea shecceceocecoes 12

Cohen v. California, 403 U.S. 15 (1971) .. 2... 6. ee ee ees 12

Cox Broadcasting Corp. v. Cohn, 420 U.S. 469 (1975) .. 7-8

Edenfield v. Fane, 507 U.S. 761 (1993) .........5.. 22, 24

FCC v. League of Women Voters, 468 U.S. 364 (1984) ... 18

Federal Election Comm'n v. National Conservative

Political Action Comm., 470 U.S. 480 (1985) ....... 14

Florida Star v. B.J.F.,

ED vc. cckbeeesececs 4, 5, 9-10, 11, 15

Forsyth County v. Nationalist Movement,

EE oc sci geacdecosccees iaecenee 21

iv

Cases (continued) Page

44 Liquormart, Inc. v. Rhode Island,

Oe Ge NED Rcd bndcdececesscoaedeseeené 22

Greater New Orleans Broadcasting Council v. United

SRR, Gy Gade COENEN 46006 vevecdbecseneness 22

Grosjean v. American Press Co., 297 U.S. 233 (1936) .. 11

Harper & Row v. Nation Enterprises, 471 U.S. 539 (1985) - 18

Ibanez v. Florida Dept. of Business & Professional

i Ds EE cccnedéuseccenssneandacs 22

Lambert v. California, 355 U.S. 225 (1957) ............ 28

Landmark Communications vy. Virginia,

ee EE 6 cd vedcuantodaansedendaeus 8, 10

Liparota v. United States, 471 U.S. 419 (1985). ......... 29

Lovell v. Griffin, 303 U.S. 444 (1938) .............046. 13

McIntyre v. Ohio Elections Comm'n, 514 U.S. 334 (1995) . 18

Meyer v. Grant, 486 U.S. 414 (1988) ............. 11-12

Miller v. French, 120 S. Ct. 2246 (2000)... ............ 14

Morissette v. United States, 342 U.S. 246 (1952) ..... 29-30

New York Times Co. v. United States,

403 U.S. 713 (1971) (per curiam) ................. 4,7

Nix v. Williams, 467 U.S. 431 (1984) ..............05.. 17

Oregon v. Elstad, 470 U.S. 298 (1985) ............445. 17

Peavy v. WFAA-TV, Inc., 37 F. Supp.2d 495

(N.D. Tex. 1999), aff'd in part, rev'd in part,

221 F.3d 158 (5" Cir. 2000) ........ 1-3, 5, 15-16, 25-26

Raley v. Ohio, 360 U.S. 423 (1959) ..... 0... ee eee eee 28

Ratzlaf v. United States, 510 U.S. 135 (1994) ........... 14

Regan v. Time, Inc., 468 U.S. 641 (1984) .............. 19

Rubin v. Coors Brewing Co., 514 U.S. 476 (1995) ....... 22

Schneider v. State, 308 U.S. 147 (1939) ............... 13

Segura v. United States, 468 U.S. 796 (1984) ........... 17

Simon & Schuster, Inc. v. Members of New York

Crime Victims Bd., 502 U.S. 105 (1991) ... 5, 10, 11, 16

Smith v. Daily Mail, 443 U.S. 97 (1979) ..........45. 8-10

Staples v. United States, 511 U.S. 600 (1994) ........... 30

Cases (continued) Page

Turner Broadcasting System, Inc. v. FCC,

FED Bs Ge GED cn ccccccccccsccccscccecsese 22

Turner Broadcasting System, Inc. v. FCC,

_ ) Fe — FPPPPTTTTTTTT rrr err 22

United States v. X-Citement Video, Inc.,

FED es SOD he ceeccccececcccceseces 27-28, 30

United States v. Nordic Village, Inc.,

FP es SEE cee cecesccccccecseccsceeuess 14

United States v. O’Brien, 391 U.S. 367 (1968) ........ 8,12

Ward v. Rock Against Racism, Inc.,

GIN A Fe ED ccc cccevccccesccsccccceceses 13

Washington Market Co. v. Hoffman,

Be Gs CU NED cocccceseccsesecesesusescess 14

Wong Sun v. United States, 371 U.S. 471 (1963). ........ 17

Statutes Page

pil ie > Fe PrrrrrTrrTiTrirrTr ry 29

18 U.S.C. § 2511(1)(c) and (d) ... 2.0... cee eee eee passim

PO ULBS. BARRED oc ccccccccccccccccccsocccs 14

Miscellaneous Page

Advisory Committee on Online Access and Security,

Comment, P004807, Comments of Entrust

Technologies, Inc. on April 19-20 Draft Report

of The Advisory Committee on Access and Security of

the Federal Trade Commission (April 27, 2000) ...... 23

Cordless Phones, CONSUMER REPORTS, Nov. 1998, p. 48 . 23

Hard of Hearing, NEWSWEEK, Dec. 13, 1999, p. 78 ...... 23

Model Penal Code (Tent. Draft No. 4, 1955)............ 29

INTEREST OF AMICI CURIAE

Amici WF AA-TV and Robert Riggs are defendants-appellees

in Peavy v. WFAA-TV, Inc., 37 F. Supp.2d 495 (N.D. Tex. 1999),

aff'd in part, rev'd in part, 221 F.3d 158 (5" Cir. 2000), which

presents the same First Amendment question as this case.' The

litigation in which amici are involved illuminates the issues

raised here and also gives amici a particular interest in this case.

Amici are the subject of a civil lawsuit by Carver Dan Peavy

(Peavy), a public official elected a trustee for the Dallas

Independent School District (DISD) from 1986 until 1995. 37 F.

Supp.2d at 502. By the early 1990s, Peavy controlled purchases

of insurance for DISD employees. He was a friend and business

associate of insurance agent Eugene Oliver, a felon who had

been convicted as an accomplice to murder in an insurance scam.

Together, Peavy and Oliver allegedly executed an insurance

kickback scheme affecting DISD employees.

Peavy’s telephone conversations were intercepted not by

petitioners WFAA-TV and Riggs, but by Peavy’s next-door

neighbor, Charles Harman. Harman testified that he consulted

the Dallas County District Attorney’s office regarding the

intercepted conversations. 37 F. Supp.2d at 502. According to

Harman, he asked Assistant District Attorney Bill Geyer whether

it would be lawful to listen to the cordless telephone

conversations, and Geyer responded, “Absolutely.” Jd. Harman

then inquired whether he could record the telephone calls.

According to Harman, Geyer replied, “Go ahead. Anything over

the air is free.” Jd. Harman called District Attorney John Vance

to inform him that Peavy had made certain threats against

Harman and that Peavy was engaged in possible improprieties

regarding DISD insurance. Vance instructed Harman to “keep

' Pursuant to Rule 37.6 of the Rules of this Court, amici state that no counsel

for a party authored this brief in whole or in part, and that no person or entity

other than amici or their counsel, has made any monetary contribution to the

preparation or submission of this brief. Pursuant to Rule 37.3, amici state that

the parties have consented to the filing of this brief. Letters of consent have

been filed with the Clerk of this Court.

2

taping.” /d. at 503. Vance met with Harman on January 17,

1995. Also present were Assistant District Attorney Mike Gillett

and Investigator Bob Jennings. According to Harman, all the

participants reassured him that his actions were legal. /d. at 503

n.3.

Harman also called WFAA-TV and said that he was in

possession of information concerning possible corruption of a

public official. Riggs, a senior reporter at WFAA-TV, met with

Harman, who assured him that his actions had been approved by

the Dallas County District Attorney and the Dallas Police

Department. /d. at 503. WFAA also contacted its attorney, Paul

Watler, to determine whether it was legal to use the tape

recordings. Watler advised that WFAA-TV could accept and

broadcast the tapes. This advice was confirmed in a written legal

memorandum dated January 4, 1995. /d

Harman provided WFAA with 18 tapes containing 188

telephone conversations between Peavy and others. /d. Several

weeks later, Riggs was informed by a law enforcement source

about a recent amendment to Title III. Riggs contacted Watler

to determine whether the interception of cordless telephone calls

was prohibited under the new law. Watler researched the issue

and learned that an October 1994 amendment made it unlawful

to intercept the radio portion of a cordless telephone call. Jd. He

immediately advised WFAA not to accept any additional tapes

from Harman, not to broadcast the tapes already in its

possession, and not to confront individuals about conversations

on the tapes. But Watler told WFAA and Riggs that they could

continue to investigate Peavy. WFAA and Ris followed this

advice. The original tapes were returned to Harman on or about

March 1, 1995. Jd. at 504. Copies of the tapes and all related

documents were delivered to Watler for safekeeping. /d.

Meanwhile, WFAA continued to investigate Peavy, without

receiving any more tapes from Harman. Riggs learned that

Peavy had been appointed by the president of the school board to

solicit new bids on group term life and disability insurance for

DISD employees. 37 F. Supp.2d at 504. Peavy had designated

~~ ie ee Oe << "

3

his associate Eugene Oliver as the exclusive insurance agent to

obtain these bids. The contracts were ultimately awarded to two

companies represented by Oliver. Thereafter, Oliver split his

commissions with Peavy and several others. Riggs also

uncovered a similar arrangement between Peavy and Oliver

involving a cancer insurance policy that Oliver wanted to

negotiate with Mary Kay Cosmetics. /d.

In the summer of 1995, WFAA aired a three-part series

regarding the relationship between Peavy and Oliver. WFAA did

not play or even mention any of the tapes received from Harman

during the broadcasts. 37 F. Supp.2d at 504. On July 31, 1995,

DISD Superintendent Chad Woolery announced an investigation

into the schoo! district’s insurance program. Peavy was stripped

of his authority over insurance procurement, and DISD stopped

paying agent commissions on all insurance contracts. Peavy later

resigned from the school board. /d.

The FBI conducted a parallel criminal investigation during

the same time period. Asa result of this investigation, Peavy and

Oliver were indicted on more than forty counts of official

bribery, conspiracy, and income tax evasion, although they were

eventually acquitted of all charges. 37 F. Supp.2d at 504.

The district court held that the First Amendment precluded

the imposition of liability on amici, but the Fifth Circuit

reversed. 221 F.3d 158. Amici will be filing a petition for

certiorari seeking review of the Fifth Circuit’s judgment, which

is due October 30, 2000.

INTRODUCTION AND SUMMARY OF ARGUMENT

The'case at bar, the Peavy case, and the case of Boehner v.

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

filed, 68 U.S.L.W. 3686 (Apr. 25, 2000) (No. 99-1709),

demonstrate the fundamental First Amendment rights abridged

by Sections 2511(1)(c) and (d), 18 U.S.C. § 2511(1)(c) and (d),

and by parallel state statutes. These cases involve both political

speech at the core of the First Amendment and the traditional

4

role of the press in disclosing corruption and malfeasance by

public officials.

I. This case should be decided according to a simple, bright

line rule: if a journalist breaks the law to obtain information, she

is subject to whatever generally applicable legal penalties may be

triggered by the act of misappropriation. However the journalist

has obtained information, she may be punished only for any

impropriety in obtaining it, and not for publishing it, absent a

countervailing governmental interest of the highest order. The

press has a First Amendment right to examine such information

without regard to how it was obtained, to make an independent

judgment as to whether it is newsworthy, and to disseminate it to

the public. This is the principle of Florida Star v. B.J.F., 491

U.S. 524 (1989).

Under the new rule proposed by the United States, by the

private petitioners, and by their amici in these cases, the

Pentagon Papers never would have been published by The New

York Times and The Washington Post. For the classified

documents in that landmark case had been “purloined from the

Government’s possession and . . . the newspapers received them

with knowledge that they had been feloniously acquired.” New

York Times Co. v. United States, 403 U.S. 713, 754 (1971)

(Harlan, J., dissenting). Petitioners’ amici go so far as to say that

there was no First Amendment issue at all in the Pentagon Papers

case because the press has no constitutional right to distribute

“other people’s speech.” Brief of Amicus Curiae Rep. John A.

Boehner in Support of Petitioners at 12. This position is plainly

untenable.

This Court should make clear that the proper First

Amendment analysis does not depend on whether the media

defendant may be deemed to have been on notice of, or have

participated in, the underlying illegal interception. Any person

who intercepts a wire or electronic communication, or procures

another person to do so, is subject to punishment under Section

2511(1)(a). The availability of separate sanctions under that

section provides /ess reason to punish the disclosure itself under

5

Section 2511(1)(c), not more. While media defendants may be

punished for their role in the interception, they should never be

punished for exercising their First Amendment rights.

II. Even if the rule of Florida Star did not apply here,

Section 251 1(1)(c) (the “disclosure” provision) would be subject

to strict scrutiny under conventional First Amendment analysis.

Section 2511(1)(c) is a direct prohibition on speech and nothing

but speech. Accordingly, it would be subject to strict scrutiny

even if it were deemed to be content-neutral. This Court should

hold that the matter of “disclosure” of intercepted

communications is governed solely by Section 2511(1)(c) and its

state-law counterparts, and may not be treated simply as a form

of “use” under Section 2511(1)(d) and corresponding state

statutes.

III. Apart from the rule of Florida Star, Section 2511(1)(c)

and Section 2511(1)(d) are subject to strict scrutiny under

conventional First Amendment doctrine because they are

content-based prohibitions on speech. They do not operate in a

mechanical fashion as a straightforward ban on the verbatim

broadcast of tapes of intercepted communications. Instead, Title

III requires a court to examine the communicative substance of

what a defendant says in order to determine whether it “uses” or

“discloses” “the contents of” an illegal interception. For

example, in the Peavy case the Fifth Circuit held that amici could

be held liable under Title III] even though WFAA did not play or

even mention any interception tapes in the television broadcasts.

221 F.3d at 166.

In an analogous way, the New York “Son of Sam” law at

issue in Simon & Schuster, Inc. v. Members of New York Crime

Victims Bd., 502 U.S. 105 (1991), was content-based because

it was “directed only at works with a specified content,” id. at

116 — namely, those manifesting a defendant’s “thoughts,

feelings, opinions or emotions regarding [his] crime.” Jd. at 109.

Just as the New York statute required a court to dissect the

content of a book or movie in order to determine whether it

expressed a defendant’s knowledge about his past misdeeds,

6

Title III requires a court to examine the communicative

substance of a broadcast or publication to determine whether it

“uses” or “discloses” “the contents of” a past misdeed (an

intercepted communication).

In addition, the prohibitions of Section 2511(1)(c) and

Section 251 1(1)(d) do not apply unless a court first examines the

social meaning of what the speech communicates and determines

that it is not “common knowledge.” This inquiry into how the

listener understands the speech underscores how content-based

the statute’s prohibition is.

Moreover, Title III’s purpose is likewise inextricably linked

to the content of speech. Title III is aimed at preventing the

psychic harm associated with the disclosure of private facts that

a telecommunications user wishes to shield from public view.

Such a purpose is content-based and independently triggers

strict scrutiny.

IV. Even if intermediate scrutiny were to apply, the

government could not meet its burden of justifying Section

2511(1)(c) and Section 2511(1)(d). The statute is a gratuitous

restriction on speech, penalizing expression while providing no

Clear assurance that it serves any important governmental

interest - much less any assurance that the statute is a narrowly

tailored means of achieving that interest.

V. However this Court decides the First Amendment

question presented, the Court should hold that the imposition of

liability under 18 U.S.C. § 2511(1)(c) and (d) requires a

showing, by clear and convincing evidence, that the defendant

“know{[s] or ha[s] reason to know that the information was

obtained . . . in violation of this subsection.” This Court should

make clear that this means a defendant may not be held liable if

it has a reasonable basis for believing that the interception was

lawful.

a

7

ARGUMENT

I. THIS CASE IS GOVERNED BY THE RULE OF

FLORIDA STAR.

A simple, bright line rule is warranted here: if a journalist

misappropriates information or otherwise breaks the law to

obtain it, she is subject to whatever generally applicable legal

penalties may be triggered by the act of wrongfully obtaining the

information. However the journalist has obtained information,

she may be punished only for any impropriety in obtaining it, and

not for publishing it, absent a countervailing governmental

interest of the highest order. This strict scrutiny principle is

apparent from a series of this Court’s decisions.

In 1971, The New York Times and The Washington Post

published the classified “Pentagon Papers,” which had been

purloined from the government and delivered to the press.

Justice Black, concurring in the per curiam judgment rejecting

the government's effort to restrain publication, opined:

(F]ar from deserving condemnation for their courageous

reporting, the New York Times, and other newspapers

should be commended for serving the purpose that the

Founding Fathers saw so clearly. In revealing the

workings of government that led to the Vietnam War, the

newspapers nobly did precisely that which the Founders

hoped and trusted they would do.

New York Times Co. v. United States, 403 U.S. 713, 717 (1971)

(Black, J., concurring).

In Cox Broadcasting Corp. v. Cohn, 420 U.S. 469 (1975),

this Court held that a state could not constitutionally impose civil

liability on a television station for broadcasting a 17-year-old

rape-murder victim’s name, which the station obtained from

courthouse records open to public inspection. This Court

acknowledged that “the century has experienced a strong tide

8

running in favor of the so-called right of privacy.” Jd. at 488.

Nonetheless, this Court held that, “[a]t the very least, the First

and Fourteenth Amendments will not allow exposing the press

to liability for truthfully publishing information released to the

public in official court records.” Jd. at 496. This Court found

inapplicable the intermediate scrutiny of United States v.

O’Brien, 391 U.S. 367, 376-77 (1968): “The Georgia cause of

action for invasion of privacy through public disclosure of the

name of a rape victim imposes sanctions on pure expression —

the content of a publication — and not conduct or a combination

of speech and nonspeech elements that might otherwise be open

to regulation or prohibition.” 420 U.S. at 695. “Once true

information is disclosed in public court documents open to

public inspection, the press cannot be sanctioned for publishing

it.” Id.

Next, in Landmark Communications v. Virginia, 435 U.S.

829 (1978), this Court held that Virginia could not punish a

newspaper that had breached the confidentiality of proceedings

before a commission on judicial misconduct. A third party

provided the information to the newspaper in violation of state

law. Jd. at 830 n.1, 832. The newspaper was aware of the

Virginia statute prohibiting publication. /d. at 832. This Court

observed that forty-seven states, the District of Columbia, and

Puerto Rico had established some type of judicial inquiry and

disciplinary procedures, and all of them provided for

confidentiality. Jd. at 834. Nevertheless, this Court held that,

once the information came into the hands of a newspaper,

Virginia could penalize its publication only by demonstrating a

clear and present danger to the administration of justice, a

standard it had failed to meet. See id. at 837 (First Amendment

does not permit “the criminal punishment of third persons who

are strangers to the inquiry, including the news media, for

divulging or publishing truthful information regarding

confidential proceedings of the Judicial Inquiry and Review

Commission”’). ;

Similarly, in Smith v. Daily Mail, 443 U.S. 97,101-02 (1979),

9

this Court held that a state could not punish a newspaper for

publishing a juvenile murder suspect’s name, because “a penal

sanction for publishing lawfully-obtained, truthful information

. . . requires the highest form of state interest to sustain its

validity.” This Court reaffirmed the principle that “if a

newspaper lawfully obtains truthful information about a matter

of public significance then state officials may not constitutionally

punish publication of the information, absent a need to further a

state interest of the highest order.” /d. at 103.

And in Florida Star v. B.J.F.,491 U.S. 524 (1989), this Court

reversed the imposition of civil damages liability against a

newspaper that published a rape victim’s name in violation of a

state statute. The name had been disclosed, in violation of state

law, by a Sheriff's Department employee. /d. at 527, 536. The

newspaper was aware, as evidenced by signs posted in the

newsroom, that “the names of rape victims were not matters of

public record, and were not to be published.” Jd. at 546 (White,

J., dissenting). Nonetheless, this Court reaffirmed Daily Mail

and warned that the press could not be expected to shoulder “the

onerous obligation of sifting through government press releases,

reports, and pronouncements to prune out material arguably

unlawful for publication.” /d. at 536.

Thus, this Court has held that, where the press manages to

obtain otherwise confidential information, it cannot be prevented

from publishing it — or be punished for having done so. The rule

of Florida Star does not depend on whether a statute is content-

based or content-neutral. The word “content” does not even

appear in Florida Star, Daily Mail, or Landmark. Rather than

focusing on content discrimination, this Court has emphasized

the need to resolve the conflict between truthful reporting and

government-protected privacy interests. See, e.g., Florida Star,

491 U.S. at 530. The conflict has been derisively resolved in

favor of speech.

The rule does not depend on whether the press obtains the

information from the government or from a private person. In

Daily Mail, for example, the press obtained the information

10

through witness interviews and other reporting techniques, not

through government sources. See 443 U.S. at 99, 104.

Nor does the rule depend on whether information has been

unlawfully acquired by a third party. This Court has held that a

source’s illegal conduct cannot be imputed to the media. For

example, in Landmark, the source apparently acted illegally in

disclosing the information, but this Court refused to impute that

illegal conduct to the press. See 435 U.S. at 831 n.1. Similarly,

in Florida Star, the Sheriff's Department violated a state statute

by releasing the victim’s name to the media, but this Court again

refused to impute the source’s illegal act to the media. See 491

U.S. at 536. In addition, applying a different test to so-called

tainted information would have no endpoint. Once tainted, the

information could never be used or published, creating an

enormous burden on the press to ascertain the precise origin of

any truthful information.

This Court should make clear that the proper First

Amendment analysis does not depend on whether the media

defendant may be deemed to have notice of, or to have

“participated” in, the underlying illegal interception. In both

Landmark and Florida Star, for example, the media could have

been deemed a “participant” in the underlying wrongdoing. In

the instant context, any person who intercepts a wire or

electronic communication, or procures another person to do so,

is subject to punishment under Section 2511(1)(a). The

availability of separate liability under that section provides /ess

reason to punish the disclosure under Section 2511(1)(c), not

more. Media defendants may be punished for whatever role they

play in an illegal interception, but not for exercising their First

Amendment rights. After all, even convicted felons retain their

First Amendment rights to speak about their crimes. See, e.g.,

Simon & Schuster, Inc. v. Members of New York Crime Victims

Bd. , 502 U.S. 105 (1991).

11

Il. SECTION 2511(1)(C) IS SUBJECT TO STRICT

SCRUTINY AS A DIRECT PROHIBITION ON

SPEECH AS SUCH AND NOTHING BUT SPEECH.

Even if the rule of Florida Star did not apply here, the

central statutory provision at issue in this case - the

“disclosure” prohibition of Section 2511(1)(c) - would be

subject to strict scrutiny under conventional First Amendment

analysis. Section 2511(1)(c) expressly targets speech and

nothing but speech: it prohibits the “disclosure” of the

“contents” of particular communications. Tellingly, although

the Solicitor General argues that Section 2511(1)(d) “does not

apply only to communicative activities” (Govt. Br. 23), he

makes no such claim with respect to Section 2511(1)(c).

Laws directly targeting and prohibiting speech as such are

properly subject to strict First Amendment scrutiny , whether or

not they are deemed to be content-based. See, e.g., Simon &

Schuster, Inc. v. Members of New York Crime Victims Bd. , 502

U.S. 105, 126 (1991) (Kennedy, J., concurring in judgment)

(cataloguing cases involving content-neutral laws in which the

Court has applied strict scrutiny).

In Grosjean v. American Press Co., 297 U.S. 233 (1936),

for example, this Court invalidated a sales tax imposed on

newspapers with a circulation of more than 20,000 per week -

regardless of their content or message - because a law “to limit

the circulation of information to which the public is entitled” is

wholly inconsistent with the First Amendment. /d. at 250.

Similarly, in Buckley v. Valeo, 424 U.S. 1 (1976) (per curiam),

this Court applied “exacting scrutiny” to expenditure

limitations that were “direct and substantial restraints on the

quantity” of speech itself, id. at 39, 44-45, even though they

were “neutral as to the ideas expressed.” Jd. at 39. In Meyer

v. Grant, 486 U.S. 414 (1988), this Court employed “exacting

scrutiny” to strike down a ban on the use of paid petition

circulators, which “impose{d] a direct restriction which

12

‘necessarily reduces the quantity of expression.’” Jd. at 419,

420 (ellipsis in original and citing Buckley). This Court held

that the law “limits the number of voices who will convey

appellees’ message and the hours they can speak and, therefore,

limits the size of the audience they can reach.” Jd. at 422-23.

See also City of Ladue v. Gilleo, 512 U.S. 43, 55 & n.13 (1994)

(content-neutral laws barua.ng entire category of speech may be

subject to strict scrutiny}, Butterworth v. Smith, 494 U.S. 624,

632 (1990) (applying strict scrutiny to content-neutral law that

prohibited grand jury witness from publicly disclosing his own

testimony after grand jury’s term ended).

This Court has never suggested that a direct limit on speech

as such may be subject to anything less than strict scrutiny.

Instead, this Court has held that intermediate First Amendment

scrutiny is reserved for certain special categories of laws, for

which Section 2511(1)(c) cannot qualify. For example, this

Court has applied intermediate scrutiny to restrictions on

“conduct” having merely an “incidental” effect on speech when

applied to a particular example of that conduct that happens to be

expressive. See, e.g., Barnes v. Glen Theatre, Inc., 501 U.S. 560,

567, 570 (1991) (plurality opinion); Clark v. Community for

Creative Non-Violence, 468 U.S. 288, 294, 298 (1984); United

States v. O’Brien, 391 U.S. 367, 377 (1968). The O'Brien test

is triggered only when “‘speech’ and ‘nonspeech’ elements are

combined in the same course of conduct,” 391 U.S. at 376 — that

is, where a law applies to “speech-plus” or to conduct

“intertwined” or “intermingled” with speech.? Where (as here)

a ban falls on speech, and speech alone, intermediate scrutiny is

wholly inapplicable. See Cohen v. California, 403 U.S. 15, 18

(1971) (“The only ‘conduct’ which the State sought to punish is

the fact of communication. Thus, we deal here with a conviction

? See American Radio Ass'n v. Mobile Steamship Ass'n, 419 U.S. 215, 231

(1974); Cameron v. Johnson, 390 U.S. 611, 617 (1968); Amalgamated Food

Employees Union Local 590 v. Logan Valley Plaza, Inc., 391 U.S. 308, 313

(1968).

13

resting solely upon ‘speech,’ . . . not upon any separately

identifiable conduct... . Cf United States v. O’Brien.”’).

Similarly, this Court has applied intermediate scrutiny to

time, place or manner rules restricting the noncommunicative

aspects of a speaker’s activity, such as its decibel level, in order

to limit its nuisance impact on others. See, e.g., Ward v. Rock

Against Racism, Inc., 491 U.S. 781 (1989). It has long been

axiomatic that, in order to qualify for less than strict scrutiny,

such rules must not interfere with a speaker’s ability to

communicate his or her chosen content to the chosen audience.’

Yet Section 2511(1)(c) prohibits the press from disclosing the

contents of intercepted communications at any time, in any place,

or in any manner.

Therefore, Section 2511(1)(c) is properly subject to strict

scrutiny as a direct prohibition on speech and nothing but speech.

The Solicitor General, perhaps recognizing the constitutional

infirmity in Section 2511(1)(c), suggests that the same speech

may be punished instead under the “use” provision of Section

2511(1)(d), or that the “disclosure” provision of Section

2511(1)(c) can be upheld as part of “a unitary, undifferentiated

prohibition on use.” Brief of the United States at 24. But that

argument ignores the text of Section 2511. The fact of the matter

is that in Section 2511(1)(c) Congress did single out

“disclosure,” and hence expression, for a special prohibition.

It is simply not the case that “disclosure” under Section

2511(1)(c) may be treated as a subset of “use” under Section

* See, e.g., Ward, 491 U.S. at 802; City Council of Los Angeles v. Taxpayers

for Vincent, 466 U.S. 789, 808 (1984) (under Schneider v. State, 308 U.S. 147

(1939), ban on leafleting in public streets cannot be considered time, place,

or manner rule); Lovell v. Griffin, 303 U.S. 444, 451 (1938) (ban on

handbilling in public areas could not be considered a “time, place, or manner”

rule because “[t]here is . . . no restriction in [the] application [of the ban on

circulars] with respect to time or place. It is not limited tc ways which might

be regarded as inconsistent with the maintenance of public order, or as

involving disorderly conduct, the molestation of the inhabitants, or the misuse

or littering of the streets”).

14

2511(1)(d) or that speech may be punished under both Section

2511(1)(c) and Section 2511(1)(d). If Congress had intended

public disclosure to be considered as a type of “use,” the

legislature would not have set out two separate statutory

provisions. The Solicitor General’s approach would render

Section 2511(1)(c) surplusage, in violation of the canon of

statutory interpretation that a court is “not at liberty to construe

any statute so as to deny effect to any part of its language. It is

a cardinal rule of statutory construction that significance and

effect shall, if possible, be accorded to every word. . . . [A]

statute ought, upon the whole, to be so construed that, if it can be

prevented, no clause, sentence, or word shall be superfluous,

void, or insignificant.” Washington Market Co. v. Hoffman, 101

U.S. 112, 115-16 (1879) (internal quotation omitted). See also

Miller v. French, 120 S. Ct. 2246, 2253 (2000); Ratzlaf v. United

States, 510 U.S. 135, 140-41 (1994); United States v. Nordic

Village, Inc., 503 U.S. 30, 36 (1992); Federal Election Comm'n

v. National Conservative Political Action Comm., 470 U.S. 480,

486 (1985).

In addition, the Solicitor General’s view that “disclosure”

may be treated as a species of “use” is unacceptable because it

would create an impermissible risk of double-counting and

multiple punishment. Section 2520(a)(2)(B), 18 U.S.C.

§ 2520(a)(2)(B), imposes statutory penalties of up to $10,000 per

violation. If a single instance of expression were treated as a

form of both prohibited “use” under Section 2511(1)(d) and

forbidden “disclosure” under Section 2511(1)(c), the media

defendant would become subject to double statutory penalties.

Therefore, this Court should hold that Section 2511(1)(d)

does not encompass “disclosure.” The Court should treat

“disclosure” as being governed solely by Section 2511(1)(c).

The Court should hold that Section 2511(1)(c) is subject to strict

First Amendment scrutiny, which the statute cannot survive.

15

Ill. SECTION 2511(1)(C) AND SECTION 2511(1)(D)

ARE CONTENT-BASED PROHIBITIONS.

Apart from the rule of Florida Star, Section 2511(1)(c) and

Section 2511(1)(d) are subject to strict scrutiny under

conventional First Amendment analysis for the further reason

that they are content-based prohibitions. First, by its terms the

statute operates according to the content of speech. Second, the

governmental purpose of Title III is inextricably linked to the

content of speech.

A. Section 2511(1)(c) and Section 2511(1)(d) Are

Content-Based By Their Terms.

Section 2511(1)(c) and Section 251 1(1)(d) operate according

to the content of expression disseminated by a defendant.

Although the Solicitor General has described the scope of Title

III as turning solely on the process by which information is

collected (e.g., an illegal wiretap) rather than on its content, see

Brief of the United States at 22, that description is inaccurate.

The statute is not a mechanical prohibition on the verbatim

broadcast of intercepted communications. Instead, Title III

requires a court to examine the content of what a defendant says

in order to make a judgment about the degree to which it “uses”

or “discloses” “the contents of” an illegal interception. 18

U.S.C. § 2511(1)(c), (d). Title III liability is based on whether

the substance of what a defendant says is sufficiently connected,

as a matter of communicative meaning and subject-matter

proximity, to “the contents of” an illegal interception.

For example, in the Peavy case the Fifth Circuit held that

amici could be held liable under Title III even though WFAA did

not play or even mention any interception tapes in the television

broadcasts. The Fifth Circuit held that liability could be imposed

if a court or jury examined the content of WFAA-TV’s speech

and determined that the “topics covered in their broadcasts” and

“the material reported in those broadcasts” demonstrated that the

16

speech “used” or “disclosed” “the contents of” an illegal

interception. 221 F.3d at 175.

Consider a hypothetical case in which a newspaper, having

conducted an independent investigation of a public official’s

financial records and tax returns as well as having been

provided with tapes of intercepted conversations involving him,

publishes an article accusing the official of “corruption.” A

court could not even begin to determine whether that accusation

“uses” or “discloses” “the contents of” an intercepted

communication without analyzing the expressive meaning of the

newspaper's charge and determining how closely it is linked to

the information learned from the tapes. What exactly did the

newspaper mean by “corruption,” and on what facts did the

newspaper base its accusation? If the newspaper had learned

from the official’s tax returns that he had engaged in sham

business transactions, while a taped phone call revealed that the

official had actually been bribed, does the charge of

“corruption” “use” or “disclose” “the contents of” the

intercepted communication? By calling the official “corrupt,”

did the newspaper mean simply that he was of low moral

standing or did it mean that he had transgressed anti-bribery

laws? The necessity of such an inquiry demonstrates the

content-based nature of the prohibition on speech.

In an analogous way, the “Son of Sam” law at issue in

Simon & Schuster, Inc. v. Members of New York Crime Victims

Bd., 502 U.S. 105 (1991), was content-based because it was

“directed only at works with a specified content,” id. at 116 —

i.e., those expressing a defendant’s “thoughts, feelings, opinions

or emotions regarding [his] crime.” Jd at 109. This Court

explained that the law would therefore extend to “such works as

... the Confessions of Saint Augustine, in which the author

laments ‘my past foulness and the carnal corruptions of my soul,’

one instance of which involved the theft of pears from a

neighboring vineyard.” Jd. at 121.

Title III functions, in effect, as a law requiring St. Augustine

17

to confess “the contents of” (18 U.S.C. § 2511(1)(c), (d)) his

eavesdropping. Just as the New York “Son of Sam” statute

requires a court to parse the content of a book or movie in order

to determine whether it reflects a defendant’s knowledge of his

past misdeeds, Title III requires a court to examine the

communicative substance of a broadcast or publication to

determine whether it “uses” or “discloses” “the contents of” a

past misdeed (an intercepted communication). Indeed, Title III

is more objectionable, in First Amendment terms, than the “Son

of Sam” law. Title III does not merely prohibit a person who

knows of an illegal interception from pocketing the financial

proceeds of that crime; Title III flatly prohibits the person from

“using” or “disclosing” the informational “contents” (18 U.S.C.

§ 2511(1)(c), (d)) flowing from the interception. This Court has

noted the difficulty of applying the “fruit of the poisonous tree”

doctrine of Wong Sun v. United States, 371 U.S. 471 (1963),

under which evidence and witnesses discovered as a result of a

search in violation of the Fourth Amendment are inadmissible.‘

The inquiry mandated by Title III is even more slippery and

subjective.

Under Title III, whether civil liability is imposed on a

defendant is determined precisely by what he says and by what

ideas and information he conveys. “[B]y any commonsense

understanding of the term, the ban in this case is ‘content-

based.’” City of Cincinnati v. Discovery Network, Inc.,507 U.S.

410, 429 (1993).

* See, e.g., Oregon v. Elstad, 470 U.S. 298, 304 (1985) (metaphor can be

“misleading”); Segura v. United States, 468 U.S. 796, 815 (1984) (“fruit of

poisonous tree” doctrine inapplicable where “the link between the illegality

and that evidence was sufficiently attenuated to dissipate the taint”); Nix v.

Williams, 467 U.S. 431, 442, 445 (1984) (doctrine is “admittedly drastic and

socially costly” and rigid application would be “formalistic, pointless, and

punitive”).

* Contrary to the argument of petitioners’ amici, see Brief of Amicus Curiae

Rep. John A. Boehner in Support of Petitioners at 4-8, the statute here is not

18

Prohibitions that operate according to the content of speech

trigger strict scrutiny. In Burson v. Freeman, 504 U.S. 191

(1992), for example, this Court applied strict scrutiny to a statute

prohibiting the solicitation of votes and the display of campaign

materials within 100 feet of a polling place. A plurality

explained that the statute’s terms, which “distinguish[ed] among

types of speech,” “require[d] that the statute be subjected to strict

scrutiny.” Jd. at 207. See also McIntyre v. Ohio Elections

Comm'n, 514 U.S. 334, 345 (1995) (applying strict scrutiny to

state statute prohibiting the distribution of anonymous campaign

literature, on the ground that “the category of covered documents

is defined by their content”).

Similarly, in FCC v. League of Women Voters, 468 U.S. 364

(1984), this Court invalidated a ban on “editorials” — regardless

of viewpoint or subject matter — by public broadcast stations

receiving government funds. This Court observed that “the

scope of [the] ban is defined solely on the basis of the content of

the suppressed speech”: “in order to determine whether a

particular statement by station management constitutes an

‘editorial’ proscribed by [the statute], enforcement authorities

must necessarily examine the content of the message that is

conveyed.” /d. at 383. In Arkansas Writers’ Project, Inc. v.

Ragland, 481 U.S. 221, 230 61987), this Court held that a law

taxing general interest magazines, but exempting newspapers and

religious, professional, trade, and sports journals, was content-

based because, “[i]n order to determine whether a magazine is

subject to sales tax, ... enforcement authorities must necessarily

like the Copyright Act, which restricts publication of a particular form of

expression: but does not restrict dissemination of the facts or ideas ‘expressed.

See Harper & Row v. Nation Enterprises, 471 U.S. 539, 556 (4985). -The

prohibition on speech in Section 251 1(1)(c) and Section 251 1(1)(d) is broader

than the Copyright Act because Title III bans the use or dissemination of facts

and ideas expressed regardless of the form the communication takes. In

addition, Section 2511(1)(c) and Section 2511(1)(d) cannot be applied

without examining the content of communication.

19

examine the content of the message that is conveyed.” The same

is true with respect to Section 251 1(1)(c) and Section 2511(1)(d).

The scope of the prohibition in Section 2511(1)(c) and

Section 2511(1)(d) is content-based for another, independent

reason: it turns on an assessment of the communicative effect of

the expression on “the minds of the [audience].” Barnes v. Glen

Theatre, Inc., 501 U.S. 560, 585 (1991) (Souter, J., concurring).

As the Solicitor General interprets Title III, it does not “prohibit

anyone from disseminating that which is already common

knowledge.” Brief of the United States at 44. “The disclosure

of the contents of an intercepted communication that had already

become ‘public information’ or ‘common knowledge’ would not

be prohibited by Section 2511(1)(c) and (d).” Jd (internal

quotation omitted).

Thus, when a media defendant publishes information — even

the verbatim transcript of an interception illegal under Title III —

the prohibitions of Section 251 1(1)(c) and Section 2511(1)(d) do

not apply unless a court first examines the communicative

substance of the speech and determines that it is not “common

knowledge.” This inquiry into how a listener understands the

speech and its social meaning renders the statute content-based.

See Regan v. Time, Inc., 468 U.S. 641, 648, 655-56 (1984)

(inquiry into color and size of currency reproduction is content-

neutral, but exception for currency reproductions serving

“philatelic, numismatic, educational, historical, or newsworthy

purposes” is content-based). See also Brief of Petitioners

Bartnicki and Kane at 23 n.6 (“A prohibition of disclosure of

information presented to a grand jury may be viewed as content-

based... .”).

B. The Statutory Purpose Is Content-Based.

Section 251 1(1)(c) and Section 2511(1)(d) are content-based

for the additional reason that the governmental purpose they are

designed to serve is derived completely from the content of

speech. The purpose of Title III, according to its proponents, is

20

to prevent the psychic harm associated with the disclosure of

private facts that a telecommunications user would wish to shield

from public view. The Solicitor General, for example, asserts

that the statute “protects against the aggravated injury to privacy

that occurs when illegally intercepted communications are then

exploited or publicly disseminated.” Brief of the United States

at 14. That is why “the interests underlying [Title III’s]

prohibition ‘fade once information already appears on the public

record.’” Jd. at 44 (citation omitted).

Similarly, the private petitioners insist that Title III is

necessary to protect “the participants to a private conversation

[who] speak unguardedly of their friends and adversaries, talk in

deepest confidence of their strategy regarding a labor dispute,

and even give out their telephone numbers.” Brief of Bartnicki

and Kane at 30. The private petitioners stress that, in the

intercepted conversation in this case, “Bartnicki gave Kane both

her home telephone number and her cellular carphone number.”

Id. at 5. They also note that “[w]e send sophisticated legal

documents, a bid, a love letter [electronically].” Jd. at 27

(quoting statement of Sen. Leahy). “None of us is so

circumspect in our speech that we can countenance the later use

of our most private utterances, played with the shattering impact

of a broadcast in our own words.” Jd. at 35-36 (quoting S.Rep.

No. 90-1097, at 175 (additional views of Sen. Hart)). Of course,

the sensitivity of these matters reflects the content-based nature

of the governmental mterest.

Petitioners’ amici similarly discuss the importance of

avoiding “the inhibition of candid exchanges,” and they compare

the interests underlying Title III — “protecting the confidentiality

of private conversations” — to interests which this Court has

previously found to trigger strict scrutiny: “protecting . . . the

names of young wrongdoers and the identity of innocent victims

of crime.” Brief Amicus Curiae of the Cellular

Telecommunications Industry Assn. in Support of Petitioners at

3, 13. Amici compare electronic interception to “the perusal of

one’s private diary” and “the Orwellian nightmare of having their

21

most private conversations broadcast over the Nation’s

airwaves.” Brief of Amicus Curiae Rep. John A. Boehner in

Support of Petitioners at 24, 27. Even the stated governmental

interest in fostering public willingness to use new

communications technologies rests, at bottom, on preventing

disclosures that would be embarrassing because of the content

they would expose to a media defendant’s listeners and readers.

Far from supporting the law, the interests purportedly served

by Section 2511(1)(c) and Section 2511(1)(d) reveal the

inevitably content-based nature of the statute. The interests stem

from the communicative impact of speech — what information it

contains and how the audience would understand it. Yet this

Court has instructed that “reaction to speech is not a

content-neutral basis for regulation.” Forsyth County v.

Nationalist Movement, 505 U.S. 123, 134 (1992); see also City

of Erie v. Pap’s A.M., 120 S. Ct. 1382, 1391 (2000) (plurality

opinion) (“If the government interest is related to the content of

expression, . . . then the regulation falls outside the scope of the

O’Brien test.”); Boos v. Barry, 485 U.S. 312, 321 (1988)

(opinion of O’Connor, J., joined by Stevens and Scalia, JJ.)

(“regulations that focus on the direct impact of speech on its

audience” — the speech’s “primary effects” — are not properly

treated as content-neutral).

Indeed, in another context the Solicitor General

acknowledges that a law is content-based if its “manifest purpose

[is] preventing public knowledge of the anticipated content .. .,

e.g., allegations that might injure a ‘judge’s reputation’ or

damage public ‘confidence in the judicial system.” Brief of the

United States at 31 n.9. Section 2511(1)(c) and Section

2511(1)(d) must therefore be deemed content-based. The statute

necessarily triggers strict scrutiny for this independent reason.

IV. SECTION 2511(1)(C) AND SECTION 2511(1) (D)

FAIL INTERMEDIATE SCRUTINY.

This Court has repeatedly held that, even under merely

22

intermediate scrutiny, restrictions on speech cannot be justified

by unadorned speculation, even if labeled “common sense.” In

Turner Broadcasting System, Inc. v. FCC, 512 U.S. 622

(1994), for example, a plurality of this Court expiained that a

reviewing court is obligated to exercise “independent judgment”

to ensure that the Government has “demonstrated 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.”

Id. at 665, 666. In Turner Broadcasting System, Inc. v. FCC,

520 U.S. 180 (1997), this Court noted, in addition to the

extensive factual findings made by Congress in the text of the

statute itself, “a record of tens of thousands of pages” supporting

the rules. /d. at 187 (internal quotation omitted). This Court

stressed that there was a “substantial basis to support Congress’

conclusion that a real threat justified enactment of the must-carry

provisions.” /d. at 196. This Court pointed to “specific support”

for Congress’ conclusion (id. at 197): “[s]ubstantial evidence”

and “contemporaneous stud[ies]” regarding market structure and

market power exercised by cable operators (id. at 202-03); and

“{e]mpirical research in the record before Congress” (id. at 208).

Nothing of the sort exists in this case.°

Section 2511(1)(c) and Section 2511(1)(d) impose an

«

* See also Greater New Orleans Broadcasting Council v. United States, 527

U.S. 173, 188 (1999) (“‘Th[e] [government’s] burden is not satisfied by mere

speculation or conjecture; rather, a governmental body seeking to sustain a

restriction on commercial speech, must demonstrate that the harms it recites

are real and that its restriction will in fact alleviate them to a material

degree.’”) (quoting Edenfield v. Fane, 507 U.S. 761, 770-71 (1993)); 44

Liquormart, Inc. v. Rhode Island, 517 U.S. 484, 505 (1996) (plurality

opinion) (rejecting government’s “common sense” justification: “without any

findings of fact, or indeed any evidentiary support whatsoever, we cannot

agree with the assertion that the price advertising ban will significantly

advance the State’s interest in promoting temperance”); Rubin v. Coors

Brewing Co., 514 U.S. 476, 487 (1995) (expressly rejecting government’s

“common sense” justification for restriction on speech); Jbanez v. Florida

Dept. of Business & Professional Reg., 512 U.S. 136, 143 (1994)

(“unsupported assertions” are “insufficient” to justify restrictions on speech).

POL er eer! te oe

en a EE TS

23

absolute, categorical ban on speech traceable to an illegal

interception in order to serve what the Solicitor General

describes as a “deterrent function” — to reduce the incentive of

would-be eavesdroppers to intercept electronic communications

by “dry[ing] up the market for this material.” Brief of the United

States at 40. But the Solicitor General can point to little beyond

speculation and analogies to quite different contexts (“fencing”

of stolen property and child pornography, for example) to

support his argument. It seems equally plausible to assume that,

unlike the markets for stolen property and child pornography,

which are driven primarily by economic considerations, few if

any eavesdroppers are motivated chiefly by the prospect of

delivering information to the press. Rather, like Mr. Harman in

the Peavy case, they are motivated by other considerations and

will not alter their behavior as a result of Section 251 1(1)(c) and

Section 2511(1)(d). Tellingly, Harman began taping before he

even approached WFAA-TV, and he continued to tape even after

WFAA-TV informed him that it would not accept any additional

tapes.

The only evidence the Solicitor General is able to muster is

hopelessly out-of-date and relates to the technological state of the

art in 1968 and 1986. See Brief of the United States at 2, 3, 5,

24, 37, 44 (citing legislative materials from 1968); id. at 3-4, 5,

36, 37 (citing legislative materials from 1986). This evidence

fails to consider (to take obvious examples) advances in

encryption, public key infrastructure, digital phones, and other

technological means of protecting privacy short of a ban on

speech.’

” See, e.g., Hard of Hearing, NEWSWEEK, Dec. 13, 1999, p. 78 (“Digital

transmissions, used for most mobile phones and soon for almost all

telecommunications, are harder to intercept than the old analog signals.

Whereas analog signals are transmitted in a continuous stream, digital signals

are broken into small, hard-to-track packets. E-mail and telephone calls that

use the Internet are almost impossible to intercept. While digital packets can

be snatched in bulk, reassembling them is very difficult. The sheer volume of

24

Thus, the Solicitor General has failed to meet his burden of

justifying Section 2511(1)(c) and (d). The statute is a gratuitous

restriction on speech, penalizing expression while providing no

clear assurance that it serves any important governmental interest

— much less any assurance that the statute is a narrowly tailored

means of achieving that interest.

Far from arguing that Section 2511(1)(c) and Section

2511(1)(d) are narrow restrictions, the private petitioners contend

that the statute is written “in broad terms” whose effect is

“comprehensive[].” Brief of Bartnicki and Kane at 8. This very

breadth and comprehensiveness represents a_ particularly

significant source of constitutional concern under intermediate

scrutiny. In Edenfield v. Fane, 507 U.S. 761 (1993), for

example, this Court held that a flat ban on personal solicitations

by accountants could not survive intermediate scrutiny as a

means of preventing fraudulent solicitations. Reaffirming the

principle that “[b]road prophylactic rules in the area of free

expression are suspect,” id. at 777 (internal quotation marks

omitted), this Court required a showing that personal

solicitations were so likely to result in fraud that, without a flat

ban, a serious risk of harm would remain. /d. at 774-77.

global information makes it hard to sort out key words and phrases.

Encryption, once rare in everyday commerce and communication, has been

made commonplace by software programs that anyone . . . can get... . New

technology poses obstacles to eavesdropping that may be virtually

insuperable.”); Cordless Phones, CONSUMER REPORTS, Nov. 1998, p. 48 (“It’s

extremely difficult to eavesdrop on a digital phone”); Advisory Committee on

Online Access and Security - Comment, P004807, Comments of Entrust

Technologies, Inc. on April 19-20 Draft Report of The Advisory Committee

on Access and Security of the Federal Trade Commission (April 27, 2000)

(discussing improvements in privacy protection with technologies such as

public key encryption, digital signatures, certification, “hash” functions, and

private keys), available at, http://www.ftc.gov <http://www.ftc.gov/>.

* See also Greater New Orleans Broadcasting Council, 527 U.S. at 193

(noting “the availability of other regulatory options which could advance the

asserted interests ‘in a manner less intrusive to First Amendment rights’”);

25

V. THIS COURT SHOULD MAKE CLEAR THAT A

DEFENDANT MAY NOT BE HELD LIABLE IF IT

HAS A REASONABLE BASIS FOR BELIEVING

THAT THE INTERCEPTION WAS LAWFUL.

However this Court decides the First Amendment question

presented, it should hold that a defendant may not be held liable

under Section 2511(1)(c) or Section 2511(1)(d) if he had a

reasonable basis for believing that the interception was lawful.

The requisite intent is statutorily defined as “knowing or having

reason to know” that the information in question “was obtained

through the interception of a wire, oral, or electronic

communication in violation of this subsection.” 18 U.S.C. §

2511(1)(c), (d). Some lower courts have incorrectly interpreted

this scienter language as requiring a plaintiff to show only that

the defendant knew, or had reason to know, sufficient facts

concerning the circumstances of the interception such that the

defendant could, with presumed knowledge of the law, determine

that the interception was prohibited by Title III. These courts

have refused to consider the defense that the defendant held a

good faith view (based on advice from law enforcement

authorities, for example) that the interception was lawful. Peavy,

221 F.3d at 178.

This Court should make clear that such a construction of the

scienter requirement of Section 2511(1)(c) and Section

2511(1)(d) is incorrect. It may be permissible as an initial matter

to presume a defendant’s knowledge of the Title III legal

requirements. But the scienter requirement should be interpreted

as allowing the defendant to negate any presumption that he was

aware of the Title III prohibition by demonstrating that he

Rubin v. Coors Brewing Co., 514 U.S. at 491 (citing “the availability of

alternatives that would prove less intrusive to the First Amendment's

protections for commercial speech”); City of Cincinnati v. Discovery

Network, Inc., 507 U.S. 410, 417 & n.13 (1993) (considering possible

alternatives to restriction on speech).

26

reasonably relied on advice from law enforcement authorities,

legal counsel, or similarly authoritative sources of information.

Such evidence should properly be treated as exculpating the

defendant from liability by demonstrating that he did not know,

or have reason to know, that the interception was illegal. This

construction is more faithful to the statutory language enacted by

Congress because it gives meaning to the decision to place the

phrase “in violation of this subsection” after the verb “know{s]

or ha[s] reason to know{].”. By any common sense

understanding, a defendant who has been advised of the

lawfulness of conduct by local police, the district attorney, and

his own counsel has no “reason to know” that the conduct

violates Title III.

In the Peavy case, for example, Harman assured WFAA and

Riggs that the lawfulness of his actions had been confirmed by

the Dallas County District Attorney and the Dallas Police

Department. 37 F. Supp.2d at 503. The district court also found

that Paul Watler, WFAA’s legal counsel, advised News Director

John Miller that WFAA-TV could accept and broadcast the

tapes. This advice was confirmed in a written legal

memorandum dated January 4, 1995. Jd. As soon as WFAA and

Riggs learned that the interceptions were unlawful, they stopped

accepting tapes from Harman, returned the original tapes to him,

and transferred all copies of the tapes and related documents to

their attorney for safekeeping. /d. at 503-04. The district court

commended WFAA and Riggs for “attempt{ing] to determine

whether the interceptions were legal. Their actions were

consistent with those of a responsible journalist — to investigate

leads, verify facts, and publish newsworthy information. To

require anything more would undoubtedly result in ‘timidity and

self-censorship.”” /d. at 518.”

* Nonetheless, both the district court and the Fifth Circuit in the Peavy case

held that WFAA and Riggs could not assert a defense based on the advice they

received from the government and from their attorney. See 37 F. Supp.2d at

511 (noting that the defendants’ argument nonetheless “has some appeal”);

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27

This case presents an opportunity to articulate the contours of

scienter issue as a means of defending Title III under the First

Amendment. The Solicitor General maintains that Title III’s

saorerer deed gather stveennamed thet sane bron

protected speech precisely because “the prohibitions in Sections

2511(1)(c) and (d) are violated only when a defendant ‘know(s]

or ha[s] reason to know’ that the communication was intercepted

in violation of Title IIL” Brief of the United States at 45

(emphasis added). “That scienter requirement is demanding.”

Id. “It imposes no duty of inquiry on a person to ferret out the

provenance of the information.” /d. at 15. “[U]nless a person

actually possesses information from which he or a reasonable

person would infer that the communication was unlawfully

intercepted, liability cannot attach.” Jd at 46. A defendant

should thus be able to show his reasonable belief, on the basis of

the advice of law enforcement officials and legal counsel, as well

as other information, that the communications had not been

unlawfully intercepted.

The United States has itself urged that, to the extent any

residual concerns remain regarding the chilling effect of the

challenged provisions, “those concerns could be addressed by

procedural measures that stop short of invalidating the provisions

themselves.” Jd. One of the most obvious means of reducing the

possibility of a chilling effect would be to adopt a rule that a

defendant can demonstrate lack of the requisite scienter by

showing that he held a reasonable, good faith view based on

advice from law enforcement authorities, legal counsel, or

similar sources that his actions were not unlawful under Title III.

In addition, this Court should accept the Solicitor General’s

invitation to adopt an elevated requirement of proof of scienter

in civil cases, in the form of a standard of “clear and convincing”

evidence. /d.; see also United States v. X-Citement Video, Inc.,

221 F.3d at 178.

28

513 U.S. 64, 68-69 (1994) (rejecting “[t]he most natural

grammatical reading” of scienter provision in order to create

additional defense to avoid First Amendment issue).

Denying a defendant the ability to demonstrate a good-faith

belief in the legality of the interception would draw an arbitrary

line between the defendant’s knowledge of underlying facts

relevant to lawfulness (regarding which a defendant may put on

evidence) and the defendants’ reasonable understanding of the

legal standard established by Section 2511(1)(c) and (d)

(regarding which a defendant would not be allowed to offer

proof, under the view of such courts as the Fifth Circuit in

Peavy). Yet the statutory language draws no distinction

whatsoever between these two categories. Section 2511(1)(c)

and Section 2511(1)(d) refer to whether a defendant “know/{s] or

ha[s] reason to know that the information was obtained . . . in

violation of this subsection.” The statute does not differentiate

between knowledge of underlying facts relevant to lawfulness

and knowledge of the governing legal standard.

Moreover, it is unreasonable to deny a defendant the

opportunity to demonstrate that he reasonably believed an

interception was lawful. It would permit liability to be imposed

even if the defendant has been assured in writing by the Attorney

General herself that the interception in question is entirely lawful

under Séction 2511. To impose liability in these circumstances

raises serious constitutional questions. This Court has held that

it runs afoul of due process to punish “a citizen for exercising a

privilege which the State clearly had told him was available to

him.” Raley v. Ohio, 360 U.S. 423, 438 (1959); see also

Lambert v. California, 355 U.S. 225, 227 (1957) (Los Angeles

ordinance requiring felons to register their presence in the city

“violates due process where it is applied to a person who has no

actual knowledge of his duty to register”). This principle is

underscored by the First Amendment rights at stake. If the press

cannot rely on authoritative legal advice to confirm the

permissibility of traditional methods of newsgathering, there will

be an unacceptable risk of chill, timidity, and self-censorship.

29

Permitting a defendant to show that he reasonably believed an

interception was lawful would not amount to judicial creation of

a “mistake of law” defense. A “mistake of law” defense is a

claim that a defendant’s subjective belief in the lawfulness of his

conduct excuses a legal violation. Here, defendants’ state of

mind as to the legality of their conduct bears directly on whether

they possessed the requisite scienter under the statute. Thé issue

is a matter of statutory construction of Section 25! 1, informed by

due process and First Amendment principles. As _ the

commentary to the Model Penal Code explains, “The general

principle that ignorance or mistake of law is no excuse is usually

greatly overstated; it has no application when the circumstances

made material by the definition of the offense include a legal

element.” Model Penal Code § 2.02, comment 1 1 at p.131 (Tent.

Draft No. 4, 1955).

This Court has endorsed a similar approach in other contexts.

In Liparota v. United States, 471 U.S. 419 (1985), for example,

this Court held that a federal statute relating to food stamp fraud

(7 U.S.C. § 2024(b)) required proof that the defendant knew hit

conduct to be unauthorized by the applicable statute or

regulations. The relevant provision punished any person who

“knowingly uses, transfers, acquires, alters, or possesses coupons

or authorization cards in any manner not authorized [by statute]

or the regulations.” 471 U.S. at 420. The government argued

that the term “knowingly” modified only the “use, transfer,

acquisition, alteration, or possession” of the food stamps and that

the government was not required to prove that the defendant was

aware that such use, transfer, acquisition, alteration or possession

also violated the law. This Court rejected the government’s

argument, holding that Ҥ 2024(b)(1) requires a showing that the

defendant knew his conduct to be unauthorized by statute or

regulations.” /d. at 425.

Similarly, in Morissette v. United States, 342 U.S. 246

(1952), this Court held that it is a defense to a charge of

“knowingly converting” federal property that one did not know

that what one was doing was a conversion. This Court explained

4.

*- oe -

Stel

——_

30

that, under English common law, criminal culpability generally

arose only “from concurrence of an evil-meaning mind with an

evil-doing hand.” /d@ at 251. And in Staples v. United States,

511 U.S. 600 (1994), this Court held that, to be criminally liable

under 26 U.S.C. § 5861(d), a defendant must know that his

weapon possessed automatic firing capability so as to make it a

machinegun as defined by the National Firearms Act.

“Morissette, reinforced by Staples, instructs that the presumption

in favor of a scienter requirement should apply to each of the

statutory elements that criminalize otherwise innocent conduct.”

United States v. X-Citement Video, Inc., 513 U.S. 64, 72 (1994).

CONCLUSION

The judgment of the Court of Appeals invalidating Section

2511(1)(c) and Section 2511(1)(d), as well as their state-law

counterparts, as applied, should be affirmed. This Court should

make clear that Section 2511(1)(c) and Section 2511(1)(d)

trigger strict scrutiny (not merely intermediate scrutiny) under the

First Amendment, which they cannot survive.

Respectfully submitted.

WILLIAM D. SIMS, JR. LAURENCE H. TRIBE

THOMAS S. LEATHERBURY Counsel of Record

MARIE R. YEATES JONATHAN S. MASSEY

MICHAEL L. RAIFF 420 Hauser Hall

STACEY H. DoRE 1575 Massachusetts Ave.

VINSON & ELKINS L.L.P. Cambridge, MA 02138

2001 Ross Ave., Suite 3700 (617) 495-4621

Dallas, TX 75201

(214) 220-7700

Counsel for Amici

October 25, 2000