Constitutional Law
Jun. 19, 2001
Difficult Tension
The case clearly holds that liability cannot be imposed on the media simply because others broke the law in obtaining information.
Erwin Chemerinsky
Dean and Jesse H. Choper Distinguished Professor of Law, UC Berkeley School of Law
Erwin's most recent book is "Worse Than Nothing: The Dangerous Fallacy of Originalism." He is also the author of "Closing the Courthouse," (Yale University Press 2017).
By Erwin Chemerinsky
Few issues in constitutional law are more difficult than the tension between freedom of speech and the right to privacy. Both speech and privacy are cherished, fundamental values. Yet, inescapably, they come into conflict, such as when the press publishes information that a person wishes to keep private.
In its recent decision in Bartnicki v. Vopper, 2001 WL 530714 (U.S. May 21, 2001), the Supreme Court considered whether the press could be held liable for broadcasting an illegally recorded conversation that contained material of public importance. Although the court's ruling in favor of the press was narrow, the case is important in further clarifying the law as to when the media can be held liable for publishing truthful information that offends privacy.
In the landmark case of New York Times v. Sullivan, 403 U.S. 713 (1964), the court held that the First Amendment limits the ability of courts to impose civil liability on the press. The court, in an opinion by Justice William Brennan, explained that civil liability can chill reporting every bit as much as criminal punishments. The court explained that even in a civil suit between private individuals, there is state action in that it is state law that allows recovery and a state entity, the court, that is imposing liability.
In Sullivan, the court held that the First Amendment limits defamation liability and, specifically, that public officials cannot recover for defamation unless they prove, with clear and convincing evidence, the falsity of the statement and actual malice by the defendant.
In other cases, the court has had occasion to consider First Amendment limits on suits for invasion of privacy. For example, in Cox Broadcasting Co. v. Cohn, 420 U.S. 469 (1975), the court held that a state could not create liability for disclosing a rape victim's identity where the name was gained from court records lawfully available to the public and the press.
Georgia law prohibited the disclosure of a rape victim's identity without her consent. A broadcast reporter obtained the name from court records that were publicly available. The name was broadcast. An action was brought against the reporter and the station. The Supreme Court held that liability violated the First Amendment because the name was lawfully obtained from government records and truthfully reported.
The court followed this decision in Florida Star v. B.J.F., 491 U.S. 524 (1989). Florida law also prohibited disclosing a rape victim's identity without her consent. In this case, a newspaper reporter obtained the name from police records that were lawfully available to the press. The victim's name was published in the newspaper.
The Supreme Court ruled that holding the press liable for invasion of privacy violated the First Amendment because the name had been lawfully obtained from government records and truthfully reported. The court said that liability could be imposed on the press in such circumstances only to serve "an interest of the highest order." The court found no such interest in protecting the rape victim's identity from disclosure.
The court followed this principle in other decisions. For example, in Smith v. Daily Mail Publishing Co., 443 U.S. 97 (1979), the court held that the media could not be held liable for publishing a juvenile defendant's name where the information was lawfully obtained and truthfully reported. The court declared: "[I]f a newspaper lawfully obtains truthful information about a matter of public significance, then state officials may not constitutionally punish publication of the information, absent a need to further a state interest of the highest order."
Similarly, in Landmark Communications Inc. v. Virginia, 435 U.S. 829 (1978), the court held that the press could not be held liable for publishing confidential information from a state judicial performance commission because it was lawfully obtained by the press and truthfully reported.
These cases might be read broadly as favoring freedom of the press over privacy interests. But they also might be understood much more narrowly as about protecting the press when it reports the content of government records that were lawfully obtained.
There is an important public interest in protecting the press when it is reporting on the conduct of government and the content of government proceedings. Before Bartnicki, the court had not considered liability of the press when the information was gained from nongovernment sources or when the information was illegally obtained.
Gloria Bartnicki worked for the Pennsylvania Education Association and assisted local teachers' unions in their collective-bargaining activity. In 1992 and 1993, Bartnicki was working with the teachers in the Wyoming Valley West High School in their negotiations with the local school board. Bartnicki was serving as the chief negotiator for the teachers and, in May 1993, had a conversation with Anthony Kane Jr., the president of the local union. Bartnicki was on her cellular phone, while Kane was speaking from his "land line" at home. Unknown to them, the conversation was illegally intercepted and recorded.
In the conversation, Bartnicki and Kane discussed their negotiation strategies. It was clear that they thought that their conversation was private and confidential. At one point, Bartnicki gave Kane her unlisted phone number. During the conversation, Kane said that if the school board did not agree to a 3 percent raise, "we're going to have to go to their homes to blow off their front porches."
A tape of the conversation was given to a local radio talk-show host, Frederick Vopper. Later it was learned that Vopper obtained it from Jack Yocum, the head of a local taxpayers' organization that opposed the union's demands. Yocum testified that he found the tape in his mailbox but did not know who made it. Vopper played the tape at least twice on his radio show. Bartnicki and Kane sued Vopper and other individuals and media representatives under federal and state law for compensatory damages, statutory damages, punitive damages and attorney fees and costs.
The question in the case is whether it violates the First Amendment to hold the media liable under these circumstances. As Justice John Paul Stevens noted in the introduction to his majority opinion, "Despite the fact that federal law has prohibited such disclosures since 1934, this is the first time we have confronted such an issue."
In ruling on the issue, the court said that it was assuming that the interception was intentional and illegal, that the defendants had reason to know that it was illegally intercepted, and that disclosure of the contents of the communication violated state and federal law.
Nonetheless, the Supreme Court held that the First Amendment precluded liability for the press under these circumstances. The court said that the First Amendment provides protection where, as here, the information is of public importance. "We need not decide here whether the interest is strong enough to justify [allowing liability for] disclosures of trade secrets or domestic gossip or other information of purely private concern ... . [Liability] in this case, however, implicates the core purposes of the First Amendment because it imposes sanctions on the publication of truthful information of public concern."
In fact, Justice Stephen Breyer wrote a concurring opinion, joined by Justice Sandra Day O'Connor, that stressed the "narrow" holding of the majority. Breyer said that the case establishes First Amendment protection only where the media did nothing unlawful and where the information is of "unusual public concern, namely a threat of potential physical harm to others." [The threat in this case was Kane's statement that if the school board did not agree to a 3 percent raise, "we're going to have to go to their homes to blow off their front porches."]
Breyer, like Chief Justice William Rehnquist's dissent (joined by Justices Antonin Scalia and Clarence Thomas), stressed that protecting privacy of communications encourages speech that might otherwise be chilled. Breyer concluded his concurring opinion by stating: "[W]e should avoid adopting overly broad or rigid constitutional rules, which would unnecessarily restrict legislative flexibility. I consequently agree with the Court's holding that the statutes as applied here violate the Constitution, but I would not extend that holding beyond these present circumstances."
Although the Stevens majority opinion, and especially Breyer's concurrence, emphasized the narrowness of the decision, Bartnicki is an important victory for the press. For the first time, the court has held that the media cannot be held liable when it reports matters of public concern, even when the information was illegally obtained by others. The case clearly holds that liability cannot be imposed on the media simply because others broke the law in obtaining information.
The case leaves open many questions: What constitutes matters of "public importance"? Does the First Amendment provide protection if the press violates the law in obtaining the information? While these issues are left for future cases, Bartnicki establishes the important proposition that the media cannot be held liable if it accurately reports information of pubic importance, even when the information was illegally obtained by others.
Erwin Chemerinsky is Sydney M. Irmas Professor of Public Interest Law, Legal Ethics, and Political Science at the University of Southern California Law School.
Few issues in constitutional law are more difficult than the tension between freedom of speech and the right to privacy. Both speech and privacy are cherished, fundamental values. Yet, inescapably, they come into conflict, such as when the press publishes information that a person wishes to keep private.
In its recent decision in Bartnicki v. Vopper, 2001 WL 530714 (U.S. May 21, 2001), the Supreme Court considered whether the press could be held liable for broadcasting an illegally recorded conversation that contained material of public importance. Although the court's ruling in favor of the press was narrow, the case is important in further clarifying the law as to when the media can be held liable for publishing truthful information that offends privacy.
In the landmark case of New York Times v. Sullivan, 403 U.S. 713 (1964), the court held that the First Amendment limits the ability of courts to impose civil liability on the press. The court, in an opinion by Justice William Brennan, explained that civil liability can chill reporting every bit as much as criminal punishments. The court explained that even in a civil suit between private individuals, there is state action in that it is state law that allows recovery and a state entity, the court, that is imposing liability.
In Sullivan, the court held that the First Amendment limits defamation liability and, specifically, that public officials cannot recover for defamation unless they prove, with clear and convincing evidence, the falsity of the statement and actual malice by the defendant.
In other cases, the court has had occasion to consider First Amendment limits on suits for invasion of privacy. For example, in Cox Broadcasting Co. v. Cohn, 420 U.S. 469 (1975), the court held that a state could not create liability for disclosing a rape victim's identity where the name was gained from court records lawfully available to the public and the press.
Georgia law prohibited the disclosure of a rape victim's identity without her consent. A broadcast reporter obtained the name from court records that were publicly available. The name was broadcast. An action was brought against the reporter and the station. The Supreme Court held that liability violated the First Amendment because the name was lawfully obtained from government records and truthfully reported.
The court followed this decision in Florida Star v. B.J.F., 491 U.S. 524 (1989). Florida law also prohibited disclosing a rape victim's identity without her consent. In this case, a newspaper reporter obtained the name from police records that were lawfully available to the press. The victim's name was published in the newspaper.
The Supreme Court ruled that holding the press liable for invasion of privacy violated the First Amendment because the name had been lawfully obtained from government records and truthfully reported. The court said that liability could be imposed on the press in such circumstances only to serve "an interest of the highest order." The court found no such interest in protecting the rape victim's identity from disclosure.
The court followed this principle in other decisions. For example, in Smith v. Daily Mail Publishing Co., 443 U.S. 97 (1979), the court held that the media could not be held liable for publishing a juvenile defendant's name where the information was lawfully obtained and truthfully reported. The court declared: "[I]f a newspaper lawfully obtains truthful information about a matter of public significance, then state officials may not constitutionally punish publication of the information, absent a need to further a state interest of the highest order."
Similarly, in Landmark Communications Inc. v. Virginia, 435 U.S. 829 (1978), the court held that the press could not be held liable for publishing confidential information from a state judicial performance commission because it was lawfully obtained by the press and truthfully reported.
These cases might be read broadly as favoring freedom of the press over privacy interests. But they also might be understood much more narrowly as about protecting the press when it reports the content of government records that were lawfully obtained.
There is an important public interest in protecting the press when it is reporting on the conduct of government and the content of government proceedings. Before Bartnicki, the court had not considered liability of the press when the information was gained from nongovernment sources or when the information was illegally obtained.
Gloria Bartnicki worked for the Pennsylvania Education Association and assisted local teachers' unions in their collective-bargaining activity. In 1992 and 1993, Bartnicki was working with the teachers in the Wyoming Valley West High School in their negotiations with the local school board. Bartnicki was serving as the chief negotiator for the teachers and, in May 1993, had a conversation with Anthony Kane Jr., the president of the local union. Bartnicki was on her cellular phone, while Kane was speaking from his "land line" at home. Unknown to them, the conversation was illegally intercepted and recorded.
In the conversation, Bartnicki and Kane discussed their negotiation strategies. It was clear that they thought that their conversation was private and confidential. At one point, Bartnicki gave Kane her unlisted phone number. During the conversation, Kane said that if the school board did not agree to a 3 percent raise, "we're going to have to go to their homes to blow off their front porches."
A tape of the conversation was given to a local radio talk-show host, Frederick Vopper. Later it was learned that Vopper obtained it from Jack Yocum, the head of a local taxpayers' organization that opposed the union's demands. Yocum testified that he found the tape in his mailbox but did not know who made it. Vopper played the tape at least twice on his radio show. Bartnicki and Kane sued Vopper and other individuals and media representatives under federal and state law for compensatory damages, statutory damages, punitive damages and attorney fees and costs.
The question in the case is whether it violates the First Amendment to hold the media liable under these circumstances. As Justice John Paul Stevens noted in the introduction to his majority opinion, "Despite the fact that federal law has prohibited such disclosures since 1934, this is the first time we have confronted such an issue."
In ruling on the issue, the court said that it was assuming that the interception was intentional and illegal, that the defendants had reason to know that it was illegally intercepted, and that disclosure of the contents of the communication violated state and federal law.
Nonetheless, the Supreme Court held that the First Amendment precluded liability for the press under these circumstances. The court said that the First Amendment provides protection where, as here, the information is of public importance. "We need not decide here whether the interest is strong enough to justify [allowing liability for] disclosures of trade secrets or domestic gossip or other information of purely private concern ... . [Liability] in this case, however, implicates the core purposes of the First Amendment because it imposes sanctions on the publication of truthful information of public concern."
In fact, Justice Stephen Breyer wrote a concurring opinion, joined by Justice Sandra Day O'Connor, that stressed the "narrow" holding of the majority. Breyer said that the case establishes First Amendment protection only where the media did nothing unlawful and where the information is of "unusual public concern, namely a threat of potential physical harm to others." [The threat in this case was Kane's statement that if the school board did not agree to a 3 percent raise, "we're going to have to go to their homes to blow off their front porches."]
Breyer, like Chief Justice William Rehnquist's dissent (joined by Justices Antonin Scalia and Clarence Thomas), stressed that protecting privacy of communications encourages speech that might otherwise be chilled. Breyer concluded his concurring opinion by stating: "[W]e should avoid adopting overly broad or rigid constitutional rules, which would unnecessarily restrict legislative flexibility. I consequently agree with the Court's holding that the statutes as applied here violate the Constitution, but I would not extend that holding beyond these present circumstances."
Although the Stevens majority opinion, and especially Breyer's concurrence, emphasized the narrowness of the decision, Bartnicki is an important victory for the press. For the first time, the court has held that the media cannot be held liable when it reports matters of public concern, even when the information was illegally obtained by others. The case clearly holds that liability cannot be imposed on the media simply because others broke the law in obtaining information.
The case leaves open many questions: What constitutes matters of "public importance"? Does the First Amendment provide protection if the press violates the law in obtaining the information? While these issues are left for future cases, Bartnicki establishes the important proposition that the media cannot be held liable if it accurately reports information of pubic importance, even when the information was illegally obtained by others.
Erwin Chemerinsky is Sydney M. Irmas Professor of Public Interest Law, Legal Ethics, and Political Science at the University of Southern California Law School.
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