Summary of Bartniki v. Vopper
Citation: 532 U.S. 514 (2001)
Relevant Facts: Petitioner Bartniki served as chief negotiator on behalf of a Pennsylvania school teachers’ union during contentious collective bargaining discussions. During the time that negotiations were ongoing, Bartniki phoned local union President Kane to discuss their progress. Bartniki later discovered that his phone call to Kane had been surreptitiously intercepted and recorded. Respondent Vopper, a local radio commentator, replayed the taped phone conversation on his radio program. Other local media outlets also replayed or reproduced the contents of the intercepted phone call. Bartniki and Kane brought suit, alleging violations of state and federal law in the illegal recording of their phone conversation. They contended that the media defendants knew or should have known that the call was illegally recorded, and in replaying an illegally recorded phone call had themselves violated both the law and Petitioners’ rights. Discovery revealed that the tape had been delivered to Vopper by the head of a local taxpayers’ association opposed to union demands in the negotiations (Yocum), although Yocum denied knowledge of or complicity in recording the phone call. At trial, both parties moved for summary judgment, with the Defendants’ claiming that the First Amendment should serve as a bar to recovery. The trial court denied both motions, ruling that replay of an illegally recorded tape can subject a media defendant to liability notwithstanding the First Amendment, but determining that a genuine issue of material fact existed as to whether the recording was intentional. On interlocutory appeal, the Third Circuit held that the statutes at issued were unconstitutional under the First Amendment as they prohibited more speech than was necessary to protect the privacy interests at stake. The Supreme Court granted certiorari.
Issue: Does the First Amendment bar suit for money damages against members of the press for replaying or reproducing the contents of an illegally intercepted phone call where they were not personally involved in the illegal interception?
Holding: Yes, while Respondents did violate the statute at issue, prohibiting reproduction of content that was illegally procured by subsequently comes into the lawful possession of the third party restricts significantly more speech than necessary to protect privacy and deter illegal interceptions. Furthermore, when publishing content of public concern, members of the press are free to publish truthful information notwithstanding the misconduct of another in obtaining the information.
Reasoning: Justice Stevens delivered the opinion of the Court. First, the majority explained the relevant federal law, which prohibited not only the illegal interception of phone calls but subsequent disclosure of the content of such an illegal recording. Next, Justice Stevens explained the assumptions required at the current procedural posture of the case. The Court accepted that the interception was unlawful and that the Respondents knew or should have known it, and also accepted Respondents explanation that they played no part in the interception. As to the First Amendment claims, the majority explained that the Court had previously upheld the right of members of the media to publish truthful information even where the source of the information had originally been stolen. There as here, the issue was whether a third party that has lawfully come into possession of unlawfully procured information may reproduce the contents free from liability. First, the Court explained the negligible deterrent value that would follow punishing Respondents conduct. The majority concluded that punishing those who actually obtain information in violation of the law is sufficient to deter future misconduct. Next, in a closer question, the Court considered the privacy interests of those whose conversations have been illegally recorded. While the majority was sympathetic, they determined that the public interest in disclosure of information of public importance was more valuable than the privacy interests of individuals who had voluntarily undertaken participation in matters of public concern. In participation in matters of public concern, Petitioners had accepted a lesser degree of privacy and opened themselves up to criticism or conduct. Furthermore, the important First Amendment issues at stake required protection of commentary on the issues regardless of illegal conduct by a stranger to the underlying litigation.
Concurrence: Justice Breyer, joined by Justice O’Conner, concurred. In his opinion, the majority’s holding was a narrow one, limited to the specific circumstances here where the content of the intercepted call indicated that the Petitioners may threaten violence to accomplish their objectives. In Justice Breyer’s view, the holding here should not be construed to create general media immunity for reproducing illegally intercepted content.
Dissent: Chief Justice Rehnquist dissented, joined by Justices Scalia and Thomas. In his opinion, the majority created an unusual exception to an otherwise applicable law based on “public importance," a term the dissenters pointed out was poorly defined by the majority. Furthermore, Chief Justice Rehnquist argued that the First Amendment concerns at stake militated in favor of subjected the Respondents to liability here. While he agreed with the majority that liability under the circumstances would inhibit commentary on matters of interest the public, he was more concerned with the effect on the original speech at issue with individuals afraid that at any moment their conversations may be recorded and replayed. The dissenters argued that protecting free and open debate required punishment for illegally obtaining or replaying phone conversations; otherwise, the threat to the underlying speech at issue would be greater than that of the republication issues cited by the majority.
Conclusion: Members of the media under the circumstances presented here are not subject to liability for replaying or reproducing the contents of an illegally obtained phone conversation recording. The majority’s holding was limited to circumstances where the content of the intercepted call touched on matters of public concern and where the members of the press were blameless in the underlying illegal conduct.