# Amicus Curiae Brief — Bartnicki v. Vopper > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0365%3A20 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 2001 - **Citation:** 532 U.S. 514 ## Text ~ 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 | —~ 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 . * 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”); | | | | 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 “§ 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0365%3A20. Public record. Not legal advice.