# Amicus Curiae Brief — Bartnicki v. Vopper

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0365%3A21

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2001
- **Citation:** 532 U.S. 514

## Text

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“S hens sae Court, WS.
Nos. 99-1687, 99-1728 , 9 1h ED
i
IN THE | a
Supreme Court of the Untted States |
ee a

GLORIA BARTNICKI and ANTHONY F. KANE, JR..

Petitioners.

—

FREDERICK W. VOPPER, et al.,
Respondents.

ses. >>

UNITED STATES OF AMERICA,
Petitioner.

-—vV _

FREDERICK W. VOPPER. et al..
Respondents.

ON WRITS OF CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE THIRD CIRCUIT

BRIEF AMICI CURIAE OF MEDIA ENTITIES AND
ORGANIZATIONS IN SUPPORT OF RESPONDENTS

FLOYD ABRAMS*
LANDIS C. BEST

*Counsel of Record
CAHILL GORDON & REINDEL
80 Pine Street
New York, New York 10005
(212) 701-3000

October 25, 2000 Counsel for Amici Curiae

(Additional counsel listed within brief)

BEST AVAILABLE COPY Ja

TABLE OF CONTENTS

PAGE
TABLE OF AUTHORITIES .................005. iii
STATEMENT OF INTEREST OF AMIC/
GAPUITEEE se 0recccccesenseunsanceuéeianensanten l
See Oa CONT 0 voccecteneonsccvenssstenuwentes 2
SUMMARY OF ARGUMENT ................... 6
GUNES en ceecnccscccecssciucauséetscavenvess 8
I. THE DECISION OF THE THIRD CIRCUIT
SHOULD BE AFFIRMED BASED ON
PUMPED DOME ovcccivcsecenescescdtecssusss 8
A. This Court's Jurisprudence Culminating
i PUR Bc vk kcvcdecnsdintccescasese )
B. The Wiretapping Statute at Issue Is
Not Narrowly Tailored to a State
Interest of the Highest Order........... 13
Il. THE ARGUMENTS ADVANCED FOR
SIDESTEPPING THE FLORIDA STAR
ANALYSIS ARE WITHOUT MERIT....... 20

A. The Florida Star Line of Authority
is Based Upon the Overarching
Public Interest in Protecting Truthful
ED, secnivcccewccsictcdecdapédeucadess 21

ii
B. The Tape at Issue Was Lawfully
Obtained by the Media Respondents ...
CONCLUSION 2... cccccccccccccccccccscccccccccees

APPENDIX

Description of Amici Curiae ..........0+005:

PAGE

24

30

)

TABLE OF AUTHORITIES
Cases: PAGE
Bartnicki v. Vopper, 200 F.3d 109
GES DEED Sccevscdeccocessessccoosoocesss 24n
Bates v. State Bar of Arizona, 433 U.S.
PET Uiececdscovcecsseusececcecovcsodsuns 23

Boehner v. McDermott, 191 F.3d 463
(D.C. Cir. 1999), petition for cert.
filed, 68 U.S.L.W. 3686 (U.S. Apr.
25, 2000) (No. 99-1709)............ 18, 27, 27n, 28

Butterworth v. Smith, 494 U.S. 624 (1990) ..... 20n, 23

Central Hudson Gas & Electric Corp. v. Public
Service Comm'n of New York, 447 U.S. 557

DE deneddseeesnecoussooesoecenceoseesesses 22-23
City of Ladue v. Gilleo, 512 U.S. 43 (1994)..... 24n
Cox Broadcasting Corp. v. Cohn,

GP Ss SE CEO TED cccccceccccceces 7, 9-10, 11, 14
The Florida Star v. B.J.F., 491 U.S. 524

DE cb ecenddcedadencecdeccccesscecoeccoosess passim
Garrison v. Louisiana, 379 U.S. 64 (1964)...... 10
Ge ve Gault, SE7 U.S. 1 (1967) ..ccccccccccscccecs 15n
Houchins v. KQED, Inc., 438 U.S. 1 (1978)..... 29

Keller v. Aymond, 722 So.2d 1224 (La. Ct. App.
1998), writ denied, 742 So.2d 551, 552
(La. 1999), cert. denied sub nom. Central
Newspapers, Inc. v. Johnson, 120 S.Ct. 397
SUED cetddcconccsdcccoccececonesccccccoecees 3, 3n

iv
PAGE

Landmark Communications, Inc. v. Virginia,
43S UB. TSS (IG TE De ccccccccescccccesceseess passim

Miller v. Transamerican Press, Inc., 621 F.2d
721, amended by, 628 F.2d 932 (Sth Cir.
1980), cert. denied, 450 U.S. 1041 (1981)... 17n

Mills v. Alabama, 384 U.S. 214 (1966)......... 24n, 28
New York Times Co. v. Sullivan, 376 U.S. 254
SEED scondcdcdesseadianseeendeadsamianias 22

New York Times Co. v. United States,
Ge Se, FE Eee ED cédccescesuce 4, 4n, 23, 26n, 28

Nicholson v. McClatchy Newspapers, 177 Cal.
App. 3d 509, 223 Cal. Rptr. 58 (Cal. Ct.

ABD. IGGB). ccccccccccccccccccccccccccccccsees 3n-4n
Oklahoma Publishing Co. v. District Court,

SSD UB. FSS (IGT ID ccccccccccccccccsecccess 11, lin
Pearson v. Dodd, 410 F.2d 701 (D.C. Cir.), cert.

denied, 395 U.S. 947 (1969) ............045. 4, 4n
Philadelphia Newspapers, Inc. v. Hepps,

GTS Ge FOU CRO vccccccccccocescoceseses 22
Schneider v. State, 308 U.S. 147 (1939)......... 27
Smith v. Daily Mail Publishing Co..,

GBD UB Be FF CIGTSD cccccccccccccccecccccccces passim
Time, Inc. v. Hill, 385 U.S. 374 (1967) .......... 22

Constitutional Provisions:

UB. Comet. SURGE. B. cccccccccccccccccccscccccces passim

PAGE

Law Reviews:

Harry Kalven, Jr., Privacy in Tort Law—
Were Warren and Brandeis Wrong?,
31 Law & Contemp. Probs. 326 (1966) ..... 30n

Rodney A. Smolla, Privacy and the First
Amendment Right to Gather News, 67
Geo. Wash. L. Rev. 1097 (1999) ............ 24

Samuel D. Warren & Louis D. Brandeis,
The Right to Privacy, 4 Harv. L. Rev.
TRIE Ee Sena ane ee a aD 30n

Diane Zimmerman, Requiem For a Heavy-
weight: A Farewell To Warren and
Brandeis’s Privacy Tort, 68 Cornell
Bis SE Pe ee ncnubredstascqeseediesesecésss 2In

Newspaper Articles:

Phillip J. Hilts, Tobacco Company Was Silent
on Hazards, N.Y. Times, May 7, 1994,
BRED ccncdccececcasscocvesenbescuscscesescees 4-5, 5n

Nicholas Lemann, Keeping the Secret:
Many Reporters Were Silent on Escapees’
Whereabouts, Wash. Post, Jan. 31, 1980,
WD Ges wnnccccneccdcccssensesseooncésosaceccess 5n

James Risen, The C./.A. in lran—A Special
Report: How a Plot Convulsed Iran in '53
(and in '79), N.Y. Times, Apr. 16, 2000,
BE ERE ccbccvedendccccotecdacetccesotasecesusses 4, 4n

vi
PAGE

Sup. Ct. R.
I rceckeonadsceeseedenbseesenesessassaneceet In
De ncécecdndecensccsesectecedeusesebadceutcuss In

Senate Report:
S. Rep. No. 90-1097 (1968), reprinted
in 1968 U.S.C.C.A.N. 2112........ 15-16, 16n-17n

Statutes:
Federal

Criminal Code
18 U.S.C. § 2511(1)(c) (1994), as amended... 13n, 25
18 U.S.C. § 2511(1)(d) (1994), as amended... 13n, 25

18 U.S.C. § 2512 (1994), as amended....... 16
Sedition Act of 1798, 1 Stat. 596................ 22
State
Ala. Code § 13A-11-35 (2000)............600005- 20n
Alaska Stat.
§ 42.20.310(a)(2) (Michie 1999)............ 20n
§ 42.20.330 (Michie 1999) ..............54 20n
Ariz. Rev. Stat. Ann. § 13-3005 (West 1999).... 20n
Ark. Code Ann. § 5-60-120 (1999) .............. 20n

Colo. Rev. Stat. Ann. § 18-9-303 (West 2000)... 20n

Conn. Gen. Stat.
§ $2-STOG (1DDD) 2. cccccccccccccccccccccececs 20n
§ 53a-189 (1999) 2.0... ccc cece c cece eee eeeeeee 20n

vii

Ga. Code Ann. § 16-11-62 (2000)...............

720 Ill. Comp. Stat. Ann.

te OE ctnceredécctddcaksaenies
5/14-6(b) (West 2000)................0 cnn,

Kan. Stat. Ann. § 21-4002 (1999)...............

Ky. Rev. Stat. Ann. § 526.060

(Banks-Baldwin 1998) ..................4..
Mich. Comp. Laws § 750.539h(b) (2000).......
Mont. Code Ann. § 45-8-213 (1999)............
N.Y. Penal Law § 250.05 (McKinney 1999) ....
N.D. Cent. Code § 12.1-15-02 (1999) ..........
Okla. Stat. Ann. tit. 13, § 176.3 (West 1999)..
Or. Rev. Stat. § 165.540 (1999) .................
R.I. Gen. Laws § 11-35-21 (1999) ..............

S.D. Codified Laws § 23A-35A-20

GRENEED GED ocscccsccesevcceccccccesecesss

Wash. Rev. Code Ann.

BFPO e CONS BOOP cc ccccccccccccccccces
BD. FSG (WOR BGS). oc ccccccccccsccceces
§ 9.73.080 (West 1999)........ccccseccccess

Treatises and Books:

Alexander M. Bickel, The Morality of

EE TENE eee ere em

Jay Black, et al., Doing Ethics in

i a a nce ce eeanns

viii
PAGE
David S. Broder, Behind the Front Page (1987). 2n
David Burnham, Above the Law (1996).......... 4, 4n
Jack Fuller, News Values (1996) ...........000005 2, 2n

4 Ronald D. Rotunda & John E. Nowak,
Treatise on Constitutional Law
TDR OR. GEPED cocccvccecevsceocncesscocesacses 23

Tom Wicker, On Press (1978).........000 cece cues 5n

Other Authorities:

Appendix, Landmark Communications,
Inc. v. Virginia, 435 U.S. 829 (1978)
(NO. 76-1450)... .. ccc cece eee eens 3n, 11, Lin, 28

Associated Press Managing Editors Code of
Ethics (revised and adopted, 1995) ......... 2, 2n

Brief for Amici Curiae, Smith v. Daily Mail
Publishing Co., 443 U.S. 97 (1979)
tS, - >) SP Perrrrrrrrrrrrrrr rrr rr ire 15n

Brief for Appellant, Smith v. Daily Mail
Publishing Co., 443 U.S. 97 (1979)

te 2) eeerrrrerrrrrrrrr rrr rte 15n
The Business Week Editorial Handbook ......... 2, 2n
Restatement (Second) of Torts § 652D (1977)... 19
Society of Professional Journalists Code of

Ethics (revised and adopted, 1996) ......... 2, 2n
Time Inc. Editorial Guidelines............000+4: 2, 2n

STATEMENT OF INTEREST OF AMICI CURIAE

Amici and their members are involved in the gathering
and reperting of news to the American public.' The
media entities and organizations that submit this brief
include the publishers of newspapers, including The New
York Times, The San Diego Union-Tribune, USA Today,
the Houston Chronicle, the Miami Herald, the Denver
Rocky Mountain News, the Chicago Tribune, and the
Washington Post; magazines, including The New Yorker,
Business Week, and Time; national broadcast news net-
works, including ABC, Inc., CBS Broadcasting Inc.,
National Broadcasting Company, Inc., and Cable News
Network; the Associated Press; and associations that
defend First Amendment rights, including the Magazine
Publishers of America, Inc., the Newspaper Association
of America, the Pennsylvania Newspaper Association,
the Radio-Television News Directors Association, the
Reporters Committee for Freedom of the Press, and the
Society of Professional Journalists. A more detailed
statement of the amici is annexed to this brief.

Amici are vitally interested in and deeply concerned
about any ruling that could result in the imposition of
sanctions against journalists for reporting truthful mat-
ters of public significance about which they become
aware as a result of entirely lawful and wholly routine
newsgathering efforts. This case raises that spectre
and amici submit this brief to set forth their views as to
why the judgment of the Court of Appeals for the Third
Circuit should be affirmed.

' No counsel for any party in this case authored this brief in

whole or in part, and no person or entity other than amici curiae and
its members made any monetary contribution to the preparation or
submission of this brief. Sup. Ct. R. 37.6. The parties have consented
to the filing of this brief; letters of consent have been filed with the
Clerk of this Court. Sup. Ct. R. 37.3.

2

INTRODUCTION

From the time individuals first consider becoming
journalists, two principles are drilled into them. Both are
at risk in this case.

The first is that telling the truth about matters of
public interest is what journalism, at its best, is all
about. Journalists who consult codes of ethics written
about their chosen field read the repeated exhortation
that their role is to “seek truth and report it”* and that
“truth is [their] guiding principle.”* Journalists employed
at newspapers, magazines and broadcasters are instructed
that “the most important” quality of any story “is accu-
racy,” that “above all,” a publication “must be factually
accurate,”’ and that “(t]he principle[ ] of accuracy” stands
“at the very heart of journalism.”° Journalists who read
the writings of the most thoughtful and accomplished
leaders of their community learn that while news is “at
most a provisional kind of truth, the best that can be said
quickly,” the judgment journalists make about what is
true “stands near the very center of the press’s social
purpose in a self-governing society.”’ It should come as
no surprise, then, that journalists who read opinions of
this Court find unsurprising this Court’s repeated ref-
erences to “the overarching public interest, secured

2 Society of Professional Journalists Code of Ethics \ (revised
and adopted, 1996).

3 Associated Press Managing Editors Code of Ethics \ (revised
and adopted, 1995).

‘ Time Inc. Editorial Guidelines 11.
3 The Business Week Editorial Handbook 5.
® Jay Black, et al., Doing Ethics in Journalism 43 (1993).

7 Jack Fuller, News Values 5 (1996); see also David S. Broder,
Behind the Front Page 19 (1987) (“[t}he way we cover news is to dig
for facts, in hopes that they will yield an approximation of truth”).

—

3

by the Constitution, in the dissemination of truth.” The
Florida Star v. B.J.F., 491 U.S. 524, 533 (1989) (citation
and internal quotation omitted). That public interest is
directly imperiled in this case.

So is the journalistic norm that in the course of gath-
ering news, journalists should affirmatively seek the
truth from those who have it—including people who may
themselves be subject to constraints limiting their abil-
ity to speak. This applies to the gathering of news both
about government and about the private sector. To offer
only a few examples:

¢ When journalists who attended a press confer-
ence called by a candidate who had lost a judicial
election at which the losing candidate played
allegedly incriminating tapes of telephone con-
versations of the victorious candidate, they pub-
lished the information, notwithstanding that
anyone who engaged in wiretapping was plainly
guilty of a federal and state crime;*

¢ When the Virginian Pilot learned from various
participants in a confidential judicial disciplinary
proceeding, that charges of incompetence against
a juvenile court judge were under consideration,
the newspaper published an article identifying
the judge notwithstanding that the sources (and
the newspaper itself) were subject to criminal
sanctions for revealing the information;’

8 See Keller v. Aymond, 722 So.2d 1224 (La. Ct. App. 1998),

writ denied, 742 So.2d 551, 552 (La. 1999), cert. denied sub nom.
Central Newspapers, Inc. v. Johnson, 120 S. Ct. 397 (1999).

% Landmark Communications, Inc. vy. Virginia, 435 U.S. 829

(1978). See Appendix at 46a, Landmark Communications, supra (No.
76-1450) (“Landmark Communications Appendix”) (containing arti-
cle referring to sources). See also Nicholson v. McClatchy News-
papers, 177 Cal. App. 3d 509, 223 Cal. Rptr. 58 (Cal. Ct. App. 1986)

4

¢ When a journalist was provided with information
relating to potentially corrupt conduct of a
United States senator based upon documents
illicitly (and probably illegally) obtained by one
of the senator's aides from the senator’s files, the
information was duly published;'°

¢ When highly classified documents were made
available to journalists that revealed information
about such subjects as how the United States
became embroiled in the Vietnamese conflict,"'
how the FBI’s Surreptitious Entry Program
routinely breaks into houses, offices, and
warehouses,'*? and how the United States had
masterminded a 1953 coup d’etat in Iran,'’ the
information was published notwithstanding that
the sources were not authorized to reveal the
information and could have been subject to crim-
inal or civil sanctions for doing so; and

¢ When the New York Times was provided with
secret, internal documents of a cigarette company
revealing its knowledge of significant health
risks of that product far earlier than had previ-
ously been publicly disclosed, the newspaper
published an article based on the documents

(sustaining demurrer to suit against newspaper and reporters for pub-
lishing article about confidential fact that Commission on Judicial
Nominees Evaluation had found plaintiff not qualified for judicial
appointment).

10 Pearson v. Dodd, 410 F.2d 701 (D.C. Cir.), cert. denied, 395
U.S. 947 (1969).

1! New York Times Co. v. United States, 403 U.S. 713 (1971).
12 David Burnham, Above the Law 130-34 & n. 1 (1996).

13 James Risen, The C.1.A. in Iran—A Special Report: How a
Plot Convulsed Iran in '53 (and in '79), N.Y. Times, Apr. 16, 2000,
at Al.

5

notwithstanding the claims of the company that
the documents had been stolen by a paralegal and
were subject to a judicial protective order that
bound at least the paralegal.'*

We wish to be clear: As this Court is well aware, jour-
nalists do not publish every scrap of truthful information
they receive, even if the information is newsworthy.'*
But they do proceed on the understanding that they are
entitled to seek information from those that have it and
that they may print or broadcast the truthful and news-
worthy information that they lawfully gather.

For journalists, then, the notion that liability may be
imposed upon them for doing nothing more or less than
reporting truthfully about newsworthy events is deeply
disturbing. While not all journalists are aware of the
judicial provenance of Justice Stewart’s observation that
“[t}hough government may deny access to information
and punish its theft, government may not prohibit or
punish the publication of that information once it falls
into the hands of the press. . . ,”'® they are well aware

‘4 Phillip J. Hilts, Tobacco Company Was Silent on Hazards,

N.Y. Times, May 7, 1994, at Al.

'S To cite only two examples, no journalistic organization pub-

lished the fact (which was well known in the journalistic community )
that during the lengthy period in which Iranian “students” held many
Americans hostage after the revolution in that country in 1979, some
Americans were being protected in the Canadian embassy in Teheran.
Nicholas Lemann, Keeping the Secret: Many Reporters Were Silent On
Escapees’ Whereabouts, Wash. Post, Jan. 31, 1980, at Al. Similarly,
newspapers and broadcasters, at the request of the CIA, refrained
from publishing truthful information in their possession about ongo-
ing efforts of the United States to recover Soviet hydrogen-warhead
missiles and code books from a sunken Russian submarine. See Tom
Wicker, On Press, 213-23 (1978).

16 Landmark Communications, 435 U.S. at 849 (Stewart, J.,

concurring).

6

of the applicability of that principle to their professional
lives. Yet that concept too is at risk in this case.

Here, two union leaders (one the union’s president, the
other its chief negotiator), engaged in a telephone call in
which the union’s president told his colleague that unless
a sufficient pay increase was offered by city officials,
“we're gonna have to go to their, their homes. . . to
blow off their front porches, we'll have to do some work
on some of those guys. . . .” Joint Appendix at 46.

There can be no doubt that a broadcast accurately
reporting that threat is highly newsworthy. Indeed, there
can be no doubt that if someone who was concealed
(inadvertently or purposefully) near the union’s presi-
dent had heard him make that threat and had advised a
journalist of what he had heard, that no liability could
possibly be imposed on the journalist for accurately
publishing the threat. Here, however, radio stations and
a journalist have been sued for doing no more than
broadcasting a tape of the conversation that all agree
was made by an unknown third person who made it
available to an opponent of the teachers’ union who, in
turn, made it available to the stations.

The central issue presented by this case is thus
straightforward. It is whether journalists and their orga-
nizations may be sanctioned for doing nothing more thar
accurately recounting wiretapped conversations made
available to them, which they had no direct or indirect
role in obtaining. We believe that they may not and that
the decision of the Third Circuit should be affirmed.

SUMMARY OF ARGUMENT

This brief maintains that the decision below should be
affirmed based upon the analysis set forth by this Court
in the line of cases culminating in The Florida Star v.

7

B.J.F., 491 U.S. 524 (1989). The rule of the Florida Star
line of precedent is that “where a newspaper publishes
truthful information which it has lawfully obtained, pun-
ishment may lawfully be imposed, if at all, only when

_ narrowly tailored to a State interest of the highest order

” Id. at 541; see also Smith v. Daily Mail Pub-
lishing Co., 443 U.S. 97 (1979); Landmark Communi-
cations, Inc. v. Virginia, 435 U.S. 829 (1978); Cox
Broadcasting Corp. v. Cohn, 420 U.S. 469 (1975). (Point
I.A., infra.)

In this case, the conduct of the media respondents falls
well within the zone of the First Amendment protection
articulated in Florida Star. The wiretapping statute at
issue violates the First Amendment since it is not nar-
rowly tailored to a state interest of the highest order. The
interests asserted in defense of the wiretapping statute—
primarily that of protecting the privacy of telephone
conversations—are plainly significant but are no more
compelling than the interests at issue in Cox Broad-
casting (privacy of the identity of rape victims); Florida
Star (same); Landmark Communications (reputational
interests of judges and judicial integrity); and Daily Mail
(anonymity of juvenile offenders for purposes such as
rehabilitation). Moreover, the legislative history does not
support the proposition that Congress viewed publication
or disclosure of wiretapped materials by unrelated third
parties as central to the purpose of outlawing wiretaps.
The broad ban on any dissemination by anyone coming
into possession of the materials regardless of the cir-
cumstances establishes a per se rule of liability that can-
not coexist with the First Amendment. Finally, the
legislative landscape is far from uniform in the states:
twenty-one states do not provide any civil remedy
against third parties who disseminate wiretapped com-
munications. (Point I.B., infra.) If there is any case in
which liability could constitutionally be imposed on the

8

press for truthfully reporting newsworthy information
that it lawfully obtained, it is not this one.

Petitioners’ argument that the Florida Star line of
cases is rooted in this Court’s concern over content-
based statutes misses the mark. Nothing in this line of
authority even discusses such a concern. Instead, the
Florida Star line of precedent is based upon “the over-
arching public interest, secured by the Constitution, in
the dissemination of truth.” Florida Star, 491 U.S. at
533-34. (Point II.A., infra.)

Finally, we demonstrate that Petitioners likewise fail
in their effort to establish that the information at issue
here was “unlawfully obtained” by the media respon-
dents. There is no issue here of the media respondents
acting in concert with the original source. Nor does the
statute at issue make unlawful the receipt of wiretapped
information. See Florida Star, 491 U.S. at 536 (noting
likewise that Florida had not taken the step of pro-
scribing the receipt of information). Moreover, sanc-
tioning the press for publishing information that may
ultimately have been unlawfully obtained by a source
unconnected to the press would violate the First Amend-
ment. (Point II.B., infra.)

ARGUMENT

I. THE DECISION OF THE THIRD CIRCUIT
SHOULD BE AFFIRMED BASED ON FLORIDA
STAR

We start with the ruling in Florida Star itself. In that
case, this Court considered the constitutionality of a
Florida statute making it unlawful to “ ‘print, publish or
broadcast. . . in any instrument of mass communica-
tion’ ” the name of a rape victim. Florida Star, 491 U.S.
at 526. The case presented a painful conflict between the

9

First Amendment and the privacy interests asserted by
the rape victim. Those interests were substantial. They
included not only the privacy of victims of sexual
offenses but the physical safety of such victims and the
goal of encouraging victims to report such crimes with-
out fear of exposure (id. at 537). Nonetheless, after
reviewing relevant precedent, this Court held as follows:

“[W]here a newspaper publishes truthful informa-
tion which it has lawfully obtained, punishment may
lawfully be imposed, if at all, only when narrowly
tailored to a state interest of the highest order... .”

Id. at 541. The Court then ruled that even the weighty
interests urged by the State in that case failed to meet
this demanding standard. /d. As set forth below, the
determination in Florida Star should lead this Court to
rule similarly.

A. This Court’s Jurisprudence Culminating in
Florida Star

A trilogy of cases led to Florida Star. In each, a dif-
ferent state interest of substance was asserted as a basis
for making truthful speech illegal. In each, the statute at
issue was held unconstitutional. The first of the three was
Cox Broadcasting Corp. v. Cohn, 420 U.S. 469 (1975). In
that case, this Court considered the constitutionality of a
Georgia statute that made it a misdemeanor to publish or
broadcast the name of a rape victim. A reporter covering
the underlying rape/murder trial had learned the name of
the victim through examining the indictments that were
part of the public record, and included the victim’s name
in a news report that was broadcast. /d. at 473-74. This
Court noted the “powerful arguments” that could be made
to protect the privacy of individuals and the “strong tide
running in favor of the so-called right of privacy.” /d. at
487-88. Nonetheless, in the “face-off” between the devel-

10

oping concept of privacy and “the constitutional free-
doms of speech and the press” (id. at 489) rooted in the
Constitution's protection of the “dissemination of truth,”
(id. at 491, quoting Garrison v. Louisiana, 379 U.S. 64,
73 (1964)), the Court resolved the conflict in favor of the
First Amendment. Without reaching the ultimate issue of
whether privacy interests could ever trump the right of
the press accurately to report on matters of public con-
cern, the Court held the statute unconstitutional on the
ground that “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.” 420 U.S. at 496.

In Landmark Communications, Inc. v. Virginia, supra,
the Court again considered a clash between an asserted
need for confidentiality and the First Amendment. At
issue was Virginia’s statutory scheme regarding judicial
disciplinary procedures, which were deemed confiden-
tial by law until a formal complaint was filed. Virginia
provided that “divulging” or “publishing” confidential
information from the Judicial Inquiry and Review Com-
mission by anyone, including third parties not them-
selves involved in the proceedings, was a criminal
violation. 435 U.S. at 836. The rationale asserted for
confidentiality was three-fold: to encourage the filing of
complaints; to protect judges from the injury that might
result from the publication of unwarranted complaints;
and to protect judicial integrity. /d. at 835.

The Virginian Pilot, a Norfolk newspaper, published a
truthful article about a pending confidential inquiry by
the Commission into charges of incompetence made
against a juvenile court judge. The article accurately
named the judge under investigation and published a
photograph of him. The material in the article about the
confidential proceeding was based upon information pro-

ll

vided it by unidentified sources who were themselves
barred from revealing what they knew—including one
that the article described as “a lawyer subpoenaed to
appear at the hearing.”'’ The newspaper was found
guilty of violating Virginia law. /d. at 832. In striking
down the statute, this Court concluded that: “[T]he pub-
lication that Virginia seeks to punish under its statute
lies near the core of the First Amendment, and the Com-
monwealth’s interests advanced by the imposition of
criminal sanctions are insufficient to justify the actual
and potential encroachments on freedom of speech and
of the press which follow therefrom.” Jd. at 838.

A year later, in Smith v. Daily Mail Publishing Co.,
supra, the Court addressed the constitutionality of a
West Virginia statute that made it a crime for a news-
paper to publish the name of a youth charged as a juve-
nile offender without the approval of the juvenile court.
There, reporters for two papers, through interviewing
witnesses, the police, and attorneys, learned the name of
a youth charged with murder at a school and their news-
papers published the youth’s name. At the outset of its
analysis, this Court noted that “[o]ur recent decisions
demonstrate that state action to punish the publication of
truthful information seldom can satisfy constitutional
standards.” 443 U.S. at 102. The Court then examined its
decisions in Cox Broadcasting, Landmark Communica-
tions, and Oklahoma Publishing Co. v. District Court,
430 U.S. 308 (1977),'*® and concluded that these cases:

7 Landmark Communications Appendix at 46a.

'8 In Oklahoma Publishing, this Court struck down a state court
injunction prohibiting the news media from publishing the name or
photograph of a young boy being tried in juvenile court. 430 U.S. at
311-12. The juvenile court had permitted reporters into the hearing
where they learned the information, despite a state statute closing
such trials to the public. /d. at 309.

12

“suggest strongly that if a newspaper lawfully
obtains truthful information about a matter of pub-
lic significance then state officials may not consti-
tutionally punish publication of the information,
absent a need to further a state interest of the high-
est order.”

Daily Mail, 443 U.S. at 103. The Court held that the
state's interest in protecting the anonymity of youthful
offenders—an interest that was not only of an immedi-
ate reputational nature but that related to the ability of
the child to rejoin society after the imposition of any
sanction imposed by the juvenile court—was not of suf-
ficient magnitude when weighed against the First
Amendment. /d. at 104.

In Florida Star, this Court again reviewed the con-
stitutional principles set forth above within the context
of a conflict between privacy and the First Amendment.
In Florida Star, a newspaper reporter learned the name
of a rape victim from a police report that was left by
error in the police department’s press room. The news-
paper published a news account of the rape in its “Police
Reports” section, including the name of the victim. A
Florida statute at the time made it unlawful to “print,
publish, or broadcast . . . in any instrument of mass
communication” the name of the victim of a sexual
assault. In a lawsuit brought by the victim, damages
were awarded against the newspaper for negligently vio-
lating this provision. 491 U.S. at 528-29.

In holding that the Florida statute could not be applied
consistent with the Constitution, this Court again artic-
ulated the First Amendment principle set forth in Daily
Mail and its synthesis of prior case law: “ ‘[I]f a news-
paper lawfully obtains truthful information about a mat-
ter of public significance then state officials may not
constitutionally punish the publication of the informa-

13

tion, absent a need to further a state interest of the high-
est order.’ ” Florida Star, 491 U.S. at 533 (quoting Daily
Mail, 443 U.S. at 103). The Court found that interests
said to be served by the Florida statute—the protection
of the privacy of victims, the protection of the physical
safety of victims, and the encouragement of victims to
report such crimes (491 U.S. at 537)—were insufficient
in the context of the case to constitute a state interest of
such magnitude so as to trump the First Amendment. /d.
at 537-41.

B. The Wiretapping Statute at Issue Is Not
Narrowly Tailored to a State Interest of the
Highest Order

Considering Florida Star together with the trilogy of
cases that predated and led to it, it is apparent that the
government cannot demonstrate that the imposition of
civil and criminal sanctions in the wiretapping statute for
any “use” or “disclosure” of any wiretapped information
can pass constitutional muster.'®

For one thing, the interests held insufficient to be
characterized as state interest “of the highest order” in
the cases we have just summarized are hardly less sub-
stantial than those asserted here. Consider the substan-
tiality of the three interests asserted in Florida Star
itself: the privacy of victims, the physical safety of vic-
tims, and the desire to encourage victims to report such
crimes. This Court acknowledged their import while
nonetheless concluding that “imposing liability for pub-
lication under the circumstances of this case” was “too
precipitous a means of advancing these interests to con-

19 See 18 U.S.C. § 2511(1)(c)-(d) (1994). The Pennsylvania
Statute at issue is similar in all material aspects to the federal provi-
sions; thus it will not be separately addressed.

14

vince us that there is a ‘need’ within the meaning of
. . Daily Mail. . . .” 491 U.S. at 537.”

Likewise, in Cox Broadcasting, the statutory and com-
mon-law provisions were strongly defended based upon
the importance of protecting privacy interests. This
Court noted that the privacy interests asserted “are not
without force, for powerful arguments can be made. . .
that however it may be ultimately defined, there is a
zone of privacy surrounding every individual, a zone
within which the State may protect him from intrusion
by the press, with all its attendant publicity.” 420 U.S. at
487. Despite this interest and “a strong tide running in
favor of the so-called right of privacy” (id. at 488), this
Court sustained the First Amendment right to publish
information located in official court records, even if sen-
sitive, embarrassing, or otherwise protected from dis-
closure by state law. /d. at 496.

In Daily Mail, the Court considered the privacy-
related interest of protecting the anonymity of the juve-
nile offender, as well as the related interest in
rehabilitation of the youth. 443 U.S. at 104. While the
Court did not question the preservation of anonymity as
a matter of policy, it nevertheless held that “(t]he mag-
nitude of the State’s interest in this statute is not suffi-

20 The Court in Florida Star provided as a related supportive

citation the ruling in Landmark Communications, which it described
parenthetically as “invalidating penalty on publication despite State's
expressed interest in nondissemination, reflected in statute prohibiting
unauthorized divulging of names of judges under investigation.” 491
U.S. at 537-38. It is noteworthy that in Landmark Communications
itself, Justice Stewart concluded that “[t}here could hardly be a higher
governmental interest than a State's interest in the quality of its judi-
ciary.” 435 U.S. at 848 (Stewart, J., concurring). Justice Stewart then
concluded that notwithstanding the significance of that State interest,
the statute still could not be sustained.

15

cient to justify application of a criminal penalty to
respondents.” /d.”!

Here too, we urge the Court to hold that the privacy
interests asserted by Petitioners are not “narrowly tai-
lored to a state interest of the highest order... .”
Florida Star, 491 U.S. at 541. Not only are the interests
asserted here no more powerful than those asserted in
Florida Star and its companion cases—why, after all, is
the right of a rape victim not to have her name disclosed
less significant than that of a union official not to have
a telephone call disclosed in which he threatened to
engage in criminal conduct?—but for each of the fol-
lowing reasons, this is not the “extraordinary situation,
if any” in which the First Amendment should be deemed
to permit punishment of the publication of truthful infor-
mation.

First, the legislative history of the wiretapping law
leaves considerable doubt that Congress viewed the need
to bar publication of wiretapped materials by third
parties who did not themselves engage in the wiretap-
ping as at all central to the achievement of the purpose
of barring wiretaps themselves. Not a word of legislative
history appears even to refer to the ban on disclosure of
wiretapped data by third parties—media or otherwise.
Not a word of that history asserts that to effectuate the

21 ‘The State interest was not insubstantial. West Virginia not

only relied upon cases such as /n re Gault, 387 U.S. 1, 24 (1967),
which had stated that it was “the law's policy ‘to hide youthful errors
from the full gaze of the public and bury them in the graveyard of the
forgotten past,’ Brief for Appellant at 12, Smith v. Daily Mail Pub-
lishing Co., supra (No. 78-482), but an amicus brief of the Juvenile
Defender Attorney Program argued that a ruling holding the State
statute unconstitutional “would be a substantial set-back of the efforts
of the State to foster rehabilitation of juvenile delinquents and to pre-
vent future delinquency of countless thousands of children accused of
acts of delinquency. . . .” Brief for Amici Curiae at 4.

16

purposes of barring wiretapping, it is necessary to ban
publication by third parties of wiretapping materials. Not
one example is cited in the legislative history of publi-
cation by a third party of wiretapped material that could
be said to have caused the wiretapping in the first place.
And there is no talk at all in the legislative history—as
there is in the briefs of all the parties seeking to sustain
the statute’*—that a ban on publication is needed to pre-
vent those who wiretap from “laundering” their criminal
activities or to dry up the market for such communica-
tions.

The United States relies on a single page from the
Senate Report to bolster its position.”* But the entire
paragraph from which the government’s quotation is
extracted makes plain that the Senate’s expressed desire
to deal with “all aspects of the problem” referred not to
the use of unlawfully intercepted material but the
statute’s ban on the manufacture, distribution, possession
and advertising of interception devices. See 18 U.S.C.
§ 2512.** Here, then, as was true in Landmark Commu-

22 Private Petrs.” Br. at 37, 45; United States’ Br. at 37-38.
23

The United States’ reference to the Senate Report was as fol-
lows:

“In framing Title III, Congress concluded that merely pro-
hibiting interceptions would not be sufficient. It observed that
‘[o]nly by striking at all aspects of the problem’ could ‘privacy
be adequately protected.’ ”

United States’ Br. at 5 (quoting S. Rep. No. 90-1097 (1968). reprinted
in 1968 U.S.C.C.A.N. 2112, 2156) (emphasis added).

24‘ The paragraph in its entirety, reads as follows:

“Prohibition. Virtually all concede that the use of wiretapping
or electronic surveillance techniques by private unauthorized
hands has little justification where communications are inter-
cepted without the consent of one of the participants. No on:
quarrels with the proposition that the unauthorized use of these
techniques by law enforcement agents should be prohibited. It
is not enough, however, just to prohibit the unjustifiable inter-

17

nications, the government “has offered little more than
assertion and conjecture to support its claim that without
criminal sanctions the objectives of the statutory scheme
would be seriously undermined.” 435 U.S. at 841.

Second, the privacy interest said to justify the flat ban
on anyone disseminating anything that anyone else said
in an intercepted telephone conversation is fatally over-
broad. The federal statute applies across the board to all
who use the telephone, regardless of what they say or the
circumstances in which they say it. It does not matter if
the speakers are private or public figures.* It does not
matter if what they are saying relates to matters of
public concern or not. In this very case, it would not
matter—and a jury would not even be permitted to con-
sider—that threats of violent conduct were made. Nor is
it relevant whether what has been said has previously
been disclosed or whether the particular disclosure is
one that a reasonable person would find highly offen-

ception, disclosure, or use of any wire or oral communications.
An attack must also be made on the possession, distribution,
manufacture, and advertising of interception devices. All too
often the invasion of privacy itself will go unknown. Only by
striking at all aspects of the problem can privacy be ade« «ately
protected. The prohibition, too, must be enforced with all appro-
priate sanctions. Criminal penalties have their part to play. But
other remedies must be afforded the victim of an unlawful inva-
sion of privacy. Provision must be made for civil recourse for
damages. The perpetrator must be denied the fruits of his unlaw-
ful actions in civil and criminal proceedings. Each of these
objectives is sought by the proposed legislation.”

S. Rep. No. 90-1097 (1968), reprinted in 1968 U.S.C.C.A.N. 2112
2156 (emphasis added).

*S Im the instant case, the two union leaders would likely be

deemed public figures. See Miller v. Transamerican Press, Inc., 621
F.2d 721, amended by 628 F.2d 932 (Sth Cir. 1980) (union leaders
held public figures), cert, denied, 450 U.S. 1041 (1981). Compare
Florida Star, 491 U.S. at 550-51 (dissenting opinion of White, J.
referring to rights of “wholly private persons”).

18

sive. Just such overbreadth concerns led Judge Sentelle
to conclude that the federal wiretapping statute violated
the First Amendment under Florida Star in a companion
case to this one. As stated by Judge Sentelle:

“I can envision felonious eavesdroppers .. .
obtaining . . . information of critical public impor-
tance about, for example, some public official’s
accepting a bribe or committing perjury or obstruc-
tion of justice. Even if those hypothetical felons
dumped information of that critical nature. . . into
the hands. . . of a newspaper publisher or a tele-
vision news network, the public could never know
of the wrongdoing, because under today’s ruling,
those news media would be barred from further pub-
lication of that information.”

Boehner v. McDermott, 191 F. 3d 463, 484 (D.C. Cir.
1999) (Sentelle, J. dissenting), petition for cert. filed, 68
U.S.L.W. 3686 (U.S. Apr. 25, 2000) (No. 99-1709). The
statute imposes strict liability on any publication so long
as the publisher knows or has reason to know that the
material stems from a wiretap. In doing so, the statute
runs afoul of Florida Star itself, which made plain that
in the effort to justify the “extraordinary measure of
punishing truthful publication in the name of privacy”
(491 U.S. at 540), “punishment may lawfully be
imposed, if at all, only when narrowly tailored to a state
interest of the highest order. . .” Jd. at 541 (emphasis
added).

More specifically, the Court in Florida Star observed
that:

“A second problem with Florida’s imposition of lia-
bility for publication is the broad sweep of the neg-
ligence per se standard applied under the civil cause
of action implied from § 794.03. Unlike claims
based on the common law tort of invasion of pri-

19

vacy, see Restatement (Second) of Torts §652D
(1977), civil actions based on § 794.03 require no
case-by-case findings that the disclosure of a fact
about a person’s private life was one that a reason-
able person would find highly offensive. On the
contrary, under the per se theory of negligence
adopted by the courts below, liability follows auto-
matically from publication. This is so regardless of
whether the identity of the victim is already known
throughout the community; whether the victim has
voluntarily called public attention to the offense; or
whether the identity of the victim has otherwise
become a reasonable subject of public concern—
because, perhaps, questions have arisen whether the
victim fabricated an assault by a particular person.”

491 U.S. at 539.

Precisely the same is true here. Whatever information
was previously known, whatever the significance of the
information, publication leads automatically to liability.
This Court’s conclusion in Florida Star is directly on
point:

“We have previously noted the impermissibility of
categorical prohibitions upon media access where
important First Amendment interests are at stake.
More individualized adjudication is no less indis-
pensable where the State, seeking to safeguard the
anonymity of crime victims, sets its face against
publication of their name:.”

491 U.S. at 539-40 (internal citation omitted).

Third, there is no consensus amongst the states that in
the service cf preventing wiretapping itself, it is neces-
sary to take the two separate steps of both criminalizing
wiretapping and providing a civil remedy against third
parties that publish wiretapped information. Of the forty-

20

eight states that ban wiretapping, eight have statutes that
prohibit interception but not disclosure” and another
eleven do not impose civil sanctions for disclosure.”’
The fact that these nineteen states (plus Vermont and
South Carolina, which do not have statutes banning
wiretapping at all) have not chosen to provide any civil
remedy against third parties that disseminate wiretapped
material gravitates against any finding that the state
interest involved is of the “highest order.”

The wiretapping statute is not narrowly tailored to a
state interest of the highest order within the meaning of
Florida Star.

Il. THE ARGUMENTS ADVANCED FOR SIDE-
STEPPING THE FLORIDA STAR ANALYSIS
ARE WITHOUT MERIT

Petitioners attempt to avoid the inevitable outcome of
any analysis applying Florida Star by focusing on two
arguments. First, Petitioners argue that the Florida Star

26 «See Ariz. Rev. Stat. Ann. § 13-3005 (West 1999); Ark. Code
Ann. § 5-60-120 (1999); Conn. Gen. Stat. §§ 52-570d, 53a-189
(1999); Ga. Code Ann. § 16-11-62 (2000); Mont. Code Ann. § 45-8-213
(1999); N.Y. Penal Law § 250.05 (McKinney 1999); S.D. Codified
Laws §23A-35A-20 (Michie 2000); Wash. Rev. Code Ann.
§§ 9.73.030, 9.73.060, 9.73.080 (West 1999).

27 See Ala. Code §13A-11-35 (2000); Alaska Stat.
§§ 42.20.310(a)(2), 42.20.330 (Michie 1999); Colo. Rev. Stat. Ann.
§ 18-9-303 (West 2000); 720 Ill. Compiled Stat. Ann. 5/14-2, 5/14-
6(b) (West 2000); Kan. Stat. Ann. § 21-4002 (1999); Ky. Rev.
Stat. Ann. § 526.060 (Banks-Baldwin 1998); Mich. Comp. Laws
§ 750.539h(b) (2000); N.D. Cent. Code § 12.1-15-02 (1999); Okla.
Stat. Ann. tit. 13, § 176.3 (West 1999); Or. Rev. Stat. § 165.540
(1999); R.I. Gen. Laws § 11-35-21 (1999).

28 «See Butterworth v. Smith, 494 U.S. 624, 635 (1990) (stating
that while practices in other states are not “conclusive as to the con-
stitutionality” of a statute, they are “probative of the weight” of the
state's interest).

21

line of cases is inapplicable because the statutes at issue
there were content-based while the wiretapping statute
at issue here is content-neutral. Second, Petitioners
argue that the information was not lawfully obtained by
Respondents Frederick W. Vopper, WILK Radio, and
WGBI Radio. Both arguments are without merit.

A. The Florida Star Line of Authority is Based
Upon the Overarching Public Interest in Pro-
tecting Truthful Speech

Nothing in the Florida Star line of cases indicates that
the basis of the Court’s decisions was concern about
content-based restrictions on speech. The Court said
nothing of the kind in any of the cases. In fact, the Peti-
tioners’ arguments to the contrary grossly undervalue the
actual basis for these rulings. In the words of the Court
in Florida Star itself, this line of authority is grounded
in “the overarching public interest, secured by the
Constitution, in the dissemination of truth.” Florida
Star, 491 U.S. at 533-34 (internal citation and quotation
omitted).

The paramount importance of protecting—not to say
honoring—truth-telling is deeply rooted in our Nation’s
history and culture,” as well as this Court’s juris-
prudence. Even so calamitous an assault on the First

29 The protection of truthful speech long predates our own Con-

stitution. As Professor Diane Zimmerman demonstrates in her much
quoted and exhaustive analysis on the topic in Requiem For a Heavy-
weight: A Farewell to Warren and Brandeis's Privacy Tort, 68 Cornell
L. Rev. 291 (1983), “[t}he historical evidence suggests that the
framers of the first amendment would have viewed restrainis imposed
by tort law on accurate speech—to the extent that they considered the
matter at all—as inappropriate, and that the embarrassment that might
result from true revelations was not considered a legal or compensable
wrong.” /d. at 311. See also id. at 306-08 (discussion of the Ninth
Commandment, the Old Testament Book of Psalms, Roman law,
ecclesiastical law and other bodies of jurisprudence).

22

Amendment as the Sedition Act of 1798, | Stat. 596,
recognized truth as a defense. See New York Times Co. v.
Sullivan, 376 U.S. 254, 274 (1964). Under modern libel
law, this Court has made plain that truth is an absolute
defense in cases commenced by private figures as well
as public figures. Philadelphia Newspapers, Inc., Vv.
Hepps, 475 U.S. 767 (1986). And this Court’s landmark
decision in New York Times Co. v. Sullivan, supra, itself
demonstrates the overriding value placed upon truthful
speech. It was only in the service of assuring that truth-
ful speech not be limited regarding public officials
that the Court announced the “actual malice” standard
that provides some protection even for inaccurate
speech. As part of the First Amendment’s need for
“breathing space,” the Court explained that unless some
false speech were protected:

“would-be critics of official conduct may be
deterred from voicing their criticism, even though it
is believed to be true and even though it is in fact
true, because of doubt whether it can be proved in
court or fear of the expense of having to do so. They
[would] tend to make only statements which ‘steer
far wider of the unlawful zone.’ ”

376 U.S. at 279 (citation omitted). For the same reason,
the “knowing or reckless falsehood” standard has been
extended to the tort of publication of private facts where
the material at issue concerns matters of public interest.
Time, Inc. v. Hill, 385 U.S. 374, 387-88 (1967).

The essentiality of protecting truthful speech has also
been recognized outside of the contexts of privacy and
libel. Only truthful commercial speech is protected by
the First Amendment. See, e.g., Central Hudson Gas &
Electric Corp. v. Public Service Comm'n of New York,
447 U.S. 557, 566 (1980) (“For commercial speech to
come within [the First Amendment], it at least must

23

concern lawful activity and not be misleading.”). In But-
terworth v. Smith, 494 U.S. 624 (1990), this Court held
unconstitutional a Florida statute that prohibited a grand
jury witness from revealing his own grand jury testi-
mony. The Court emphasized the importance of pro-
tecting truthful speech in its ruling: “[O]ur decisions
establish that absent exceptional circumstances, repu-
tational interests alone cannot justify the proscription of
truthful speech.” jd. at 634. See also Bates v. State Bar
of Arizona, 433 U.S. 350 (1977) (permitting truthful
commercial speech in attorney advertising to overcome
interest in maintaining professionalism of attorneys);
New York Times Co. v. United States, 403 U.S. 713
(1971) (striking injunction prohibiting truthful speech in
the face of asserted national security interests).

Given the centrality of the protection of truth in the
First Amendment jurisprudence of this Court, it is not
surprising that one leading scholarly work has concluded
that truth will “always” be “a defense in a defamation or
right of privacy action-—unless the [defendant] publishes
confidential information that he has stolen.” 4 Ronald D.
Rotunda & John E. Nowak, Treatise on Constitutional
Law § 20.36, at 495-96 (3d ed. 1999) (emphasis added).
Another leading First Amendment scholar has inter-
preted this Court’s case law similarly, observing that:

“The dissemination of a fact that might otherwise be
deemed private (and thus protected, for example,
under a newly invigorated version of the tort of
publication of private facts), will normally be
deemed protected under today’s First Amendment
standards if the fact was ‘lawfully obtained’ by the
person seeking to disseminate it. Thus, the press
may publish private material leaked to it intention-
ally or through inadvertence, even though the per-
son who leaked the material may have violated
some legal duty.”

24

Rodney A. Smolla, Privacy and the First Amendment
Right to Gather News, 67 Geo. Wash. L. Rev. 1097,
1103-04 (1999).*°

B. The Tape at Issue Was Lawfully Obtained by
the Media Respondents

There can be no serious argument that the media
respondents acted unlawfully in obtaining the tape at
issue.*' The media defendants did not wiretap the tele-
phone conversation at issue. Nor is there any suggestion
that the anonymous tapper was the agent of the media
respondents. Instead, the media respondents simply
received a copy of the tape-recorded conversation from

30 Petitioners’ focus on whether the wiretapping statute is con-

tent-neutral (a topic dealt with at length in the media respondents’
brief) not only misses the driving force behind the Florida Star line
of authority, but also overlooks a glaring failure of the statutory
scheme. Even assuming that it is content-neutral, the statute simply
prohibits “too much” speech. Ciry of Ladue v. Gilleo, 512 U.S. 43, 53
(1994) (striking down ordinance restricting size of signs as applied to
resident placing sign on lawn protesting the Persian Gulf war). In
Ladue, this Court stated: “Although prohibitions foreclosing entire
media may be completely free of content or viewpoint discrimination,
the danger they pose to the freedom of speech is readily apparent—
by eliminating a common means of speaking, such measures can sup-
press too much speech.” /d. at 55.

3! In addition to being lawfully obtained, in order to gain the
protection of the Florida Star rule, the information at issue must be
truthful and concern matters of public importance. There is no chal-
lenge to the truthfulness or the public import of the matters discussed
on the tape—nor could there be. As the decision below noted, the
“markedly contentious” negotiations between the teacher's union and
the school district “generated significant public interest and were fre-
quently covered by the news media.” Bartnicki v. Vopper, 200 F.3d
109, 113 (3d Cir. 1999). Matters pertaining to govermmental issues,
such as taxation and public education at issue here, are at the heart of
the First Amendment. See, e.g., Mills v. Alabama, 384 U.S. 214, 218
(1966) (a “major purpose of [the First] Amendment [is] to protect the
free discussion of governmental affairs”).

25

respondent Jack Yocum, who was himself the recipient
of an anonymous tape left in his mailbox. Common sense
dictates that the media respondents engaged in no unlaw-
ful behavior by simply receiving the tape; the wiretap-
ping statutes at issue support this conclusion.

In conjunction with other parts of the wiretapping
statute, 18 U.S.C. § 2511(1)(c) permits criminal and civil
sanctions to be levied against anyone who:

“intentionally discloses, or endeavors to disclose, to
any other person the contents of any wire, oral, or
electronic communication, knowing or having reason
to know that the information was obtained through
the interception of a wire, oral, or electronic com-
munication in violation of this subsection.”

Id. (emphasis added). Another provision addresses
the intentional “uses” of the same information. /d.
§ 2511(1)(d). Significantly, the statutory scheme does
not make unlawful the mere receipt of information
obtained in violation of the wiretapping laws. See
Florida Star, 491 U.S. at 536 (noting that Florida had
not taken the step of proscribing the receipt of infor-
mation). Thus, the media respondents obtained the tape
lawfully and are fully deserving of the protection set
forth in Florida Star.

Florida Star itself involved a similar, although not
identical, scenario. There, under Florida law, police
reports were not part of the “public record” open for
inspection. 491 U.S. at 536. This Court remarked as
follows:

“But the fact that state officials are not required to
disclose such reports does not make it unlawful for
a newspaper to receive them when furnished by the
government. Nor does the fact that the [Police]
Department apparently failed to fulfill its obligation
under [the statute] not to ‘cause or allowtobe.. .

26

published’ the name of a sexual offense victim make
the newspaper’s ensuing receipt of this information
unlawful.”

Id. Thus, the Court held that the newspaper had lawfully
obtained the rape victim's name notwithstanding that the
police had “failed to fulfill” its own statutory obligations
not to make the victim’s name available. /d.

Petitioners argue that, even though the information
may have been lawfully obtained by the media respon-
dents, the press may still be sanctioned for publishing
information that was illegally obtained by the original
source, citing footnote 8 of Florida Star.’ (Private
Petrs.’ Br. at 25-26; United States’ Br. at 29.) If it deter-
mines to reach this question, amici urge the Court to rule
that the press should not be equated with its ultimate
sources.** Such a rule would run contrary to the First
Amendment for at least four reasons.

First, the gover>ment has at its disposal the ability to
punish the initial unlawful behavior, as well as anyone
acting in concert with that person. Any subsequent
attempt to punish speech (where the speaker is not con-
nected in any way to the acts of the original actor) will
necessarily be an overbroad attempt to redress the orig-

32s“ Footnote 8 of Florida Star reads as follows: “The Daily Mail
principle does not settle the issue whether, in cases where information
has been acquired unlawfully by a newspaper or by a source, gov-
ernment may ever punish not only the unlawful acquisition, but the
ensuring publication as well. This issue was raised but not definitively
resolved in New York Times Co. v. United States, 403 U.S. 713 (1971),
and reserved in Landmark Communications, 435 U.S., at 837. We
have no occasion to address it here.” Florida Star, 491 U.S. at 535
n.8.

33 It is undisputed that the media respondents’ immediate source,
Respondent Jack Yocum, did not engage in the original unlawful

wiretap in any manner. Thus Yocum also received the information
lawfully.

27

inal wrong—be it theft, breach of a seal of confiden-
tiality, or, as in this case, unlawful wiretapping. See
Schneider v. State, 308 U.S. 147, 162 (1939) (“There are
obvious methods of preventing littering. Amongst these
is the punishment of those who actually throw papers on
the streets.”). As Judge Sentelle explained in his dis-
senting opinion in Boehner v. McDermott, supra, a case
also involving the federal wiretap statute at issue here:

“I do not, however, see that either the United States
or the State of Florida has established that an undif-
ferentiated burden on the speech of anyone who
acquires the information contained in the commu-
nication from the unlawful interceptor is necessary
to accomplish the state’s legitimate goal or narrowly
tailored to serve that end. I do not see how we can
draw a line today that would punish McDermott and
not hold liable for sanctions every newspaper, every
radio station, every broadcasting network that
obtained the same information from McDermott’s
releases and published it again. Not only is this not
narrow tailoring, it is not tailoring of any sort.”

191 F.3d at 485 (emphasis added). Thus, Judge Sentelle
concluded that the question reserved in footnote 8 of
Florida Star must be answered “against the burdening of
publication.” /d.**

Second, punishing the press for publishing newswor-
thy, truthful information because the source of that
information obtained it unlawfully will undoubtedly—
and quite deliberately—lead the press not to publish
such information. As a result, significant truthful infor-
mation regarding public affairs and governance may

4 For the reasons stated in Judge Sentelle’s dissenting opinion
in Boehner, the Third Circuit's decision below, and the media respon-
dents’ brief, the wiretapping statute fails intermediate scrutiny as
well.

28

never come to the public’s attention. See New York Times
Co. v. United States, 403 U.S. 713 (1971); Boehner, 191
F.3d at 484 (Sentelle, J. dissenting). See also supra,
at 3-5. Punishing the press for the publication of such
information will necessarily deter the press from inform-
ing the public and preserving the free flow of informa-
tion. See, e.g., Mills, 384 U.S. at 218-19 (noting major
purpose of the First Amendment is “to protect the free
discussion of governmental affairs” and that the press is
“to play an important role in the discussion of public
affairs”).

Third, in its efforts to report the truth and inform the
public, the press often encounters sources who may be
disabled in some way by the law from passing along the
information at issue. See supra, at 3-5. The Pentagon
Papers case, New York Times Co. v. United States, 403
U.S. 713 (1971), was one example. The New York Times
received TOP SECRET information from a source that
was not authorized to make it public and that the gov-
ernment later asserted had acted criminally in doing so.
Nevertheless, the government failed in its effort to
obtain an injunction to stifle the Times’ speech, and
there was no suggestion in any of the opinions accom-
panying the decision that the Times’ receipt of the infor-
mation was unlawful.

Landmark Communications, as well, is similar, as the
identity of the judge being investigated there was orig-
inally known to only members of the Judicial Com-
mission and participants in its activities, all of whom
were obliged to keep such information confidential. The
newspaper article at issue was based upon information
obtained from unidentified sources including “a lawyer
subpoenaed to appear at the hearing” who was obviously
bound to secrecy. Landmark Communications Appendix
at 46a. While the case focused on the issue of whether
the newspaper could be criminally punished for pub-

29

lishing the name of the judge under investigation, there
was never any suggestion that the mere acquisition of
information permitting the newspaper to identify the
judge could possibly be deemed illegal.

Finally, the very notion of equating the press with its
sources and holding the former liable for the conduct of
the latter is at variance with judicial as well as journal-
istic history. This Court has made plain that while the
press may not be constitutionally entitled to gather cer-
tain information, what it does learn it may print. That is
the essence of this Court’s ruling in Houchins v. KQED,
Inc., 438 U.S. 1 (1978), in which the Court, in deter-
mining that the press did not have a First Amendment
right of access to prisons, stated that “the government
cannot restrain communication of whatever information
the media acquires—and which they elect to reveal.” /d.
at 10 (plurality opinion of Burger, C.J., White, J., and
Rehnquist, J.). This principle is also at the heart of Jus-
tice Stewart’s similar distinction, quoted supra at 5,
between the right of the government to deny access and
the impermissibility of the press being punished for what
it publishes.*° Cf. Alexander M. Bickel, The Morality of
Consent 79 (1975) (“under the New York Times case, if
a newspaper had got hold of these documents without
itself participating in a theft of them, although somebody
else might to its knowledge have stolen them, it could
have published them with impunity”).

Thus the reasons set forth by Petitioners for removing
this case from the Florida Star/Daily Mail framework
are without merit.

* * *

35 See also Landmark Communications, 435 U.S. at 849 (“If the
constitutional protection of a free press means anything, it means that
the government cannot take it upon itself to decide what a newspaper
may and may not publish.”) (Stewart, J., concurring).

30

We offer the final thought that there is, in the end, a
certain lack of equivalence between the First Amend-
ment interests at stake here and the privacy interests that
underlie the wiretapping statute. Both are important but
only one is in the written Constitution. It should not be
too late to assert that when the First Amendment’s pro-
tection of truth-telling is pitted against an interest that
was only first identified just over a century ago,** some
deference should be given to the Framers’ expressed
intentions.

CONCLUSION

The decision of the Court of Appeals for the Third
Circuit should be affirmed.

Dated: New York, New York
October 25, 2000

Respectfully submitted

FLOYD ABRAMS*
LANDIS C. BEST

*Counsel of Record
CAHILL GORDON & REINDEL
80 Pine Street
New York, New York 10005
(212) 701-3000

Counsel for Amici Curiae

36 Compare Samuel D. Warren & Louis D. Brandeis, The Right
to Privacy, 4 Harv. L. Rev. 193 (1890) with Harry Kalven, Jr., Privacy
in Tort Law—Were Warren and Brandeis Wrong?, 31 Law & Contemp.
Probs. 326 (1966).

31

Of Counsel:

GEORGE FREEMAN, Eso.
ADAM LIPTAK, Esq.

229 W. 43rd Street

New York, New York 10036

Counsel for The New York Times Co.

RICHARD A. BERNSTEIN, Esq.
JERRY S. BIRENZ, Esq.
SABIN, BERMANTS & GOULD
4 Times Square

New York, New York 10036

Counsel for Advance Publications, Inc.

ALAN N. BRAVERMAN, Esq.
HENRY S. HOBERMAN, ESQ.
77 W. 66th Street

New York, New York 10023

Counsel for ABC, Inc.

RICHARD N. WINFIELD, ESQ.

DAVID A. SCHULZ, ESQ.

CLIFFORD CHANCE ROGERS & WELLS
200 Park Avenue

New York, New York 10017

Counsel for the Associated Press
EVE BURTON, Esq.
JENNIFER FALK WEISS, ESQ.

1 CNN Center
Atlanta, Georgia 30348-5366

Counsel for Cable News Network LP, LLLP

32

SUSANNA M. Lowy, ESQ.
51 W. 52nd Street
New York, New York 10019

Counsel for CBS Broadcasting Inc.

HAROLD W. FUSON, JR., ESQ.
JUDITH L. FANSHAW, Esq.
7776 Ivanhoe Avenue

La Jolla, California 92037

Counsel for The Copley Press, Inc.

BARBARA W. WALL, ESQ.
1100 Wilson Blvd.
Arlington, Virginia 22234

Counsel for Gannett Co., Inc.
ROBERT J. HAWLEY, Esq.

959 Eighth Avenue
New York, New York 10019

Counsel for The Hearst Corporation

GORDON YAMATE, Esq.
50 West San Fernando Street
San Jose, California 95113

Counsel for Knight-Ridder, Inc.

33

ANNE NOBLE, Esq.

3211 Connecticut Ave., NW
Suite 610

Washington, DC 20036

SLADE METCALF, Esq.

SQUADRON, ELLENOFF, PLESENT
& SHEINFELD, LLP

551 5th Avenue

New York, New York 10017

Counsel for Magazine Publishers
of America, Inc.

KENNETH VITTOR, ESQ.
1221 Avenue of the Americas
New York, New York 10020

Counsel for The McGraw-Hill
Companies, Inc.

JON FINE, Esq.
30 Rockefeller Piaza
New York, New York 10112

Counsel for National Broadcasting
Company, Inc.

RENE P. MILAM, Esq.
1921 Gallows Road, Suite 600
Vienna, Virginia 22182

Counsel for the Newspaper
Association of America

34

CORINNA VECSEY WILSON, Esq.
3899 North Front Street
Harrisburg, Pennsylvania 17110

Counsel for the Pennsylvania
Newspaper Association

KATHLEEN A. KIRBY, ESQ.
WILEY, REIN & FIELDING
1776 K Street, NW
Washington, DC 20006

Counsel for the Radio-Television
News Directors Association

Lucy DALGLISH, Esq.
1815 N. Fort Myer Drive
Suite 900 .
Arlington, Virginia 22209

Counsel for The Reporters Committee
for Freedom of the Press

M. DENISE KUPRIONIS, Esq.
312 Walnut Street
Cincinnati, Ohio 45202

Counsel for The E. W. Scripps Co.

BRUCE W. SANFORD, Esq.
ROBERT D. LYSTAD, Esq.
BRUCE D. BROWN, ESQ.
BAKER & HOSTETLER

1050 Connecticut Avenue, NW
Suite 1100

Washington, DC 20036

Counsel for the Society of
Professional Journalists

35

ROBIN BIERSTEDT, Esq.
1271 Avenue of the Americas
New York, New York 10020

Counsel for Time Inc.

STEPHANIE ABRUTYN, Esq.
ROGER GOODSPEED, Esq.

2 Park Avenue

New York, New York 10016

Counsel for the Tribune Co.

MARY ANN WERNER, Esa.
ERIC LIEBERMAN, Esq.
1150 15th Street, NW
Washington, DC 20071

Counsel for The Washington Post Co.

APPENDIX

DESCRIPTION OF AMICI CURIAE

The New York Times Company publishes The New
York Times, a daily newspaper with a national circulation
of 1.1 million daily and more than 1.7 million on Sun-
day. The company also owns the Boston Globe as well as
twenty-one regional newspapers, many nationally cir-
culated and distributed magazines such as Golf Digest,
and eight television stations.

Advance Publications, Inc., directly or through sub-
sidiaries, publishes daily newspapers in twenty-two
cities and business journals in thirty-seven cities
throughout the United States, as well as eighteen nation-
ally distributed magazines (such as The New Yorker) and
numerous World Wide Web sites.

ABC, Inc. is a broad-based communications company
with significant holdings in the United States and

abroad. It owns, alone or through its subsidiaries, the
ABC Television Network, the ABC Radio Network, ten
television stations, and forty-five radio stations.

Associated Press, the oldest and largest newsgather-
ing organization in the world, is a not-for-profit mutual
news cooperative that engages in the collection of news
from and distribution of news to its members which
include newspapers, television stations, and radio
Stations.

Cable News Network LP, LLLP, creates, produces
and distributes nationally and worldwide thirteen net-
works which provide television programming services
across dozens of platforms, including Cable News Net-
work (“CNN”), Headline News, CNN International
(“CNNI”), and CNN Interactive.

CBS Broadcasting Inc. produces and broadcasts
news, public affairs, and entertainment programming.

2a

CBS News produces morning, evening, and weekend
news programming, as well as news and public affairs
magazine shows, such as 60 MINUTES and 48 HOURS.
CBS also owns and operates television stations nation-
wide and, through a related company, Infinity Broad-
casting Corporation, owns and operates radio stations
throughout the country.

The Copley Press, Inc. publishes The San Diego
Union-Tribune and ten other daily newspapers in Cali-
fornia, Illinois, and Ohio, and operates Copley News
Service, an international news service.

Gannett Co., Inc. is a nationwide news and informa-
tion company that publishes ninety-nine daily newspa-
pers, including USA Today. Gannett publishes a number
of non-daily publications, including USA Weekend, a
weekly magazine. The company also owns and operates
twenty-two television stations and a national news
service.

The Hearst Corporation publishes newspapers, con-
sumer magazines, and business publications, owns a
leading features syndicate, has interests in several cable
television networks, and produces movies and other
programming for television.

Knight-Ridder, Inc., the nation’s second largest
newspaper publisher in terms of circulation and revenue,
publishes thirty-two daily newspapers and twenty-five
non-daily newspapers in twenty-eight U.S. markets,
reaching 8.7 million readers daily and 12.9 million on
Sunday.

Magazine Publishers of America, Inc., founded in
1919, represents 250 of the largest magazine publishers
in the United States, who collectively publish more than
1200 of the best known consumer interest titles, on a
weekly, monthly, and quarterly basis.

3a

The McGraw-Hill Companies, Inc., is a multimedia
publishing and information company which publishes
books and magazines, including Business Week, and also
operates four local television stations.

National Broadcasting Company, Inc. operates a
national television network of more than 200 affiliates
and several owned-and-operated stations, through which
it produces and broadcasts local and national news pro-
gramming, such as DATELINE NBC. It also owns two
national cable news networks, MSNBC and CNBC.

Newspaper Association of America (“NAA”) is a
nonprofit organization representing the interests of more
than 2,000 newspapers in the United States and Canada.
Most NAA members are daily newspapers, accounting
for eighty-seven percent of the U.S. daily newspaper cir-
culation. One of the NAA’s missions is to advance news-
papers’ interests in First Amendment issues, including
the ability to gather and publish truthful newsworthy
information of public significance.

Pennsylvania Newspaper Association is the official
state trade organization for the newspaper industry in the
Commonwealth of Pennsylvania. Its members include
over 300 daily, weekly, monthly and college newspapers.
It was founded eighty years ago and is considered one of
the leading press associations in the nation, having an
active membership, a staff of thirty-two and both a for-
profit and a not-for-profit subsidiary.

Radio-Television News Directors Association
(“RTNDA”), based in Washington, D.C., is the world’s
largest professional organization devoted exclusively to
electronic journalism. RTNDA represents local and net-
work news executives, educators, students and others in
the radio, television, cable and online news business in
over thirty countries.

4a

The Reporters Committee for Freedom of the Press
is a voluntary, unincorporated association of news
reporters and editors, dedicated to protecting the First
Amendment interests of the mews media and the public.
The Reporters Committee has provided representation,
legal guidance, and research in virtually every major
press freedom case that has been litigated in the United
States since 1970.

The E. W. Scripps Company is a diverse media
concern with interests in newspaper publishing, broad-
cast television, cable television programming, and inter-
active media. Scripps operates twenty daily newspapers,
ten broadcast TV stations and three cable television net-
works. The company also operates Scripps Howard
News Service, United Media, a worldwide licensing and
syndication company, and thirty-one Web sites.

Society of Professional Journalists (“SPJ”) is the
nation’s largest and most broad-based journalism orga-
nization, dedicated to encouraging the free practice of
journalism and stimulating high standards of ethical
behavior. Founded in 1909, SPJ promotes the free flow
of information vital to a well-informed citizenry; works
to inspire and educate the next generation of journalists;
and protects First Amendment guarantees of freedom of
speech and press.

Time Inc. is the largest publisher of general interest
consumer magazines in the United States, including
Time, Fortune, Sports Illustrated, People, Money, and
Entertainment Weekly. The company also publishes
books under imprints including Warner Books, Little
Brown and Time-Life Books.

Tribune Company, through its publishing, broad-
casting, and interactive operations, publishes eleven mar-
ket-leading newspapers, including the Chicago Tribune,

Sa

the Los Angeles Times, the Orlando Sentinel, and News-
day, owns and operates twenty-two major market tele-
vision stations, and operates a network of local and
national Web sites that ranks among the top twenty-five
news and information networks in the United States.

The Washington Post Co. publishes newspapers and
magazines of national interest such as the Washington
Post, with a nationwide daily circulation of over 809,000
and a Sunday circulation of over 1.1 million, as well as
Newsweek magazine.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0365%3A21. Public record. Not legal advice.