“Regulating Reporters’ Revelations”

Here it is. Please call me with any necessary corrections. Thanks. It's going in monday.

Los Angeles Daily Journal, June 11, 2001, at 6

by Eugene Volokh

“If [management] is not gonna [do what we want], we’re gonna have to go to their, their homes ... to blow off their front porches, we’ll have to do some work on some of those guys.” So said teachers’ union official Anthony Kane to Gloria Bartnicki, another union official, in a cellular phone conversation. Unluckily for Kane, some unknown person illegally intercepted this call.

Frederick Vopper, a Wilkes-Barre, Penn., radio talk show host who goes by the name Fred Williams, was given this tape, and he naturally decided to play it on the air. Vopper must have suspected that the conversation was illegally intercepted, and federal law bans publishing or even using illegally intercepted conversations, even if the publisher had nothing to do with the illegal eavesdropping. But Vopper played the tape despite that. It was obviously important news.

Last month, tThe U.S. Supreme Court held, in Bartnicki v. Vopper, that Vopper acted within his First Amendment rights. The illegal eavesdropper could be punished, if you could catch him. But Vopper couldn’t be held civilly or criminally liable for his conduct. Did the court get it right?

The government defended the law on three main grounds. First, it argued, banning the publication of illegally obtained information deters illegal interception in the first place. If people knew that they could anonymously intercept a call and anonymously route it to a journalist, and the journalist could then legally publish the contents, then they’d have an incentive to eavesdrop on their enemies.

Second, the government argued, publication of an overheard conversation is an invasion of privacy. Third, and relatedly, the government argued that the federal ban itself promoted free speech; it encouraged people to speak without inhibition to each other, rather than keeping quiet for fear of being taped.

Justice John P. Stevens’ majority opinion rejected the first argument out of hand: Looking at the past cases decided under this law, the majority reasoned that very few of them involved a truly unknown interceptor. In all the rest, the illegal eavesdropper could have been prosecuted himself.

But Chief Justice William H. Rehnquist’s dissent had, I think, the better argument. The majority’s sample was small, comprising containing only about 60 relevant cases. Ten to 20 percent of those cases did involve unknown eavesdroppers. And, more importantly, the cases involved only situations where the deterrent power of the law failed; the majority says the cases tell us little about how often the law has indeed successfully deterred eavesdroppers.

The court’s decision, like free speech protection generally, is not cost-free. It will indeed lead to more illegal interception.

The dissent and Justice Stephen Breyer’s concurrence, however, also erred by accepting the argument that the ban on interception fosters free speech, and thus requires a sort of balance between constitutional rights on both sides. This sort of “constitutional tension” argument sounds appealing at first, but it can’t be right.

The First Amendment constrains the government; it restricts the government’s power to suppress speech. It doesn’t grant the government power to suppress speech in order to encourage other speech.

Consider, for instance, an analogous scenario. Activists urge that readers boycott a newspaper until it fires a supposedly offensive columnist. May the government suppress the activists’ boycott call in order to promote free speech by the columnist? The answer must be no. Under the First Amendment, the government may neither silence the columnist, nor silence the boycotters to foster the columnist’s speech.

Moreover, this notion that free speech can be suppressed in order to further “constitutional values,” if true accepted, would apply in a wide variety of cases, with constitutionally impermissible results. People already argue that sSupposedly racist or sexist speech cshould be suppressed to further the constitutional value of equality. Past Justices have likewise argued that aAntiwar speech could be suppressed to further the constitutionally secured war power.

The same arguments have been made about antidemocratic speech, such as Communist advocacy;, anti-states’-rights speech;, antireligious speech, and more. If constitutional rights could be trumped by constitutional values, our rights would be dramatically cut back, because the Constitution embodies so many values.

Ultimately, the majority was right for two reasons. First, tThe court has long stressed that even when the government restricts speech for good reasons and in content-neutral ways, it must leave open ample alternative channels for the speech. The law may regulate the time, place or manner of speech— as in for instance, banning residential picketing or regulating the volume of sound amplification—but only because the speakers can still communicate their messages in lots of other ways.

In Bartnicki, however, the federal law completely excluded this important information from the public debate (unless reporters could have somehow persuaded Kane to repeat himself on the record, which he surely wouldn’t have done).

Second, cConsider the dangerous implications of holding that the media may not publish information that was illegally taped by others. This is only a short step from This outcome is closely akin to holding that the media may not publish information that was illegally leaked by a corporate employee who copied a smoking gun document in violation of a nondisclosure agreement, or a government employee who released something in violation of government secrecy laws.

The analogy is quite close. After all, many of the same arguments that have been made in favor of criminalizing the publication of illegally intercepted material would also justify criminalizing the publication of leaked material. Such a lLeaks, after all, also jeopardizes privacy, and the possibility of such leaks often keeps people from speaking freely to coworkers.

Although banning publication of leaked material would help deter illegal leaking, such a policy would also have undesirable consequences. If publishing illegally intercepted information is outlawed on the theory that it’s like selling stolen goods, then publishing illegally leaked information can be outlawed because it’s like selling embezzled goods.Banning publication of leaked material would help deter illegal leaking. And if publishing illegally intercepted information is outlawed on the theory that it’s like selling stolen goods, then publishing illegally leaked information can be outlawed because it’s like selling embezzled goods.

This sort ofA ban on publishing illegally leaked material would dramatically undermine public debate about alleged misdeeds by the government, corporate officials, union leaders, or criminals more generally. It’s would have been a short and dangerous slide from the Bartnicki law statute to this potential no-publication-of-leaks law, a. And in a legal system like ours, which is built on precedent and analogy, the slippery slope is a serious concern. Bartnicki was right to keep us off this slope..

Let there be no mistake about it. Because of Bartnicki, there will be somewhat more criminal eavesdropping and somewhat more invasions of privacy. But the alternative was to let the government suppress speech that’s often vital to public debate, a cure that would have been worse than the disease.