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

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386014_1398%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2001
- **Citation:** 532 U.S. 1051

## Text

~~ 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

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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

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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

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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.

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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386014_1398%3A2. Public record. Not legal advice.