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

~~ Supreme Court, U.S. |

4) FILBD

FEB | 200] y |

No. 00-849 | er ° 2001

Orrich OF THE CLERK

IN THE oS SO eaenencieenennanae

Supreme Court of the Gnited States

CARVER DAN PEAVY, ET UX.,

Cross-Petitioners,

V.

WFAA-TYV, INC., ET AL.,

Cross-Respondents.

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

RESPONSE TO CROSS-PETITION

FOR WRIT OF CERTIORARI

WILLIAM D. SIMS, JR. LAURENCE H. TRIBE

THOMAS S. LEATHERBURY - Counsel of Record

MARIE R. YEATES JONATHAN S. MASSEY

MICHAEL L. RAIFF 420 Hauser Hall

STACEY H. DORE 1575 Massachusetts Ave.

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

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

Dallas, TX 75201

(214) 220-7700

Counsel for Cross-Respondents

February 9, 2001

BATEMAN & SLADE, INC. BOSTON, MASSACHUSETTS

CORPORATE DISCLOSURE STATEMENT

WFAA-T\V, Inc. isnow WFAA-TV, L.P. Its general partner

is WFAA-TV of Texas, Inc., and its limited partner is WFAA

Holdings, Inc. Pursuant to Rule 29.6 of the Rules of this Court,

petitioner states that the A.H. Belo Corporation, a publicly held

corporation, owns more than 10% of its stock.

ii

TABLE OF CONTENTS

CORPORATE DISCLOSURE STATEMENT ........... i

TABLE OF AUTHOMITINS .ic3 ies anaes iii |

~ RESPONSE TO CONDITIONAL CROSS-PETITION

FOR WRIT OF CRRTIQRART Ji... cocccnexesccees: 1

ARGUMENT . ....4.555546 30s oe Se ee ae 2

I. THE FIFTH CIRCUIT CORRECTLY HELD

THAT THERE IS NO PRIVATE RIGHT OF

ACTION FOR “PROCUREMENT.” ........-+++: 2

Il. THE FIFTH CIRCUIT PROPERLY DECLINED

TO REVIEW THE STATUTORY

SUPPRESSION ISSUE ........cccccceeccecees a

CONCLUSION oc dcteic Gey wkeee Ome ereesesven oa 9

ili

TABLE OF AUTHORITIES

Cases: Page

Bartnicki v. Vopper, No. 99-1687 ........... cece eee eee l

Lindsey v. Normet, 405 U.S. 56 (1972) ...........-0008: 5

McQuade v. Michael Gassner Mechanical & Elec.

Contractors, Inc., 587 F. Supp. 1183 (D. Conn. 1984) .. 6

Nix v. O'Malley, 160 F.3d 343 (CA6 1998) ............. 6

Steve Jackson Games v. United States Secret Service,

EE 6 on bas ocho baa n ae bi ceecoss 8

NE Wa PO Wilc POP CRUUOD «ccc ccs cccevectnwcess 3

United States v. Burroughs, 564 F.2d 1111 (CA4 1977).... 8

United States v. Caron, 474 F.2d 506 (CAS 1973) ........ 7

United States v. Echavarria-Olarie, 904 F.2d 1391

EY Bie da spon ke Git ca wabwadwes bd k's 6-7

United States v. Gonzales, 520 U.S. 1 (1997) ............ 4

United States v. Havens, 446 U.S. 620 (1980) ........... 7

United States v. Liddy, 354 F. Supp. 217 (D.D.C. 1973),

rev'd in part, No. 73-1020 (CADC Jan. 19, 1973)...... 6

United States v. Murdock, 63 F.3d 1391 (CA6 1995) ...... 8

United States v. Underhill, 813 F.2d 105 (CA6),

TE I, Ge Ch PE CUSED oc vc cccwcccicessens 6

United States v. Vest, 813 F.2d 477 (CA1 1987).......... 7

United States v. Vopper, No. 99-1728 ...........000008. 1

United States v. Winter, 663 F.2d 1120 (CA1 1981),

cert. denied, 460 U.S. 1011 (1983) .................. 7

Walder v. United States, 347 U.S. 62 (1954) ............. 7

Williams v. Poulos, 11 F.3d 271 (CA1 1993) ............ 6

Statutes: Page

eee od ace Vea e eae ae SoMa 8 1,4, 5

i i ak all wale Pe wow uk oe Rie 4-8

IE C56 ois cn sb ck bed deb eka kes ¥8 eR sd Kem 8

I on oe Oa aa 2-3

iv

Miscellaneous: Page

S. Rep. No. 1097, 90" Cong., 2d Sess.,

reprinted in 1968 U.S.C.C.A.N. 2112 .........c0000 5

RESPONSE TO CONDITIONAL CROSS-PETITION

FOR WRIT OF CERTIORARI

Cross-petitioners Dan and Sally Peavy have filed a

conditional cross-petition raising two questions:

Whether the Fifth Circuit correctly held that the federal

wiretap statute, 18 U.S.C. § 2510 et seqg., does not create a

private right of action for “procuring” another person to intercept

a wire, oral, or electronic communication.

Whether the Fifth Circuit, properly declined to rule on

petitioners’ argument that the statutory suppression rule of 18

U.S.C. § 2515 prohibits a defendant in a civil lawsuit from

introducing the contents of illegallyintercepted communications

into evidence to defend against state-law claims or to support

affirmative defenses to liability under the federal wiretap act.

Although the Fifth Circuit’s judgment with respect to these

issues was plainly correct, and although the Peavys have not

identified any relevant circuit conflicts, cross-respondents

WFAA-TV and Robert Riggs do not oppose the grant of

certiorari on these questions. WFAA-TV and Riggs have

themselves petitioned for certiorari concerning two different

aspects of the Fifth Circuit’s decision:

(1) the Court of Appeals’ holding that the First Amendment

permits the imposition of civil liability on a media defendant

under 18 U.S.C. § 2511(1)() and (d), and aparallel Texas state

wiretap statute, for using or disclosing the contents of illegally

intercepted communications — a question similar to that

presented in Bartnickiv. Vopper, No. 99-1687, and United States

v. Vopper, No. 99-1728, cert. granted, 120 S. Ct. 2716 (June 26,

2000) (oral argument Dec. 5, 2000); and

(2) the Fifth Circuit’s holding that 18 U.S.C. § 2511(1)(c) and

(d), which require a showing that the defendant “know[s] or

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

violation of this subsection,” permit the imposition of liability

even if the defendant can show, on the basis of advice from law

2

enforcement officials, legal counsel, or similarly authoritative

sources of information, that he was not aware of the statutory

prohibition.

The questions presented by WFAA-TV and Riggs are

important questions of federal law with respect to which this

Court’s review is urgently required. After granting certiorari on

the questions presented by WFAA-TV and Riggs, this Court may

wish to consider the full array of statutory interpretation issues

arising under the federal wiretap law. According, WFAA-TV

and Robert Riggs do not oppose the grant of certiorari on the

questions presented by the Cross-Petition, although the Peavys’

legal arguments have no merit.

ARGUMENT

I. THE FIFTH CIRCUIT CORRECTLY HELD THAT

THERE IS NO PRIVATE RIGHT OF ACTION FOR

“PROCUREMENT.”

- The Fifth Circuit correctly held that the federal wiretap

statute, 18 U.S.C. § 2510 et seg., does not create a private right

of action for “procuring” another person to intercept a wire, oral,

or electronic communication. Pet. App. in No. 00-691, at 10a-

12a. The question is resolved by the statutory text of the

provision authorizing a civil damages remedy, 18 U.S.C. § 2520.

Prior to its amendment in 1986, that provision stated:

Any person whose wire or oral communication is

intercepted, disclosed, or used in violation of this chapter

shall (1) have a civil cause of action against any person

who intercepts, discloses, or uses, or procures any other

person to intercept, disclose, or use such communications,

and (2) be entitled to recover from any such person

[damages, attorney’s fees, and costs].

18 U.S.C. § 2520 (1970) (emphasis added). But the “or procures

3

any other person” language was deleted when the section was

amended in 1986. Pet. App. in No. 00-691, at 10a-lla. As

amended, § 2520 currently provides, in pertinent part, that

any person whosewire, oral, or electronic communication

is intercepted, disclosed, or intentionally used in violation

of this chapter may in a civil action recover from the

person or entity which engaged in that violation such

relief as may be appropriate.

18 U.S.C. § 2520(a) (Supp. 2000).

Thus, in 1986 Congress deleted the statutory language

authorizing a private right of action for “procuring” an

interception. Civil liability under 18 U.S.C. § 2520(a) extends

only to “the person or entity which engaged in that violation.”

(emphasis added). The “violation” in question is defined as

“interceptfing], disclos[ing], or intentionally us[ing]” a

communication — not as “procuring” another person to engage in

such conduct. As the Fifth Circuit observed, “‘that violation’

refers only to illegal interception, disclosure, or use, and not to

procuring interception by another.” Pet. App. in No. 00-691, at

12a. “[T]Jhere is no mention” in the civil remedy provision of

liability for “procuring.” Jd.

The Fifth Circuit’s conclusion is plainly correct and does not

conflict with any decision by any other court identified by the

Peavys. The court of appeals faithfully applied the principles of

statutory construction established by this Court and gave

meaning to the 1986 congressional amendment. See Stone v.

INS, 514 U.S. 386, 397 (1995) (“When Congress acts to amend

a statute, we presume it intends its amendment to have real and

substantial effect.”’).

The Peavys’ criticism of the Fifth Circuit’s decision is

flawed. The Peavys contend that the phrase “that violation” in

§ 2520(a) refers not to the earlier part of the same sentence in

§ 2520(a) but instead to another section of the wiretap act

4

(§ 2511(1)(a-d)) located some nine statutory provisions away.

Cross-Pet. at 8. Plainly, there is no grammatical or logical basis

for the suggestion that the antecedent for the phrase “that

violation” is located in such a distant place in the statute.

The Peavys also contend, citing the legislative history of the

1986 amendment, that the Fifth Circuit’s decision does not

promote Congress’ intent. Cross-Pet. at 8-11. But the Peavys

cannot adduce any legislative history indicating that Congress

meant to retain a civil remedy for “procuring.” Moreover, it is

impermissible in this case to resort to legislative history to vary

the meaning of the statutory text because, “[g]iven the

straightforward statutory command, there is no reason to resort

to legislative history.” United States v. Gonzales, 520 U.S. 1, 6

(1997). In any event, the Fifth Circuit’s interpretation fully

effectuates the statutory purpose of the wiretap statute, as wellas

the portion of § 2511(1)(a) prohibiting “procuring,” because the

statutory ban on “procuring” interception by another person is

enforced through criminal proceedings rather than through

private civil remedies.

The court of appeals was thus correct in holding that there is

no federal private right of action for “procuring” an interception

under the federal wiretap act.

Il. THE FIFTH CIRCUIT PROPERLY DECLINED TO

REVIEW THE STATUTORY SUPPRESSION ISSUE.

The Fifth Circuit properly declined to rule on petitioners’

argument that 18 U.S.C..§ 2515 prohibits a defendant in a civil

lawsuit from introducing the contents of illegally intercepted

communications into evidence to defend against state-law claims

or to support affirmative defenses to liability under the federal

wiretap act. The Fifth Circuit held that, “{ijn light of our

disposition of the other issues” — such as the First Amendment

and scienter questions on which WFAA and Riggs have sought

certiorari — “we need not address this issue.” Pet. App. in No.

00-691, at 59a.

5

Even if the Fifth Circuit had reached the merits of the

Statutory suppression issue, it would have been justified in

rejecting the Peavys’ argument. Section 2515 does not apply in

the same proceeding in which a plaintiff is seeking to establish

a violation of the federal wiretap statute. Before a court can

decide whether there has been a violation of the wiretap statute,

it must consider the contents of an intercepted electronic

communication in order to determine whether the defendant has

“used” or “disclosed” the substance of that communication, and

whether the defendant may avail himself of any affirmative

defenses. It would put the cart before the horse to assume, at the

outset, that a violation of the wiretap statute has occurred. See

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

U.S.C.C.A.N. 2112, 2188 (“For example, such use and

disclosure would be necessary in the investigation and

prosecution of an illegal wiretapper himself.”’).

The need to consider the contents of a media defendant’s

expression is particularly acute in a case like this, where the

defendant did not broadcast any intercepted communications

verbatim but rather is alleged only to have divulged the contents

of the interception by means of other news reports. That is

precisely why WFAA and Riggs have urged that the prohibition

of 18 U.S.C. § 2511 is properly subject to strict scrutiny as a

content-based restriction on speech.

Indeed, application of Section 2515 in the manner proposed

by the Peavys would violate defendants’ right to be heard in their

own defense and would therefore infringe the right to due

_ process guaranteed under the Fifth Amendment. The Peavys

may not seek millions of dollars from WFAA and Riggs based

on the Harman tapes and then rely on Section 2515 to thwart

their ability to defend against these baseless charges. “Due

process requires that there be an opportunity to present every

available defense.” Lindsey v. Normet, 405 U.S. 56, 66 (1972)

(citation omitted).

6

Accordingly, the Peavys’ construction of Section 2515 has no

basis in statutory text or purpose, nor is it consistent with due

process. Every court to have considered the issue has concluded

that the statutory suppression rule does not prevent a court from

examining the intercepted communication in order to determine

whether there has been a violation of the federal wiretap statute.

The First Circuit held, in a decision endorsed by the Peavys (see

Cross-Pet. at 14-15), that the statute assumes “(1) that the

intercepted material will be presented to a court or jury for an

initial adjudication of whether it was acquired illegally; and (2)

that a court will thereafter determine whether other evidence was

derived from the intercepted evidence.” Williams v. Poulos, 11

F.3d 271, 289 (CA1 1993); see also Nix v. O'Malley, 160 F.3d

343, 351 (CA6 1998) (noting judicial recognition of “an implied

‘adjudication exception’ that permits disclosure of intercepted

material to a court for admissibility determinations and to a court

or jury for a resolution of illegality”); United States v. Underhill,

813 F.2d 105, 112 (CA6), cert. denied, 482 U.S. 906 (1987)

(ruling intercepted communications admissible because

suppression “would produce an absurd result that we are

confident Congress did not intend”); McQuade v. Michael

Gassner Mechanical & Elec. Contractors, Inc., 587 F. Supp.

1183, 1188, 1190-91 (D. Conn. 1984) (“Section 2515 was no

more designed to keep defendants in lawsuits brought under §

2520 from defending the alleged violations of § 2511 than it was

to keep the Government from prosecuting violators under

§ 2511"; “If the court were to accept the position urged by

plaintiffs * * * plaintiffs themselves would be seriously

hampered, if not completely foreclosed, from proving their case

at trial.”); United States v. Liddy, 354 F. Supp. 217, 220 (D.D.C.

1973), rev'd in part, No. 73-1020 (CADC Jan. 19, 1973)

(allowing admission of intercepted communications).

Moreover, numerous courts have allowed the disclosure and

use of the contents of illegally intercepted communications in

order to impeach testifying criminal defendants. See United

7

States v. Echavarria-Olarte, 904 F.2d 1391, 1397 (9th Cir.

1990); United States v. Vest, 813 F.2d 477, 484 (CA1 1987);

United States v. Winter, 663 F.2d 1120, 1154 (CA1 1981), cert.

denied, 460 U.S. 1011 (1983); United States v. Caron, 474 F.2d

506, 508 (CAS 1973). By analogy, evidence obtained in

violation of the Fourth Amendment can be used for the limited

purpose of attacking a testifying defendant’s credibility. See

United States v. Havens, 446 U.S. 620, 627 (1980); Walder v.

United States, 347 U.S. 62, 65 (1954).

The Peavys contend that the district court considered the

contents of the intercepted communications for purposes beyond

those contemplated by these established exceptions. Cross-Pet.

at 15. The record does not support that assertion. Rather, the

district court considered the contents of the tapes only in

deciding whether the tapes involved matters of public

significance, Pet. App. in No. 00-691, at 93a-94a—a holding that

the Peavys did not even challenge on appeal. Hence, the district

court’s denial of the motion to suppress had no impact on the

Peavys.

Contrary to the Peavys’ claim, the district court nowhere

indicated that it would consider the contents “to show that the

Peavys are such bad people that they don’t haverights worthy of

protection.” Cross-Pet. at 15. Nor did the district court consider

the contents of the communications as part of WFAA’s

affirmative defenses to the Peavys’ state-law claims. Rather, the

district court considered the contents only in the course of

deciding whether the Peavys had made out the elements of a

state-law claim of public disclosure of embarrassing private

facts. Under Texas law, it was the Peavys’ burden to

demonstrate that “the publicized information contains highly

intimate or embarrassing facts” and that “the publication of this

information would be highly objectionable to a reasonable

person.” Pet. App. in No. 00-691, at 103a. The Peavys can

hardly complain about this aspect of the district court’s decision,

which was triggered by a state common-law claim that the

8

Peavys themselves had decided to pursue. In any event, the

Peavys did not appeal the district court’s dismissal of their state

common-law claims, so those claims are no longer at issue in

this case.

Hence, even if the Fifth Circuit had reached the merits of the

statutory suppression issue, it would have been compelled to

affirm the district court’s judgment.’

’ Because the Fifth Circuit did not reach the question presented by the

Peavys, it did not decide the additional grounds offered by WFAA and Riggs

for affirming the district court’s denial of the Peavys’ motion to suppress:

Section 25 15 is not applicable against parties who lawfully receive a tape of

an intercepted communication, such as WFAA and Riggs. United States v.

Murdock, 63 F.3d 1391 (CA6 1995) (upon which the Government relied in

defeating Peavy’s motion to suppress in a criminal trial). In addition, Section

2515 is not applicable in this case because the radio frequencies mtercepted

by the Harman’s police scanner were electronic communications, 18 U.S.C.

§§ 2515, 2518(10)(a); Steve Jackson Games v. United States Secret Service,

36 F.3d 457, 461 (CAS 1994); because the Peavys failed to show that the

intercepted calls affected interstate or foreign commerce, as required by

§ 2510(1), (12); United States v. Burroughs, 564 F.2d 1111, 1113-14 (CA4

1977); and because many significant aspects of the Harman tapes have

become public knowledge as a result of Peav y’s public criminal proceedings.

These alternative grounds re main availab le to WFAA and Riggs asreasons for

affirming the district court’s denial of the motion to suppress.

9

CONCLUSION

The petition for certiorari in No. 00-691 should be granted.

WFAA and Riggs have no objection to this Court’s granting

review of the questions presented in the Cross- Petition, although

the Peavys’ legal arguments have no merit.

Respectfully submitted.

WILLIAM D. SIMS, JR. LAURENCE H. TRIBE

THOMAS S. LEATHERBURY Counsel of Record

MARIE R. YEATES JONATHAN S. MASSEY

MICHAEL L. RAIFF 420 Hauser Hall

STACEY H. Dor£ 1575 Massachusetts Ave.

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

2001 Ross Ave., Suite3700 (617) 495-4621

Dallas, TX 75201

(214) 220-7700

Counsel for Petitioners

February 9, 2001