Opposition Brief — WFAA-TV, Inc. v. Peavy

| Supreme Court, US.

/)

o- FILED

DEC 2

No. 00-691 1 2000 ,

| OFFICE OF ‘Tr. © 7

IN THE

Supreme Court of the United States

WFAA-TV, INC. and ROBERT RIGGS,

Petitioners,

v.

CARVER DAN PEAVY and SALLY PEAVY,

Respondents.

On PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

BRIEF IN OPPOSITION

MICHAEL J. QUILLING

Counsel of Record

KENNETH A. HILL

QUILLING, SELANDER, CUMMISKEY

& Lownps, P.C.

Attorneys for Respondents

2001 Bryan Street, Suite 1800

Dallas, Texas 75201

(214) 871-2100

164135 @) Counsel Press LLC

(800) 274-3321 + (800) 359-6859

i

QUESTIONS PRESENTED FOR REVIEW

1. Whether the First Amendment shields the press from

a civil claim for violating the use and disclosure provisions

of the federal and state wiretap laws with full knowledge

of, encouragement of, and participation in the illegal

interceptions.

2. Whether ignorance of the law excuses a civil violation

of the use and disclosure provisions of the federal

wiretap act.

TABLE OF CONTENTS

Page

Questions Presented for Review ................ i

Table of Caml 5 oaks § ieee ore ii

Table of Cited Authorities .................000. iv

Statement of Qe ta: iso So cw ieee snack eennns l

A. Statement of Relevant Facts. ............ l

B. The Petitioners’ Factual Statements are Full

of Irrelevant, Scandalous, and Erroneous

Com. oda inven aaa 4

Reasons for Denying the Writ ................. 6

A. The Petitioners’ First Amendment Issue Does

Not Merit Review by This Court. ......... 6

1. This Case is Different from Bartnicki in

a Constitutionally Significant Respect,

and this Court’s Ruling in Bartnicki

Cannot Possibly Help the Petitioners.

og adds ck) eb aes en hee 7

2. The Fifth Circuit’s Ruling Does Not

Conflict With Any Other Federal Court

of Appeals on Any Important Matter.

iii

Contents

Page

3. The Fifth Circuit’s Ruling Follows the

Settled Precedents of this Court. ..... 10

a. The Wiretap Laws are Subject to

Intermediate Scrutiny. .......... 11

b. The Wiretap Laws Satisfy the

Intermediate Scrutiny Standard on

the Facts of this Case. .......... 13

4. The Petitioners Violated S. Ct. Rule

SOR. p chey 0s 4ss0s SONS TATOeetes 21

B. The Fifth Circuit Correctly Held That

Ignorance or Mistake of Law is Not a Defense

to Liability Under 18 U.S.C. § 2511(1)(c)

and (d). No Review by this Court is

MNS 52.4) ig a.cd 6 Cie paene ds oe 21

1. Citizens Cannot Rely on Government

Agents’ Interpretations ofthe Law. ... 22

2. Erroneous Legal Advice is Not a Defense

SG eS ee ree 23

3. The Fifth Circuit Correctly Interpreted

the Intent Requirement of the Federal

RE aS ee ee 24

SE ee Oe Pe Fe ee ee 27

iv

TABLE OF CITED AUTHORITIES

Page

Cases:

Barlow v. United States, 32 U.S. (7 Pet.) 404

ot , Peete pare gare ete oe tage erick aa 21

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

cert. granted, 68 U.S.L.W. 3685 (U.S. June 25,

ye re ery ee 6, 7, 8, 9, 10, 11, 18, 21

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

1999), petition for cert. filed, 68 U.S.L.W. 3686

CLS. Ape BS, BOO 6s aa 8, 10, 11, 16, 18

Boos v. Barry, 485 U.S. 312 (1988) ............. 11

Branzburg v. Hayes, 408 U.S. 665 (1972) ........ 13

Campiti v. Walonis, 453 F. Supp. 819 (D. Mass 1978),

aff'd, 611 F.2d 387 (ist Cir. 1979) ........... 5

Certain Interested Individuals v. Pulitzer Pub. Co.,

895 F.2d 460 (8th Cir.), cert. denied, 498 U.S. 880

(ISS sce 6sks SPOR ea 12,14

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

TATE Ye TE TE ia oe ke eee eee 12, 13

Curtis Pub. Co. v. Butts, 388 U.S. 130 (1967). .... 13

Davis v. Zirkelbach, 149 F.3d 614 (5th Cir. 1998) ... 26

4

Cited Authorities

Page

Florida Star v. B.J.F., 491 U.S. 524 (1989) ....... 11, 12

Forsyth v. Barr, 19 F.3d 1527 (5th Cir.), cert. denied,

$13 U.S. 871 (1996 oo ccc ndscccssvusteeeres 25, 26

Gelbard v. United States, 408 U.S. 41 (1972) ..... 16, 19

Goodspeed v. Harman, 39 F. Supp. 2d 787 (N.D. Tex.

to) en Perea nare Peter sr ec 1, 3,9; 22

Harper & Row, Pub., Inc. v. Nation Enters., 471 U.S.

SID CUGGS) 5 oo in B66 War 5 AAR BES 14, 19

Heggy v. Heggy, 944 F.2d 1537 (10th Cir. 1991), cert.

deniod, $03 U.S. 931 (1992)... civic ceciee 24

Hill v. Colorado, __ U.S. __, 120 S. Ct. 2480

COOOTG i 82o Sh new SSS EUG D AAAS 12, 20

Landmark Communications, Inc. v. Virginia, 435

R9.S. CIP CIGTE): noc nc ccccecccsuesssevaves osiee

Nixon v. Warner Comm., Inc., 435 U.S. 589 (1978)

Olmstead v. United States, 277 U.S. 438 (1928)... 15

Penny v. Giuffridia, 897 F.2d 1543 (10th Cir. 1990)

vi

Cited Authorities

Page

Reynolds v. Spears, 93 F.3d 428 (8th Cir. 1996) .. 22

Saxbe v. Washington Post Co., 417 U.S. 843 (1974)

sddccvacecececeeuesscnas dehmebndeneeee 13

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

os events dhs tsdeneberbhlsdaseeeee 12

Smith v. Daily Mail Pub. Co., 443 U.S. 97 (1979)

0 wb 0 00 06d bobbed e ache Chad teen teens 11

Thompson v. Dulaney, 838 F. Supp. 1535 (D. Utah

1993), aff'd, 970 F.2d 44 (10th Cir. 1992) ..... 23, 25

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

(16BG 60 6vintr. Gti RI eee 11, 13, 19

United States v. Cianfrani, 573 F.2d 835 (3d Cir.

SOTED. oc inks CS ccund ets bed wade oe 14, 16

United States v. O'Brien, 391 U.S. 367 (1968) .... 13

United States v. Townsend, 987 F. 2d 927 (2d Cir.

RODD) . cc ccccsucaadscdsceubevesseeee 24, 25

United States v. Underhill, 813 F.2d 105 (6th Cir.),

cert. denied, 482 U.S. 906 (1987) ............ 11

Watkins v. L.M. Berry & Co., 704 F.2d 577 (11th Cir.

i) Pe Pere rr re ee re oo eee 12

vii

Cited Authorities

Page

United States Constitution:

First Amendment ....... i, 3, 9, 6, 10, 11, 13, 14, 19, 24

Frowth Amen@memtt ........0° 00 2 ee 14,19

Fourteenth Amendment ....................... 20

Statutes:

1S UB. FOO Ot ate oan ecs Gh veeekccs 16

BO SeeiAen PE MEED 0s 60 checks (xs adieh cowie 11,12

BUSL. EAST. oii 21, 25

i I | Ee ne ear 21, 25

SB UBL. §2SRICG MOND 6 on bic os Sdcdcevcee 19, 20, 21

el on IE GENS Faroe Ree aR EEN 20

Tex. Civ. Prac. & Rem. Code § 123.002 ......... 20

Tex. Civ. Prac. & Rem. Code § 123.002(a) ....... 11,12

Tex. Civ. Prac. & Rem. Code § 123.002(a)(2) .... 12

viii

Cited Authorities

Page

Rules:

United States Supreme Court Rule 10 ........... 10

United States Supreme Court Rule 26.4 ......... 5

United States Supreme Court Rule 29.4(c) ....... 7, 21

Other Authorities:

S. Rep. No. 90-1097, 90th Cong., 2d Sess., reprinted

in. 1968 USCA BUA occ ivsvetecia 15, 16, 17

S. Rep. No. 99-541, 99th Cong., 2d Sess., reprinted

he 4906 U.BAA. A, BOOS: cds kn cavaisagccen 15

1

STATEMENT OF THE CASE

Dan and Sally Peavy filed this lawsuit to recover civil

damages against a local television station, WFAA-TV, Inc.

(“WFAA”), and one of its investigative reporters, Robert Riggs,

for violations of the federal and state wiretap laws. WFAA and

Riggs participated with the Peavys’ neighbors to intercept and

record the Peavys’ private telephone conversations, which they

then used and disclosed in the course of investigating a news

story. The investigation culminated in a series of highly critical

exposés on the local television news.

A. Statement of Relevant Facts.

In early December 1994, Charles and Wilma Harman began

using a police scanner to purposefully intercept the cordless

telephone calls of their neighbors, Dan and Sally Peavy.

Pet. App. 2a. At that time, Dan Peavy was a trustee for the Dallas

Independent School District (“DISD”). Jd. The Harmans claimed

that local law enforcement officials told them it was legal for

them to intercept and record the Peavys’ calls. Jd. However, in

a related case, the trial court found that no one told them their

conduct was legal. Jd. at 2a-3a; Goodspeed v. Harman,

39 F. Supp. 2d 787, 793-94 (N.D. Tex. 1999).

On December 8, 1994, Charles Harman called WFAA and

told a producer that he had evidence of wrongdoing by

Dan Peavy. Pet. App. 3a. Riggs called Harman back later that

day, and Harman explained that he suspected Dan Peavy of

public corruption. Jd. At that time, Riggs had never heard of

Dan Peavy and was not working on any story involving DISD

insurance. Jd.

The next day, Riggs went to the Harmans’ home and saw _

exactly how the Harmans were intercepting the Peavys’ calls.

2

Pet. App. 3a. The Harmans told Riggs they were intercepting

the Peavys’ cordless telephone calls with a scanner and discussed

some of the conversations they had intercepted. Jd. Riggs saw

the scanner and listened to a tape of some of the intercepted

calls. Jd. Riggs knew the parties to the calls were not aware of,

and did not consent to, the interception or recording. Jd.

There was conflicting evidence about whether Harman told

Riggs the interceptions were legal or Riggs told Harman

they were legal. Pet. App. 3a. In any event, no law enforcement

officials ever told Riggs, WFAA, or Harman it was legal.

Id. at 2a-3a.

At the conclusion of the meeting on December 9, 1994,

Riggs said he wanted any more tapes the Harmans made of the

Peavys’ calls in the future and instructed the Harmans how they

should record the calls. Pet. App. 3a-4a, 16a, 17a. Specifically,

Riggs told the Harmans not to turn the recorder off during the

calls and not to edit the tapes. Jd. at 3a-4a, 16a, 17a. The Harmans

followed Riggs’ instructions. Jd. at 17a.

Riggs took the Harmans’ tape of the Peavys’ calls and

returned to WFAA’s offices to meet with the news director and

other WFAA personnel. Pet. App. 4a. Riggs told them about his

meeting with the Harmans and played parts of the tape for them.

Id. Based on what they heard on the tape, they decided to launch

an investigation of Dan Peavy and his activities involving

insurance programs at DISD. /d. at 4a-Sa. Riggs directed WFAA

personnel to start researching the things they heard on the tape

about Dan Peavy and the DISD. Jd. at 4a.

The Harmans continued to intercept and record (consistent

with Riggs’ instructions) the Peavys’ calls. Pet. App. 16a.

Sometimes the Harmans would call Riggs to tell him they had

another tape, and sometimes Riggs would call the Harmans to

3

ask if they had more tapes. Jd. Riggs wanted more information

from the Harmans to further his investigation of Peavy, and he

asked them to keep him informed about anything else they heard

on the Peavys’ calls. Jd. Whenever the Harmans had another

tape, Riggs or his producer would go and pick it up. Jd. Riggs

had “a lot” of telephone conversations with the Harmans. Jd.

Harman hated Peavy and wanted to “take him down.”

Goodspeed, 39 F. Supp. 2d at 792-93. Riggs encouraged the

Harmans to keep intercepting the calls by assuring them he

would look into the things on the tapes and telling them he was

finding more “stuff” against the Peavys based on the tapes.

Pet. App. 16a. Harman was “delighted” at the prospect of Riggs

publicly humiliating Peavy. Goodspeed, 39 F. Supp. 2d at 792.

Over a period of approximately three months, WFAA and

Riggs took eighteen tapes from the Harmans containing

188 conversations between the Peavys and others. Pet. App. 5a.

WFAA and Riggs used and disclosed the contents of the tapes

extensively in their investigation of Peavy and insurance issues

at DISD. Pet. App. 4a-5a. WFAA personnel li:tened to

every one of the tapes and had key conversations transcribed.

Id. at 4a. They formulated story outlines, prepared memoranda,

and conducted interviews and research, all based upon the

contents of the tapes. Jd. at 4a-5Sa.

In February 1995, law enforcement officials told Riggs it

was illegal to intercept cordless telephone calls. Pet. App. 5a.

Riggs checked with WFAA’s outside attorney, Paul Watler, who

confirmed that the interceptions were illegal. Jd. However,

Watler said WFAA and Riggs could use and disclose the contents

of the tapes because the First Amendment would shield them

from liability. Jd. at Sa-6a.

4

Even after learning the interceptions were illegal, Riggs

continued to talk to the Harmans to find out what they were

hearing as they continued to intercept the Peavys’ calls.

Pet. App. 6a. WFAA and Riggs continued their investigation,

notwithstanding the illegality of the tapes on which the whole

thing was based. Jd. They also kept at least one copy of the

transcript they had made of key parts of the Peavys’

conversations.' Jd. Even after being told the tapes were illegal,

- Riggs nonetheless told federal law enforcement officials and a

Dallas Police detective about the contents of the tapes and

reported back to Harman on those discussions. Jd. at 7a.

Beginning on July 31, 1995, WFAA broadcast several

“exclusive” exposé news reports in which investigative reporter

Riggs alleged serious wrongdoing by Dan Peavy in connection

with DISD insurance programs. Pet. App. 6a-7a, 23a. Several

months later, Dan Peavy was indicted on over forty counts of

federal offenses related to his involvement with DISD insurance.

Id. at 68a. He was later acquitted of all charges after a federal

jury trial. Jd.

B. The Petitioners’ Factual Statements are Full of

Irrelevant, Scandalous, and Erroneous Contentions.

The Petitioners spend most of their background statement

(Pet. 3-7) trying to paint Dan Peavy as the villain. They spend

page after page trying to poison the Court against the Peavys,

accusing Dan of everything from corruption to racism to being

1. The Petitioners’ state “As soon as WFAA and Riggs learned

that the interceptions were unlawful, they . . . transferred all copies of

the tapes and related documents to their attorney for safekeeping.”

Pet. 15. That statement is wrong, as set forth in the Fifth Circuit opinion.

Pet. App. 6a.

5

a bad neighbor.’ Yet a few pages later, they say the specific

details of the underlying facts are not relevant to the legal issues

presented. Pet. 13.

It is important to remember that the District Court decided

the case on summary judgment evidence only. Pet. App. 74a.

Many of the District Court’s findings were not supported by

the evidence and/or were controverted by other evidence.

The Peavys did not challenge all of the District Court’s erroneous

findings, because those findings were not relevant to the issues

presented on appeal. Nor are they relevant to the issues presented

in this case.

The thrust of the Petitioners’ background statement is that

Dan Peavy is such a bad person that his rights (and apparently

those of his wife, Sally) are not worthy of protection. Even if

what the Petitioners said were completely true, it would not

somehow excuse their illegal activity. The wiretap laws protect

everyone, even prisoners, against violations by anyone,

even law enforcement officials. Campiti v. Walonis, 453 F. Supp.

819, 823 (D. Mass 1978), aff'd, 611 F.2d 387 (1st Cir. 1979).

Dan Peavy was investigated extensively by the FBI, the

DISD’s independent investigators, and the Petitioners

themselves. Pet. App. 68a. He was indicted on over 40 counts,

he was tried in a lengthy federal jury trial, and he was acquitted

of all charges. Jd.

2. The Petitioners go so far as to quote part of an anonymously

recorded telephone conversation that has absolutely nothing to do with

the Petitioners or this case. Pet. 7. The District Court (which ruled against

the Peavys) mentioned the tape but stated “A detailed recitation of

these highly offensive remarks is neither necessary nor appropriate.”

Pet. App. 69a, n.5. The Fifth Circuit never even mentioned it.

See, generally, Pet. App. 1a-60a. The Peavys object to inclusion of

that conversation in the Petition on the ground that it violates S. Ct.

Rule 26.4.

6

Throughout the Petition, the Petitioners complain that they

should not be held liable because law enforcement officials and

their attorney told them their conduct was legal. Pet. 16 (“advice

they received from the government”), 17 (“advised of the

lawfulness by local police, the district attorney, and [their] own

attorney”), 18 (“authoritative legal advice”), 19 (“advice of law

enforcement officials and legal counsel”). However, the only

advice WFAA and Riggs ever received from law enforcement

officials was that the interceptions were illegal. Pet. App. 5a.

Although Harman claimed law enforcement officials and the

district attorney’s office told him the interceptions were legal,

the trial court rejected that contention and found that no one

ever told him it was legal. Pet. App. 2a-3a. WFAA’s outside

counsel confirmed that the interceptions were illegal, but he

opined that the First Amendment would somehow shield V'FAA

and Riggs from liability. Pet. App. 5a-6a.

The Petitioners also refer to “authoritative legal advice”

and “other information” that the interceptions were not unlawful.

Pet. 18, 19. However, the only people who ever told WFAA and

Riggs the interceptions were legal were Harman (who can hardly

be considered authoritative) and and Watler (who acknowledged

his error a short time later and confirmed that the interceptions

violated the wiretap laws). Pet. App. 2a, 4a, 5a. The Petitioners

fail to explain what “other information” made them think the

interceptions were lawful.

REASONS FOR DENYING THE WRIT

A. The Petitioners’ First Amendment Issue Does Not Merit

Review by This Court.

The Petitioners make only one argument for granting their

Petition on their First Amendment issue — they say this case

presents the same constitutional question as Bartnicki v. Vopper,

7

Nos. 99-1687 and 99-1728, and ask the Court to hold the Petition

in abeyance pending the decision in that case. Pet. li, 12,

13, 15. The Petition should be denied on this issue for several

reasons. First, this case is factually and legally distinguishable

from Bartnicki in a constitutionally significant respect. Second,

the Fifth Circuit’s ruling on this issue does not conflict

with any other federal court of appeals on any important matter.

Third, the Fifth Circuit’s opinion on this issue follows the

settled precedents of this Court. Fourth, the Petitioners violated

S. Ct. Rule 29.4(c) with respect to their constitutional challenge

to the Texas statute.

1. This Case is Different from Bartnicki in a

Constitutionally Significant Respect, and this

Court’s Ruling in Bartnicki Cannot Possibly Help

the Petitioners.

The Petitioners overlook a critical distinction between this

case and Bartnicki — their own knowledge of, encouragement

of, and participation in the illegal interceptions. From the very

first sentence and throughout the Bartnicki opinion, the Third

Circuit emphasized the significance of the fact that the

defendants had nothing to do with the interception. Bartnicki v.

Vopper, 200 F.3d 109, 112, 113-114, 115, 119, 125, 128, 129

(3d Cir. 1999), cert. granted, 68 U.S.L.W. 3685 (U.S. June 25,

2000) (Nos. 99-1687, 99-1728). The court was very careful to

point out the limited scope of the question it considered and the

holding it reached:

All that is at issue is the application of those [wiretap]

Staiutes to punish members of the media who neither

encouraged nor participated directly or indirectly

in the interception.

we ee eee

We therefore hold that the Wiretapping Acts fail the

test of intermediate scrutiny and may not

constitutionally be applied to penalize the use or

disclosure of illegally intercepted information where

there is no allegation that the defendants

participated in or encouraged that interception.

Id. at 128, 129 (emphasis added).

Likewise, 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), is a case in which the defendant had

nothing to do with the illegal interception.’ Jd. at 465.

Like Bartnicki, the Boehner court carefully limited the scope of

its ruling to that specific context. See id. at 478 (Randolph, J.)

(disclosure provisions of federal and state wiretap acts are

“not unconstitutiona! as applied in this case”); id. at 478-79

(Ginsburg, J., concurring) (same).

In the case at bar, the Fifti:s Circuit recognized and respected

that Bartnicki was limited to the situation where a defendant

has nothing to do with the interception. Pet. App. 48a. The court

repeatedly emphasized WFAA and Riggs’ involvement in the

interceptions‘ and distinguished Bartnicki on that basis alone,

3. The Petitioners misstate the ruling in Boehner when they say it

“raises questions of the role of the defendant in the interception of the

telephone conversation at issue.” Pet. 14. There was no allegation or

finding in Boehner that the defendant had anything whatsoever to do

with the illegal interception. See, generally, Boehner, 191 F.3d 463.

The only question in Boehner about the conduct of the defendant was

his participation in the illegal disclosure of the conversation when he

accepted the tape from the individuals who intercepted it. Jd. at 475-76,

479, 480.

4. Pet. App. la, 16a-17a, 32a, 33a, 34a, 35a, 49a, 50a, 53a, 57a.

9

explaining that the controlling facts of Bartnicki were

“obviously, quite different from those here.” Id. at 48a.

WFAA and Riggs’ involvement with the interceptions is

constitutionally significant for two reasons. First, it avoids any

encouraged them to keep doing it. Holding WFAA and Riggs

liable in this case will not put any burden on the press to

determine how their sources got their information or restrain

publication of information from unknown or uncertain sources.

WFAA and Riggs cannot possibly be entitled to any greater

First Amendment protection than the defendants in Bartnicki,

who had no involvement whatsoever with the interception.

However, WFAA and Riggs’ involvement with the interceptions

certainly could (and the Peavys respectfully submit should) give

them less First Amendment protection than the Bartnicki

defendants. If this Court reverses Bartnicki (holding the wiretap

laws constitutional as applied), WFAA and Riggs cannot

possibly expect to prevail on their First Amendment defense.

5. WFAA and Riggs had 18 tapes of the Peavys’ calls,

which contained 188 Separate conversations. However, only about

wen percent of all intercepted conversations were taped. Goodspeed,

10

On the other hand, if the Court affirms Bartnicki (holding the

wiretap laws unconstitutional as applied), the involvement of

WFAA and Riggs in the interceptions will keep them outside

the protection of that case. Consequently, Bartnicki cannot

possibly help WFAA and Riggs.

2. The Fifth Circuit’s Ruling Does Not Conflict With

Any Other Federal Court of Appeals on Any

Important Matter.

All three federal courts of appeal that have considered a

First Amendment challenge to the wiretap laws have adopted

and applied the exact same standard — intermediate scrutiny.

Boehner, 191 F.3d at 467; Bartnicki, 200 F.3d at 123; Peavy,

Pet. App. 53a. The different results were dictated by applying

that standard to the distinct facts of each case. In each case, the

court emphasized that its holding was limited to the specific

factual circumstances involved. Boehner, 191 F.3d at 478

(Randolph, J.), 478-79 (Ginsburg, J., concurring); Bartnicki,

200 F.3d at 117, 129; Peavy, Pet. App. 34a, 57a. If any of these

three decisions is incorrect, it is due only to a misapplication of

the intermediate scrutiny standard. A petition for writ of certiorari

is “rarely granted” for that kind of error. S. Ct. Rule 10.

3. The Fifth Circuit’s Ruling Follows the Settled

Precedents of this Court.

The Fifth Circuit, like both of the other federal cou.s of

appeal that have addressed the issue, followed the settled

precedents of this Court to hold that the wiretap laws are subject

to intermediate First Amendment scrutiny. Pet. App. 53a;

Boehner, 191 F.3d at 467; Bartnicki, 200 F.3d at 123. Then the

Fifth Circuit followed the settled precedents of this Court to

1]

hold that the wiretap laws satisfy that standard as applied to the

particular facts of this case. Pet. App. 57a-58a. Those rulings

do not merit review by this Court.

a. The Wiretap Laws are Subject to Intermediate

Scrutiny.

This Court has established two levels of First Amendment

scrutiny for laws that have some impact on speech. Strict scrutiny

applies to laws that (a) target or single out the press, e.g., Smith

v. Daily Mail Pub. Co., 443 U.S. 97, 103-04 (1979), or (b)

regulate speech based on content, e.g., Boos v. Barry, 485 U.S.

312, 321 (1988). Otherwise, intermediate scrutiny applies.

E.g., Turner Broadcasting Sys., Inc. y. FCC, 512 U.S. 622,

642 (1994). The wiretap laws at issue in this case do not fall

within either category of laws that would trigger strict scrutiny.

The federal and Texas wiretap laws do not target or

single out the press. They apply equally to all “persons.”

18 U.S.C. § 2511(1); Tex. Civ. Prac. & Rem. Code § 123.002(a).

They also prohibit all uses and disclosures, not just

media publication. /d.; cf. Daily Mail, 443 U.S. at 98 (applied

strict scrutiny to statute that prohibited certain information from

being “published in any newspaper without a written order of

the court”); Florida Star v. B.J.F., 491 US. 524, 526 (1989)

(applied strict scrutiny to statute that prohibited certain

information from being disseminated “in any instrument of mass

communication”).

The federal and Texas wiretap laws do not regulate speech

on the basis of content. Five federal courts of appeal have held

that the federal wiretap act is content-neutral. Peavy, Pet. App.

53a; Bartnicki, 200 F.3d at 123; Boehner, 191 F.3d at 467-68;

see also, United States y. Underhill, 813 F.2d 105,

110 (6th Cir.), cert. denied, 482 U.S. 906 (1987) (illegality is

12

not determined by the subject of the intercepted communication);

Watkins v. L.M. Berry & Co., 704 F.2d 577, 584 (11th Cir. 1983)

(same). Although the Texas wiretap act uses different language

that the federal act, the Texas act is likewise content-neutral.

Tex. Civ. Prac. & Rem. Code § 123.002(a)(2).

Government regulation of expression is “content neutral”

if it is justified without reference to the content of the regulated

speech. E.g., Hill v. Colorado, _ U.S. __, 120 S. Ct. 2480,

2491 (2000). The use and disclosure provisions of the wiretap

laws are triggered not by the content of the communication, but

rather by the conduct by which the information was obtained

(i.e., unlawful interceptions). 18 U.S.C. § 2511(1); Tex. Civ.

Prac. & Rem. Code § 123.002(a). The Petitioners would have

been free to use and disclose the same content if they had gotten

it without the aid of the illegally intercepted tapes. Certain

Interested Individuals v. Pulitzer Pub. Co., 895 F.2d 460, 467

(8th Cir.), cert. denied, 498 U.S. 880 (1990). The only

significance of the content of the intercepted communication is

to prove the existence of a violation and the amount of damages.’

6. The Fifth Circuit's ruling is perfectly consistent with this Court’s

by the source of the information sought to be disclosed or the method

by which the information was acquired. Seattle Times Co. v. Rhinehart,

467 U.S. 20, 33-34 (1984) (information produced to a newspaper in

civil discovery); Cohen v. Cowles Media Co., 501 U.S. 663, 670-71

(1991) (reporter obtain-< information by agreeing not to publish the

source’s name). Strict scrutiny is not appropriate for these kinds of

restrictions. Cohen, 501 U.S. at 670-71; Seattle Times, 467 U.S. at

33-34; of, e.g., Florida Star, 491 U.S. at 526 (applied strict scrutiny to

statute that prohibited publishing the name of a victim, regardless of

how the press obtained the name).

7. This Court has never held, or suggested, that it is improper

to look at the content of an oral or written statement in order to

determine whether a rule of law applies to a course of conduct.

Hill, 120 S. Ct. at 2492.

13

The Petitioners are not entitled to any greater

First Amendment protection just because they are members of

the media. The media does not have any greater

First Amendment protection of its speech than other persons.

Cohen, 501 U.S. at 670; Branzburg v. Hayes, 408 U.S. 665,

691 (1972); Curtis Pub. Co. v. Butts, 388 U.S. 130, 150 (1967).

Nor does the media enjoy any special right of access to

information over other persons. Branzburg, 408 U.S. at 684;

Nixon v. Warner Comm., Inc., 435 U.S. 589, 609 (1978);

Saxbe v. Washington Post Co., 417 U.S. 843, 849-50 (1974).

In the words of this Court:

It would be frivolous to assert ... that the First

Amendment, in the interest of securing news or

otherwise, confers a license on either the reporter or

his news sources to violate valid criminal laws.

Although stealing documents or private wiretapping

could provide newsworthy information, neither

reporter nor source is immune from conviction for

such conduct, whatever the impact on the flow

of news.

Branzburg, 408 U.S. at 691.

b. The Wiretap Laws Satisfy the Intermediate

‘Scrutiny Standard on the Facts of this Case.

Under this Court’s intermediate scrutiny standard,

a regulation will be sustained if it furthers an important

or substantial governmental interest, the governmental interest

is unrelated to the suppression of free expression, and the

incidental restriction on First Amendment freedoms is no greater

than is essential to the furtherance of that governmental interest.

Turner, 512 U.S. at 662; United States v. O’Brien, 391 U.S.

367, 376 (1968).

14

The Constitution guarantees citizens a right of privacy

in their communications. The First Amendment right of free

speech includes a concomitant right of privacy not to speak

publicly. Harper & Row, Pub., Inc. v. Nation Enters., 471 U.S.

539, 559-60 (1985). The First Amendment freedom not to speak

publicly serves the same ultimate end as the First Amendment

freedom to affirmatively speak. Jd. Likewise, the Fourth

Amendment protects the right of “conversational privacy.”

Pulitzer, 895 F.2d at 464.

The government obviously has a substantial interest in

protecting the constitutional right of privacy in communications.

That interest is unrelated to the suppression of free expression;

instead, it promotes free expression by assuring citizens that

their private communications will remain private:

[P]rotection of the privacy of communications is

vital to our society. We depend upon the free

interchange of ideas and information. And we are

dedicated to the proposition that each individual

should be free from unwarranted intrusion into his

private affairs. Both these interests are threatened

by modern techniques of electronic surveillance,

however, since it is now possible to record

surreptitiously the most intimate conversations and

to preserve them for later disclosure.

United States v. Cianfrani, 573 F.2d 835, 856 (3d Cir. 1978).

The wiretap laws promote the government’s interest in

protecting the privacy of communications. In 1968, Congress

found that “[t}he tremendous scientific and technological

developments that have taken place in the last century have made

possible today the widespread use and abuse of electronic

surveillance techniques. As a result of these developments,

15

privacy of communication is seriously jeopardized .. . .”

S. Rep. No. 90-1097, 90th Cong., 2d Sess., reprinted in 1968

U.S.C.C.A.N. 2112, 2154. More specifically, Congress found

as follows:

Commercial and employer-labor espionage is

becoming widespread. It is becoming increasingly

difficult to conduct business meetings in private.

Trade secrets are betrayed. Labor and management

plans are revealed. No longer is it possible, in short,

for each man to retreat into his home and be left

alone.[*] Every spoken word relating to each man’s

personal, martial, religious, political, or commercial

concerns can be intercepted by an unseen auditor

and turned against the speaker to the auditor’s

advantage.

Id. (footnote added).

In 1986, Congress found that the development of cellular

telephones, computers, and other new means of electronic

communication had made the problem even worse.

“[T]remendous advances in telecommunications and computer

technologies have carried with them comparable technological

advances in surveillance devices and techniques,” increasing

the risk that communications “may be open to possible wrongful

use and public disclosure by . . . unauthorized private parties.”

S. Rep. No. 99-541, 99th Cong., 2d Sess., reprinted in 1986

U.S.C.C.A.N. 3555, 3557.

8. The “right to be let alone” has been characterized as “the most

comprehensive of rights and the right most valued by civilized men.”

Olmstead v. United States, 277 U.S. 438, 478 (1928) (Brandeis, J.,

dissenting).

16

Congress responded to these privacy concerns by enacting

the federal wiretap act, 18 U.S.C. § 2510, et seg., which

represents a “comprehensive scheme for the regulation

of wiretapping and electronic surveillance.” Gelbard v. United

States, 408 U.S. 41, 46 (1972). In enacting those laws, Congress

“intended to protect the privacy of the communication

itself” and intended for the protection to be “ hensive.”

1968 U.S.C.C.A.N. at 2178.

In addition to the federal wiretap act, 45 states and the

District of Columbia have enacted statutes that prohibit

interception and disclosure of electronic communications.

See Boehner, 191 F.3d at 468, n.6 (listing state statutes).

That bolsters the congressional and judicial findings that the

use and disclosure provisions of the wiretap laws effectively

promote the government’s interest in protecting the privacy of

communications. See Landmark Communications, Inc. v.

Virginia, 435 U.S. 829, 834-35 (1978) (the fact that 47 states

and the District of Columbia require judicial review commission

proceedings to be kept confidential indciates that confidentiality

promotes the government’s interest in insuring the ultimate

effectiveness of judicial review commissions).°

The use and disclosure provisions of the wiretap laws are

essential to protect the privacy of communications: “Only by

governing strictly both authorization [of interception] and

disclosure of intercepted communications did Congress believe

that such weighty interests could be protected adequately.”

Cianfrani, 573 F.2d at 855. From the outset, Congress

recognized that prohibition of interception alone would not be

enough to protect the privacy of communications. The identities

9. The Petitioner in Landmark did not challenge the statutory

requirement of confidentiality. 435 U.S. at 836. Only two other states

had provisions similar to the one this Court struck down on constitutional

grounds in Landmark. Id.

17

of those involved in unlawful interception “{a]ll too often . . .

will go unknown.” 1968 U.S.C.C.A.N. at 2156. “Only by

striking at all aspects of the problem can privacy be adequately

protected.” Jd.

In particular, the use and disclosure provisions of the wiretap

laws are essential parts of Congress’ comprehensive scheme to

protect the privacy of communications. It is important to keep

in mind that the focus of the wiretap laws is on the privacy of

the communication itself. 1968 U.S.C.C.A.N. at 2178.

Prohibiting use and disclosure of illegally intercepted

communications obviously helps preserve the privacy of the

communication. As the Fifth Circuit recognized below,

“the invasion of privacy that occurs with interception does not

then end, but continues anew and spreads with each disclosure

or other use of the interception.” Pet. App. 57a. Although privacy

interests are damaged when a private communication is

intercepted, the damage is far greater when that communication

is used and disclosed. Jd. This case aptly demonstrates the need

for prohibiting use and disclosure of illegally intercepted calls.

The interception and recording destroyed the Peavys’ privacy;

the uses and disclosures destroyed their lives.

The D.C. Circuit succinctly explained the need to prohibit

disclosure (and by implication, use) of illegally intercepted

communications:

Unless disclosure is prohibited, there will be an

incentive for illegal interceptions; and unless

disclosure is prohibited, the damage caused by an

illegal interception will be compounded. It is not

enough to prohibit disclosure only by those who

conduct the unlawful eavesdropping. One would not

expect them to reveal publicly the contents of the

18

communication; if they did so they would risk

incriminating themselves. It was therefore

“essential” for Congress to impose upon third

parties, that is, upon those not responsible for the

interception, a duty of nondisclosure.

Boehner, 191 F.3d at 470. Without the use and disclosure

prohibitions, criminals who illegally intercept calls could

“launder intercepted information,” and there would be almost

no force to deter exposure of any intercepted secret. Jd. The use

and disclosure prohibitions effectively “d:y up the market” for

illegally intercepted communications, thereby removing a strong

incentive for the interceptions. Jd.

Some have argued that the government’s interest in

protecting the privacy of communications could be

accomplished without the use and disclosure prohibitions, by

instead focusing more on apprehending and punishing the

interceptor. That argument fails for several reasons. First, the

clandestine nature of interception will often make it impossible

to find the interceptor. See, e.g., Bartnicki, 200 F.3d at 113,

115, 129 (tape left anonymously in mail box; identity of

interceptor not known). Second, the government may choose,

for whatever reason, not to prosecute the interceptor. In the case

at bar, the Harmans were never prosecuted for the interceptions

that WFAA and Riggs used and disclosed.'® Third, the

interceptor might not have sufficient assets available to satisfy

a civil damage judgment in favor of the victim. Finally, and

most importantly, wrongdoers (like WFAA and Riggs) would

10. Charles Harman was prosecuted for a single interception

he committed long after WFAA and Riggs had their 18 tapes.

Pet. App. 6a. He pleaded guilty and was punished with a $5,000

fine. Jd.

19

be able to shield themselves from liability simply by finding

someone else (like the Harmans) to do their “dirty business.”

Any incidental restriction on First Amendment freedoms

is no greater than is essential to further the governmental interest

in protecting the privacy of communications. To satisfy this

element of the intermediate scrutiny test, a statute need not be

the least speech-restrictive means of ac ancing the government’s

interest. Turner, 512 U.S. at 662. All that is necessary is that the

Statute must promote a substantial government interest that

would be achieved less effectively absent the regulation. Jd.

The statute will pass constitutional muster as long as it does not

burden substantially more speech than is necessary to further

the government’s legitimate interests. Jd.

Although the wiretap laws have some incidental effect

on speech, as set forth above, they greatly promote the

First Amendment right not to speak publicly and the Fourth

Amendment right of conversational privacy. In the same way,

for example, the copyright laws promote rather than offend

constitutional values, even though they undeniably restrict

some expression. Harper & Row, Pub., Inc. v. Nation Enters.,

471 U.S. 539, 560 (1985).

The use and disclosure provisions of the wiretap laws do

not burden any more speech than is necessary to further the

government's legitimate interests. By their terms, the wiretap

laws are limited to intentional (i.e., not accidental) use or

disclosure by one who “know{s] or ha[s]} reason to know that

the information was obtained through the interception of a . ee

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

11. Gelbard v. United States, 408 U.S. 41, 63 (1972) (Douglas, J.,

business Ee Tine 10 illegally intercepting telephone calls as “dirty

20

§ 2511(1)(c)(d). The Texas wiretap statute contains similar

language. Tex. Civ. Prac. & Rem. Code § 123.002.

These provisions avoid any possibility of burdening more

speech than necessary to protect the privacy of communications.

The use and disclosure prohibitions do not apply to accidental

uses or disclosures, and they do not apply unless the person

knows or has reason to know how the information was obtained.

Furthermore, the exact same information can be used and

disclosed freely, as long as it did not come from an illegal

interception. In the case at bar, the involvement of WFAA and

Riggs in the interceptions absolutely negates any possibility that

the wiretap laws, as applied in this case, will chill protected

speech or lead to self-censorship. The only speech that is

burdened by the wiretap laws as applied in this case is that which

is essential to protect the privacy of telephone conversations. '*

We are not faced here with a reporter who merely received

a tip from a source, not knowing how the source got the

information.'® The wiretap laws do not impose or imply any

12. The question of whether the information is a matter of “public

significance” is irrelevant to the constitutional analysis. First, the press

would not use or disclose information that was not publicly significant

in some respect. Second, creating an exception for information of public

significance would discriminate on the basis of content, which could

raise serious constitutional problems under the First Amendment

and the Equal Protection Clause of the Fourteenth Amendment.

Hill, 120 S. Ct. at 2492-93. Third, such an exception would ignore the

plain language of the statute and create a judicial exception not

contemplated by the legislature. Finally, such an exception would conflict

with the suppression rule of 18 U.S.C. § 2515, which prohibits the

Coates of Serene eee eretine Len eC

any judicial proceeding.

13. Nor are we faced here with a person who overheard evidence

of imminent violence and disclosed the information in

(Cont'd)

21

duty on the media to determine how their sources got their

information. But they do subject the media to liability in

situations where (like here) a reporter knows for certain the

information was obtained by intercepting private telephone calls

and where he participated in and encouraged the interceptions.

4. The Petitioners Violated S. Ct. Rule 29.4(c).

The Petitioners squarely challenge the constitutionality of

the use and disclosure provisions of the Texas wiretap statute.

Pet. i; Pet. App. 112a. Neither the State of Texas no: any agency,

officer, or employee thereof is a party to this case. Pet. ii. Those

two facts trigger the notice and certification requirements of

S. Ct. Rule 29.4(c). However, the Petitioners failed to comply

with any of the provisions of that rule. The Peavys respectfully

submit that the Court should deny the Petition with respect to

the Texas wiretap act, because the Petitioners failed to notify

the Texas Attorney General that a Texas statute is being

challenged on constitutional grounds.

B. The Fifth Circuit Correctly Held That Ignorance or

Mistake of Law is Not a Defense to Liability Under

18 U.S.C. § 2511(1)(c) and (d). No Review by this Court

is Warranted.

It is axiomatic in American jurisprudence that ignorance of

the law is no excuse and that all citizens are presumed to know

the law. E.g., Barlow v. United States, 32 U.S. (7 Pet.) 404,

411 (1833). The Petitioners, however, contend that the Fifth

(Cont'd)

an effort to prevent bodily harm. Cf. Bartnicki, 200 F.3d at 113

(local union president talked about blowing off the front porches of

Persons Opposing pay raise). Although some narrow exception for

necessity might allow a disclosure to law enforcement officials to prevent

imminent violence, there is no possible exception that would allow the

media to use and disclose the information for a news report several

months after the interception.

22

Circuit erred in holding that ignorance of the law or mistake of

law is not a defense to liability under the federal wiretap act.

They contend that they lacked the requisite state of mind to

violate the statute because they allegedly relied on the advice of

law enforcement officials and their attorney to the effect that

their conduct was legal. In support of their argument they grossly

misstate the facts and reference inopposite case law.

1. Citizens Cannot Rely on Government Agents’

Interpretations of the Law.

WFAA and Riggs contend they were advised by law

enforcement officials that their conduct was legal. No such thing

occurred. In fact, the only law enforcement officials they

consulted told them it was illegal. Pet. App. 5a. Instead, it was

Harman who told Riggs that he (Harman) had been told it was

legal. Pet. App. 3a. WFAA and Riggs relied blindly on Harman.

In actuality, however, Harman had never been told anything of

the sort.'*

In any event, it is irrelevant whether Harman had or had

not been told by law enforcement officials that :t was legal to

intercept the Peavys’ calls. Reynolds v. Spears, 93 F.3d

428, 436 (8th Cir. 1996) (reliance on law enforcement officer’s

erroneous advice did not absolve defendant of liability);

Penny v. Giuffridia, 897 F.2d 1543, 1547 (10th Cir. 1990)

(citizens are expected to know the law and may not rely on

government agents’ incorrect interpretations of the law).

The Model Penal Code, which the Petitioners cite as

authoritative, confirms that citizens are not entitled to rely on

law enforcement officials and government agents to interpret

14. Pet. App. 2a-3a; Goodspeed, 39 F. Supp. 2d at 793-94

(“Harman was never told that his actions were legal.”)

23

the law. As discussed in Kratz v. Kratz, 477 F. Supp. 463, 480

(E.D. Penn. 1979), the Model Penal Code states that in order

for a criminal defendant to claim reasonable reliance on an

Official but erroneous statement of law, the official statement of

the law must be contained in (1) a statute; (2) ajudicial decision;

(3) an administrative order; or (4) an official interpretation of

the public officer or body charged by law with responsibility

for the interpretation, administration or enforcement of the law

defining the offense. This is not a criminal case, and neither the

alleged statements (which never occurred) nor the persons who

allegedly made them (who never did) satisfy the standard

proposed by the Petitioners.

The Petitioners try to sidestep this clear legal principle by

posing a hypothetical about getting written advice from Attomey

General Reno about the legality of their conduct. Pet. 18.

But nothing like that ever happened in this case. Neither the

Petitioners nor the Harmans ever requested or received any

advice from Attorney General Reno or anyone in her office.

No law enforcement officials or government agents ever told

the Harmans their actions were legal. The only advice the

Petitioners got from law enforcement officials or government

agents was that their activities were illegal. Thus, the Petitioners’

hypothetical is inapposite to the case at bar.

2. Erroneous Legal Advice is Not a Defense to

Liability.

The Petitioners did, however, consult their attorney and

initially he was wrong. For that they have a remedy.

His erroneous advice, however, does not exculpate them from

liability under the federal wiretap act. Thompson v. Dulaney,

838 F. Supp. 1535, 1542 (D. Utah 1993), aff'd, 970 F.2d 44

(10th Cir. 1992); Kratz, 477 F. Supp. at 466. Petitioners argue

24

that “there is every reason to think that [they] would have acted

differently had they received accurate legal advice.” Pet. 18.

Such a statement is false. Their lawyer corrected himself a short

time later and told the Petitioners their conduct was illegal.

Undeterred, they nevertheless forged ahead taking comfort

in what they considered to be their trump card — the

First Amendment. They had a chance to act differently and they

did not. They sought not to comply with the law but rather to

find a way around it. Petitioners argue they acted responsibly

once they heard their conduct was illegal. They did not. Acting

responsibly would have required that they cease the investigation

completely and move on to another story. With presumed and

actual knowledge of the law, they chose to continue forward.

The Fifth Circuit, in rejecting the Petitioners’ mistake of

law defense, aligned itself with every other court that has

considered the issue in the context of the federal wiretap laws.

The Petitioners cannot cite a single case to the contrary because

there are none. To the extent the Petitioners argue that there

should be such a defense, that is a matter properly left to the

legislature. The courts are justifiably reluctant to create

exceptions where none exist, choosing instead to leave those

matters properly to the legislature. E.g., Heggy v. Heggy,

944 F.2d 1537, 1541-42 (10th Cir. 1991), cert. denied, 503 U.S.

951 (1992).

3. The Fifth Circuit Correctly Interpreted the

Intent Requirement of the Federal Wiretap Act.

The element of intent under the federal wiretap act'* means

only that the act was done purposefully, rather than accidentally.

E.g., United States v. Townsend, 987 F. 2d 927, 930 (2d Cir.

15. The Petitioners have not challenged the Fifth Circuit’s ruling

with respect to the Texas wiretap act.

25

1993); Forsyth v. Barr, 19 F.3d 1527, 1534 (5th Cir.),

cert. denied, 513 U.S. 871 (1994). The focus of the “intentional”

element is on the volitional nature of the act and not on the

knowledge of the act’s illegality. E.g., Thompson, 838 F. Supp.

at 1542. The Petitioners do not say their uses and disclosures

were accidental.

The language of the statute does not support the Petitioners’

mistake of law defense:

Except as otherwise specifically provided in this

chapter any person who . . . intentionally discloses

[or uses] ... the contents of any wire, oral, or

electronic communication, knowing or having

reason to know the information was obtained

through the interception of a wire, oral, or electronic

communication in violation of this subsection. . . .

18 U.S.C. § 2511(1)(c, d). The words “wire, oral, or electronic

communication in violation of this subsection” simply describe

the kind of information that a person is prohibited from using

or disclosing, e.g., information from a telephone conversation

intercepted without consent of at least one party to the call or a

court order authorizing the interception. The federal wiretap

act contains a lengthy description of interceptions that are

prohibited, as well as a number of specific exceptions to those

prohibitions. The use and disclosure provisions would be

unintelligible if they had to repeat all of the terms defining the

parameters of which interceptions are prohibited.

The words “knowing or having reason to know” do not

imply any requirement that the offender subjectively know the

terms of the federal wiretap laws. All they require is that the

offender know the underlying facts and circumstances of the

26

interception that would bring the interception within the scope

of interceptions prohibited by other parts of the statute. Forsyth,

19 F.3d at 1534. As with other laws, everyone is presumed to

know the federal wiretap laws. Jd.

This is not a criminal case, and the standards used in

assessing criminal intent do not apply. As noted by the District

Court, the federal wiretap act is a general intent statute even in

the criminal context. Pet. App. 80a-81a. All of the cases cited

by the Petitioners (other than Kratz and Davis) are criminal

cases and involve specific intent crimes. They have no

application to this case. Kratz involved a lawyer’s reliance on a

published judicial opinion. 477 F. Supp. at 483. Davis v.

Zirkelbach, 149 F.3d 614 (Sth Cir. 1998), did not involve any

issue of intent, but rather involved a defense of official immunity

and whether the law at issue was “clearly established” at the

time of the official’s conduct. Jd. at 620. Neither Xratz nor Davis

supports the Petitioners’ mistake of law defense. Kratz expressly

rejected that defense. 477 F. Supp. at 480.

27

CONCLUSION ms

For the foregoing reasons, the Petition for Writ of Certiorari

should be denied.

Respectfully submitted,

MICHAEL J. QUILLING

Counsel of Record

KENNETH A. Hai

QUILLING, SELANDER, CUMMISKEY

& Lownps, P.C.

Attorneys for Respondents

2001 Bryan Street, Suite 1800

Dallas, Texas 75201

(214) 871-2100