OCTOBER TERM, 2000
Syllabus
BARTNICKI ET AL.
v. VOPPER, AKA WILLIAMS, ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD
CIRCUIT
No. 99-1687. Argued December 5, 2000-Decided May 21, 2001*
During contentious collective-bargaining negotiations between a
union representing teachers at a Pennsylvania high school and the
local school board, an unidentified person intercepted and recorded
a cell phone conversation between the chief union negotiator and
the union president (hereinafter petitioners). After the parties
accepted a nonbinding arbitration proposal generally favorable to
the teachers, respondent Vopper, a radio commentator, played a tape
of the intercepted conversation on his public affairs talk show in
connection with news reports about the settlement. Petitioners
filed this damages suit under both federal and state wiretapping
laws, alleging, among other things, that their conversation had
been surreptitiously intercepted by an unknown person; that
respondent Yocum, the head of a local organization opposed to the
union's demands, had obtained the tape and intentionally disclosed
it to,
inter alios, media representatives; and that they had
repeatedly published the conversation even though they knew or had
reason to know that it had been illegally intercepted. In ruling on
cross-motions for summary judgment, the District Court concluded
that, under the statutory language, an individual violates the
federal Act by intentionally disclosing the contents of an
electronic communication when he or she knows or has reason to know
that the information was obtained through an illegal interception,
even if the individual was not involved in that interception; found
that the question whether the interception was intentional raised a
genuine issue of material fact; and rejected respondents' defense
that they were protected by the First Amendment even if the
disclosures violated the statutes, finding that the statutes were
content-neutral laws of general applicability containing no indicia
of prior restraint or the chilling of free speech. The Third
Circuit accepted an interlocutory appeal, and the United States,
also a petitioner, intervened to defend the federal Act's
constitutionality. Applying intermediate scrutiny, the court found
the statutes invalid because they deterred significantly more
speech than necessary to protect the private
*Together with No. 99-1728,
United States v.
Vopper,
aka Williams, et al., also on certiorari to the same court.
515
interests at stake, and remanded the case with instructions to
enter summary judgment for respondents.
Held: The First Amendment protects the disclosures made
by respondents in this suit. Pp. 522-535.
(a) Title III of the Omnibus Crime Control and Safe Streets Act
of 1968, as amended, generally prohibits the interception of wire,
electronic, and oral communications. Title 18 U. S. C. § 2511(I)(a)
applies to the person who willfully intercepts such communications
and subsection (c) to any person who, knowing or having reason to
know that the communication was obtained through an illegal
interception, willfully discloses its contents. Pp. 522-524.
(b) Because of this suit's procedural posture, the Court accepts
that the interception was unlawful and that respondents had reason
to know that. Accordingly, the disclosures violated the statutes.
In answering the remaining question whether the statutes'
application in such circumstances violates the First Amendment, the
Court accepts respondents' submissions that they played no part in
the illegal interception, that their access to the information was
obtained lawfully, and that the conversations dealt with a matter
of public concern. Pp. 524-525.
(c) Section 2511(I)(c) is a content-neutral law of general
applicability.
The statute's purpose is to protect the privacy of wire,
electronic, and oral communications, and it singles out such
communications by virtue of the fact that they were illegally
intercepted-by virtue of the source rather than the subject matter.
Cf.
Ward v.
Rock Against Racism, 491 U. S. 781, 791.
On the other hand, the prohibition against disclosures is fairly
characterized as a regulation of speech. Pp. 526-527.
(d) In
New York Times Co. v.
United States,
403 U. S. 713,
this Court upheld the press' right to publish information of great
public concern obtained from documents stolen by a third party. In
so doing, this Court focused on the stolen documents' character and
the consequences of public disclosure, not on the fact that the
documents were stolen.
Ibid. It also left open the question
whether, in cases where information has been acquired unlawfully by
a newspaper or by a source, government may punish not only the
unlawful acquisition, but also the ensuing publication.
Florida
Star v.
B. J. F.,
491 U. S. 524, 535, n. 8.
The issue here is a narrower version of that question: Where the
publisher has lawfully obtained information from a source who
obtained it unlawfully, may the government punish the ensuing
publication based on the defect in a chain? The Court's refusal to
construe the issue more broadly is consistent with its repeated
refusal to answer categorically whether the publication of truthful
information may ever be punished consistent with the First
Amendment. Accordingly, the Court considers whether,
516
Syllabus
given the facts here, the interests served by § 2511(1)(c)
justify its restrictions on speech. Pp. 527-529.
(e) The first interest identified by the Government-removing an
incentive for parties to intercept private conversations-does not
justify applying § 2511(1)(c) to an otherwise innocent disclosure
of public information. The normal method of deterring unlawful
conduct is to punish the person engaging in it. It would be
remarkable to hold that speech by a law-abiding possessor of
information can be suppressed in order to deter conduct by a
non-law-abiding third party. In virtually all § 2511(1)(a), (c), or
(d) violations, the interceptor's identity has been known. There is
no evidence that Congress thought that the prohibition against
disclosures would deter illegal interceptions, and no evidence to
support the assumption that the prohibition reduces the number of
such interceptions. pp. 529-532.
(f) The Government's second interest-minimizing the harm to
persons whose conversations have been illegally intercepted-is
considerably stronger. Privacy of communication is an important
interest. However, in this suit, privacy concerns give way when
balanced against the interest in publishing matters of public
importance. One of the costs associated with participation in
public affairs is an attendant loss of privacy. The profound
national commitment to the principle that debate on public issues
should be uninhibited, robust, and wide open supported this Court's
holding in
New York Times Co. v.
Sullivan, 376 U. S.
254, that neither factual error nor defamatory content, nor a
combination of the two, sufficed to remove the First Amendment
shield from criticism of official conduct. Parallel reasoning
requires the conclusion that a stranger's illegal conduct does not
suffice to remove the First Amendment shield from speech about a
matter of public concern. Pp. 532-535.
200 F.3d
109, affirmed.
STEVENS, J., delivered the opinion of the Court, in which
O'CONNOR, KENNEDY, SOUTER, GINSBURG, and BREYER, JJ., joined.
BREYER, J., filed a concurring opinion, in which O'CONNOR, J.,
joined,
post, p. 535. REHNQUIST, C. J., filed a dissenting
opinion, in which SCALIA and THOMAS, JJ., joined,
post, p.
541.
Jeremiah A. Collins argued the cause for petitioners in
No. 99-1687. With him on the briefs were
Raymond P.
Wendolowski and
Scott C.
Gartley.
Solicitor General Waxman argued the cause for the United
States in No. 99-1728. With him on the briefs were
517
Assistant Attorney General Ogden, Deputy Solicitor General
Dreeben, Jeffrey A. Lamken, and Douglas N. Letter.
Lee Levine argued the cause for respondents Vopper et
al.
With him on the brief was
Jay Ward Brown. Thomas C.
Goldstein argued the cause for respondent Yokum. With him on
the brief were
Erik S.
Jaffe and
Frank J.
Aritz. *
JUSTICE STEVENS delivered the opinion of the Court. These cases
raise an important question concerning what degree of protection,
if any, the First Amendment provides to speech that discloses the
contents of an illegally intercepted communication. That question
is both novel and narrow. Despite the fact that federal law has
prohibited such disclosures since 1934,1 this is the first time
that we have confronted such an issue.
The suit at hand involves the repeated intentional disclosure of
an illegally intercepted cellular telephone conversation about a
public issue. The persons who made the disclosures did not
participate in the interception, but they did know-or at least had
reason to know-that the inter-
*Briefs of
amici curiae urging reversal were filed for
the Cellular Telecommunications Industry Association by
Howard J.
Symons and
Michael F.
Altschul; and for Representative John A. Boehner by
Michael A. Carvin and
David H. Thompson.
Briefs of amici curiae urging affirmance were filed for the
American Civil Liberties Union et al. by Steven Shapiro; for Dow
Jones & Co., Inc., by Theodore B. Olson, Theodore J. Boutrous,
Jr., and Jack M. Weiss; for the Liberty Project by Nory Miller and
Julia M. Carpenter; for Media Entities and Organizations by Floyd
Abrams, George Freeman, Adam Liptak, Richard A. Bernstein, Jerry S.
Birenz, Henry S. Hoberman, David A. Schulz, Eve Burton, Susanna M.
Lowy, Harold W Fuson, Jr., Barbara W Wall, Anne Noble, Kenneth
Vittor, Rene P. Milam, Lucy Dalglish, Bruce W Sanford, and Eric
Lieberman; for WFAA-TV et al. by Laurence H. Tribe, Jonathan S.
Massey, William D. Sims, Jr., Thomas S. Leatherbury, and Marie R.
Yeates; and for Representative James A. McDermott by Frank Cicero,
Jr., Christopher Landau, and Daryl Joseffer.
1 See 48 Stat. 1069, 1103.
518
ception was unlawful. Accordingly, these cases present a
conflict between interests of the highest order-on the one hand,
the interest in the full and free dissemination of information
concerning public issues, and, on the other hand, the interest in
individual privacy and, more specifically, in fostering private
speech. The Framers of the First Amendment surely did not foresee
the advances in science that produced the conversation, the
interception, or the conflict that gave rise to this action. It is
therefore not surprising that Circuit judges, as well as the
Members of this Court, have come to differing conclusions about the
First Amendment's application to this issue. Nevertheless, having
considered the interests at stake, we are firmly convinced that the
disclosures made by respondents in this suit are protected by the
First Amendment.
I
During 1992 and most of 1993, the Pennsylvania State Education
Association, a union representing the teachers at the Wyoming
Valley West High School, engaged in collectivebargaining
negotiations with the school board. Petitioner Kane, then the
president of the local union, testified that the negotiations were"
'contentious'" and received "a lot of media attention." App. 79,
92. In May 1993, petitioner Bartnicki, who was acting as the
union's "chief negotiator," used the cellular phone in her car to
call Kane and engage in a lengthy conversation about the status of
the negotiations. An unidentified person intercepted and recorded
that call.
In their conversation, Kane and Bartnicki discussed the timing
of a proposed strike, id., at 41-45, difficulties created by public
comment on the negotiations, id., at 46, and the need for a
dramatic response to the board's intransigence. At one point, Kane
said: "'If they're not gonna move for three percent, we're gonna
have to go to their, their
519
homes .... To blow off their front porches, we'll have to do
some work on some of those guys. (PAUSES). Really, uh, really and
truthfully because this is, you know, this is bad news.
(UNDECIPHERABLE).'"
Ibid.
In the early fall of 1993, the parties accepted a nonbinding
arbitration proposal that was generally favorable to the teachers.
In connection with news reports about the settlement, respondent
Vopper, a radio commentator who had been critical of the union in
the past, played a tape of the intercepted conversation on his
public affairs talk show. Another station also broadcast the tape,
and local newspapers published its contents. After filing suit
against Vopper and other representatives of the media, Bartnicki
and Kane (hereinafter petitioners) learned through discovery that
Vopper had obtained the tape from respondent Jack Yocum, the head
of a local taxpayers' organization that had opposed the union's
demands throughout the negotiations. Yocum, who was added as a
defendant, testified that he had found the tape in his mailbox
shortly after the interception and recognized the voices of
Bartnicki and Kane. Yocum played the tape for some members of the
school board, and later delivered the tape itself to Vopper.
II
In their amended complaint, petitioners alleged that their
telephone conversation had been surreptitiously intercepted by an
unknown person using an electronic device, that Yocum had obtained
a tape of that conversation, and that he intentionally disclosed it
to Vopper, as well as other individuals and media representatives.
Thereafter, Vopper and other members of the media repeatedly
published the contents of that conversation. The amended complaint
alleged that each of the defendants "knew or had reason to know"
that the recording of the private telephone conversation had been
obtained by means of an illegal interception.
Id.,
520
at 27. Relying on both federal and Pennsylvania statutory
provisions, petitioners sought actual damages, statutory damages,
punitive damages, and attorney's fees and costs.2
After the parties completed their discovery, they filed
cross-motions for summary judgment. Respondents contended that they
had not violated the statute because (a) they had nothing to do
with the interception, and (b) in any event, their actions were not
unlawful since the conversation might have been intercepted
inadvertently. Moreover, even if they had violated the statute by
disclosing the intercepted conversation, respondents argued, those
disclosures were protected by the First Amendment. The District
Court rejected the first statutory argument because, under the
plain statutory language, an individual violates the federal Act by
intentionally disclosing the contents of an electronic
communication when he or she "know[s] or ha[s] reason to know that
the information was obtained" through an illegal interception.3
App. to Pet. for Cert. in No. 991687, pp. 53a-54a (emphasis
deleted). Accordingly, actual involvement in the illegal
interception is not necessary in order to establish a violation of
that statute. With respect to the second statutory argument, the
District Court agreed that petitioners had to prove that the
interception in ques-
2 Either actual damages or "statutory damages of whichever is
the greater of $100 a day for each day of violation or $10,000" may
be recovered under 18 U. S. C. § 2520(c)(2); under the Pennsylvania
Act, the amount is the greater of $100 a day or $1,000, but the
plaintiff may also recover punitive damages and reasonable
attorney's fees. 18 Pa. Cons. Stat. § 5725(a) (2000).
3 Title 18 U. S. C. § 2511(I)(c) provides that any person who
"intentionally discloses, or endeavors to disclose, to any other
person the contents of any wire, oral, or electronic communication,
knowing or having reason to know that the information was obtained
through the interception of a wire, oral, or electronic
communication in violation of this subsection; ... shall be
punished .... " The Pennsylvania Act contains a similar
provision.
521
tion was intentionaI,4 but concluded that the text of the
interception raised a genuine issue of material fact with respect
to intent. That issue of fact was also the basis for the District
Court's denial of petitioners' motion. Finally, the District Court
rejected respondents' First Amendment defense because the statutes
were content-neutral laws of general applicability that contained
"no indicia of prior restraint or the chilling of free speech."
Id., at 55a-56a.
Thereafter, the District Court granted a motion for an
interlocutory appeal, pursuant to 28 U. S. C. § 1292(b). It
certified as controlling questions of law: "(1) whether the
imposition of liability on the media Defendants under the
[wiretapping statutes] solely for broadcasting the newsworthy tape
on the Defendant [Vopper's] radio news/public affairs program, when
the tape was illegally intercepted and recorded by unknown persons
who were not agents of [the] Defendants, violates the First
Amendment; and (2) whether imposition of liability under the
aforesaid [wiretapping] statutes on Defendant Jack Yocum solely for
providing the anonymously intercepted and recorded tape to the
media Defendants violates the First Amendment." App. to Pet. for
Cert. in No. 99-1728, p. 76a. The Court of Appeals accepted the
appeal, and the United States, also a petitioner, intervened
pursuant to 28 U. S. C. § 2403 in order to defend the
constitutionality of the federal statute.
All three members of the panel agreed with petitioners and the
Government that the federal and Pennsylvania wiretapping statutes
are "content-neutral" and therefore subject to "intermediate
scrutiny."
200 F.3d
109, 121 (CA3 1999). Applying that standard, the majority
concluded that the
4 Title 18 U. S. C. § 2511(I)(a) provides: "(1) Except as
otherwise specifically provided in this chapter [§§2510-2520 (1994
ed. and Supp. V)] any person who-
"(a) intentionally intercepts, endeavors to intercept, or
procures any other person to intercept or endeavor to intercept,
any wire, oral, or electronic communication; ... shall be punished
.... "
522
statutes were invalid because they deterred significantly more
speech than necessary to protect the privacy interests at stake.
The court remanded the case with instructions to enter summary
judgment for respondents. In dissent, Senior Judge Pollak expressed
the view that the prohibition against disclosures was necessary in
order to remove the incentive for illegal interceptions and to
preclude compounding the harm caused by such interceptions through
wider dissemination. In so doing, he agreed with the majority
opinion in a similar case decided by the Court of Appeals for the
District of Columbia,
Boehner v.
McDermott, 191 F.3d
463 (1999). See also
Peavy v. WFAA-T-v,
Inc., 221
F.3d
158 (CA5 2000).5 We granted certiorari to resolve the
conflict. 530 U. S. 1260 (2000).
III
As we pointed out in
Berger v.
New York, 388 U. S. 41, 45-49
(1967), sophisticated (and not so sophisticated) methods of
eavesdropping on oral conversations and intercepting telephone
calls have been practiced for decades, primarily by law enforcement
authorities.6 In
Berger, we held that New
5 In the
Boehner case, as in this suit, a conversation
over a car cell phone was intercepted, but in that case the
defendant knew both who was responsible for intercepting the
conversation and how they had done it. 191 F. 3d, at 465. In the
opinion of the majority, the defendant acted unlawfully in
accepting the tape in order to provide it to the media.
Id.,
at 476. Apparently because the couple responsible for the
interception did not eavesdrop "for purposes of direct or indirect
commercial advantage or private financial gain," they were fined
only $500. See Department of Justice Press Release, Apr. 23, 1997.
In another similar case involving a claim for damages under
§2511(1)(c),
Peavy v.
WFAA-TV, Inc., 221 F.3d
158 (CA5 2000), the media defendant in fact participated in the
interceptions at issue.
6 In particular, calls placed on cellular and cordless
telephones can be intercepted more easily than those placed on
traditional phones. See
Shubert v.
Metrophone, Inc.,
898 F.2d
401, 404-405
(CA3 1990). Although calls placed on cell
and cordless phones can be easily intercepted, it is not clear how
often intentional interceptions take place. From 1992 through
523
York's broadly written statute authorizing the police to conduct
wiretaps violated the Fourth Amendment. Largely in response to that
decision, and to our holding in
Katz v.
United
States, 389 U. S.
347 (1967), that the attachment of a listening and recording
device to the outside of a telephone booth constituted a search,
"Congress undertook to draft comprehensive legislation both
authorizing the use of evidence obtained by electronic surveillance
on specified conditions, and prohibiting its use otherwise. S. Rep.
No. 1097, 90th Cong., 2d Sess., 66 (1968)."
Gelbard v.
United States, 408 U. S. 41, 78 (1972)
(REHNQUIST, J., dissenting). The ultimate result of those efforts
was Title III of the Omnibus Crime Control and Safe Streets Act of
1968, 82 Stat. 211, entitled Wiretapping and Electronic
Surveillance.
One of the stated purposes of that title was "to protect
effectively the privacy of wire and oral communications."
Ibid. In addition to authorizing and regulating electronic
surveillance for law enforcement purposes, Title III also regulated
private conduct. One part of those regulations, § 2511(1), defined
five offenses punishable by a fine of not more than $10,000, by
imprisonment for not more than five years, or by both. Subsection
(a) applied to any person who "willfully intercepts ... any wire or
oral communication." Subsection (b) applied to the intentional use
of devices designed to intercept oral conversations; subsection (d)
applied to the use of the contents of illegally intercepted wire
or
1997, less than 100 cases were prosecuted charging violations of
18 U. S. C. §2511. See Statement of James K. Kallstrom, Assistant
Director in Charge of the New York Division of the FBI on February
5, 1997 before the Subcommittee on Telecommunications, Trade, and
Consumer Protection, Committee on Commerce, U. S. House of
Representatives Regarding Cellular Privacy. However, information
concerning techniques and devices for intercepting cell and
cordless phone calls can be found in a number of publications,
trade magazines, and sites on the Internet, see id., at 6, and at
one set of congressional hearings in 1997, a scanner, purchased off
the shelf and minimally modified, was used to intercept phone calls
of Members of Congress.
524
oral communications; and subsection (e) prohibited the
unauthorized disclosure of the contents of interceptions that were
authorized for law enforcement purposes. Subsection (c), the
original version of the provision most directly at issue in this
suit, applied to any person who "willfully discloses, or endeavors
to disclose, to any other person the contents of any wire or oral
communication, knowing or having reason to know that the
information was obtained through the interception of a wire or oral
communication in violation of this subsection." The oral
communications protected by the Act were only those "uttered by a
person exhibiting an expectation that such communication is not
subject to interception under circumstances justifying such
expectation." § 2510(2).
As enacted in 1968, Title III did not apply to the monitoring of
radio transmissions. In the Electronic Communications Privacy Act
of 1986, 100 Stat. 1848, however, Congress enlarged the coverage of
Title III to prohibit the interception of "electronic" as well as
oral and wire communications. By reason of that amendment, as well
as a 1994 amendment which applied to cordless telephone
communications, 108 Stat. 4279, Title III now applies to the
interception of conversations over both cellular and cordless
phones.7 Although a lesser criminal penalty may apply to the
interception of such transmissions, the same civil remedies are
available whether the communication was "oral," "wire," or
"electronic," as defined by 18 U. S. C. § 2510 (1994 ed. and Supp.
V).
IV
The constitutional question before us concerns the validity of
the statutes as applied to the specific facts of these cases.
Because of the procedural posture of these cases, it is appropriate
to make certain important assumptions about those
7See, e. g., Nix v. O'Malley,
160 F.3d
343, 346 (CA6 1998); McKamey v.
Roach,
55 F.3d
1236, 1240 (CA6 1995).
525
facts. We accept petitioners' submission that the interception
was intentional, and therefore unlawful, and that, at a minimum,
respondents "had reason to know" that it was unlawful. Accordingly,
the disclosure of the contents of the intercepted conversation by
Yocum to school board members and to representatives of the media,
as well as the subsequent disclosures by the media defendants to
the public, violated the federal and state statutes. Under the
provisions of the federal statute, as well as its Pennsylvania
analogue, petitioners are thus entitled to recover damages from
each of the respondents. The only question is whether the
application of these statutes in such circumstances violates the
First Amendment.8
In answering that question, we accept respondents' submission on
three factual matters that serve to distinguish most of the cases
that have arisen under § 2511. First, respondents played no part in
the illegal interception. Rather, they found out about the
interception only after it occurred, and in fact never learned the
identity of the person or persons who made the interception.
Second, their access to the information on the tapes was obtained
lawfully, even though the information itself was intercepted
unlawfully by someone else. Cf.
Florida Star v.
B. J.
F., 491 U. S.
524, 536 (1989) ("Even assuming the Constitution permitted a
State to proscribe
receipt of information, Florida has not
taken this step"). Third, the subject matter of the conversation
was a matter of public concern. If the statements about the labor
negotiations had been made in a public arena-during a bargaining
session, for example-they would have been newsworthy. This would
also be true if a third party had inadvertently overheard Bartnicki
making the same statements to Kane when the two thought they were
alone.
8 In answering this question, we draw no distinction between the
media respondents and Yocum. See,
e. g.,
New York Times
Co. v.
Sullivan, 376 U. S. 254, 265-266 (1964);
First
Nat. Bank of Boston v.
Bellotti, 435 U. S. 765, 777
(1978).
526
v
We agree with petitioners that § 2511(1)(c), as well as its
Pennsylvania analog, is in fact a content-neutral law of general
applicability. "Deciding whether a particular regulation is content
based or content neutral is not always a simple task. ... As a
general rule, laws that by their terms distinguish favored speech
from disfavored speech on the basis of the ideas or views expressed
are content based."
Turner Broadcasting System, Inc. v.
FCC, 512 U. S.
622, 642-643 (1994). In determining whether a regulation is
content based or content neutral, we look to the purpose behind the
regulation; typically, "[g]overnment regulation of expressive
activity is content neutral so long as it is
'justified
without reference to the content of the regulated speech.'"
Ward v.
Rock Against Racism, 491 U. S. 781, 791
(1989).9
In this suit, the basic purpose of the statute at issue is to
"protec[t] the privacy of wire[, electronic,] and oral
communications." S. Rep. No. 1097, 90th Cong., 2d Sess., 66 (1968).
The statute does not distinguish based on the content of the
intercepted conversations, nor is it justified by reference to the
content of those conversations. Rather, the communications at issue
are singled out by virtue of the fact that they were illegally
intercepted-by virtue of the source, rather than the subject
matter.
On the other hand, the naked prohibition against disclosures is
fairly characterized as a regulation of pure speech. Unlike the
prohibition against the "use" of the contents of
9 "But while a content-based purpose may be sufficient in
certain circumstances to show that a regulation is content based,
it is not necessary to such a showing in all cases .... Nor will
the mere assertion of a contentneutral purpose be enough to save a
law which, on its face, discriminates based on content."
Turner
Broadcasting System, Inc. v.
FCC, 512 U. S. 622, 642-643
(1994).
527
an illegal interception in § 2511(1)(d), 10 subsection (c) is
not a regulation of conduct. It is true that the delivery of a tape
recording might be regarded as conduct, but given that the purpose
of such a delivery is to provide the recipient with the text of
recorded statements, it is like the delivery of a handbill or a
pamphlet, and as such, it is the kind of "speech" that the First
Amendment protects.ll As the majority below put it, "[i]f the acts
of 'disclosing' and 'publishing' information do not constitute
speech, it is hard to imagine what does fall within that category,
as distinct from the category of expressive conduct." 200 F. 3d, at
120.
VI
As a general matter, "state action to punish the publication of
truthful information seldom can satisfy constitutional standards."
Smith v.
Daily Mail Publishing Co., 443 U. S. 97, 102 (1979).
More specifically, this Court has repeatedly
10 The Solicitor General has cataloged some of the cases that
fall under subsection (d): "[I]t is unlawful for a company to use
an illegally intercepted communication about a business rival in
order to create a competing product; it is unlawful for an investor
to use illegally intercepted communications in trading in
securities; it is unlawful for a union to use an illegally
intercepted communication about management (or vice versa) to
prepare strategy for contract negotiations; it is unlawful for a
supervisor to use information in an illegally recorded conversation
to discipline a subordinate; and it is unlawful for a blackmailer
to use an illegally intercepted communication for purposes of
extortion. See,
e. g., 1968 Senate Report 67 (corporate and
labor-management uses);
Fultz v.
Gilliam, 942 F.2d
396, 400 n. 4 (6th Cir. 1991) (extortion);
Dorris V.
Absher, 959 F. Supp. 813, 815-817 (M. D. Tenn. 1997)
(workplace discipline), aff'd in part, rev'd in part,
179 F.3d
420 (6th Cir. 1999). The statute has also been held to bar the
use of illegally intercepted communications for important and
socially valuable purposes. See
In re Grand Jury, 111 F.3d
1066, 1077-1079 (3d Cir. 1997)." Brief for United States
24.
11 Put another way, what gave rise to statutory liability in
this suit was the information communicated on the tapes. See
Boehner V.
McDermott, 191 F.3d
463, 484 (CADC 1999) (Sentelle, J., dissenting) ("What ... is
being punished ... here is not conduct dependent upon the nature or
origin of the tapes; it is speech dependent upon the nature of the
contents").
528
held that "if 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 ... of the highest order."
Id., at 103; see also
Florida Star v.
B. J.
F., 491 U. S. 524 (1989);
Landmark Communications, Inc. v.
Virginia, 435 U. S. 829 (1978).
Accordingly, in
New York Times Co. v.
United States,
403 U. S. 713 (1971)
(per curiam), the Court upheld the
right of the press to publish information of great public concern
obtained from documents stolen by a third party. In so doing, that
decision resolved a conflict between the basic rule against prior
restraints on publication and the interest in preserving the
secrecy of information that, if disclosed, might seriously impair
the security of the Nation. In resolving that conflict, the
attention of every Member of this Court was focused on the
character of the stolen documents' contents and the consequences of
public disclosure. Although the undisputed fact that the newspaper
intended to publish information obtained from stolen documents was
noted in Justice Harlan's dissent, id., at 754, neither the
majority nor the dissenters placed any weight on that fact.
However,
New York Times v.
United States raised,
but did not resolve, the question "whether, in cases where
information has been acquired
unlawfully by a newspaper or
by a source, government may ever punish not only the unlawful
acquisition, but the ensuing publication as well." 12
Florida
Star, 491 U. S., at 535, n. 8. The question here, however, is a
narrower version of that still-open question. Simply put, the issue
here is this: "Where the punished publisher of information has
obtained the information in question in a manner lawful in itself
but from a source who has obtained it unlawfully, may the
government punish the ensuing publication of that information based
on the defect in a chain?"
Boehner, 191 F. 3d, at 484-485
(Sentelle, J., dissenting).
12 That question was subsequently reserved in
Landmark
Communications, Inc. v.
Virginia, 435 U. S. 829, 837
(1978).
529
Our refusal to construe the issue presented more broadly is
consistent with this Court's repeated refusal to answer
categorically whether truthful publication may ever be punished
consistent with the First Amendment. Rather,
"[o]ur cases have carefully eschewed reaching this ultimate
question, mindful that the future may bring scenarios which
prudence counsels our not resolving anticipatorily .... We continue
to believe that the sensitivity and significance of the interests
presented in clashes between [the] First Amendment and privacy
rights counsel relying on limited principles that sweep no more
broadly than the appropriate context of the instant case."
Florida Star, 491 U. S., at 532-533.
See also
Landmark Communications, 435 U. S., at 838.
Accordingly, we consider whether, given the facts of these cases,
the interests served by § 2511(1)(c) can justify its restrictions
on speech.
The Government identifies two interests served by the
statute-first, the interest in removing an incentive for parties to
intercept private conversations, and second, the interest in
minimizing the harm to persons whose conversations have been
illegally intercepted. We assume that those interests adequately
justify the prohibition in § 2511(1)(d) against the interceptor's
own use of information that he or she acquired by violating §
2511(1)(a), but it by no means follows that punishing disclosures
of lawfully obtained information of public interest by one not
involved in the initial illegality is an acceptable means of
serving those ends.
The normal method of deterring unlawful conduct is to impose an
appropriate punishment on the person who engages in it. If the
sanctions that presently attach to a violation of § 2511(1)(a) do
not provide sufficient deterrence, perhaps those sanctions should
be made more severe. But it would be quite remarkable to hold that
speech by a law-abiding possessor of information can be suppressed
in order to deter
530
conduct by a non-law-abiding third party. Although there are
some rare occasions in which a law suppressing one party's speech
may be justified by an interest in deterring criminal conduct by
another, see,
e. g.,
New York v.
Ferber, 458
U. S. 747 (1982),13 this is not such a case.
With only a handful of exceptions, the violations of §
2511(1)(a) that have been described in litigated cases have been
motivated by either financial gain or domestic disputes.14 In
virtually all of those cases, the identity of the person or persons
intercepting the communication has been known.15 Moreover,
petitioners cite no evidence that Congress viewed the prohibition
against disclosures as a response to the difficulty of identifying
persons making improper use of scanners and other surveillance
devices and accordingly of deterring such conduct,16 and there is
no
13 In cases relying on such a rationale, moreover, the speech at
issue is considered of minimal value.
Osborne v.
Ohio, 495 U.
S. 103 (1990);
New York v.
Ferber, 458 U. S., at
762 ("The value of permitting live performances and photographic
reproductions of children engaged in lewd sexual conduct is
exceedingly modest, if not
de minimis").
The Government also points to two other areas of the law-namely,
mail theft and stolen property-in which a ban on the receipt or
possession of an item is used to deter some primary illegality.
Brief for United States 14; see also
post, at 550-551
(REHNQUIST, C. J., dissenting). Neither of those examples, though,
involve prohibitions on speech. As such, they are not relevant to a
First Amendment analysis.
14 The media respondents have included a list of 143 cases under
§ 2511(1)(a) and 63 cases under §§ 2511(1)(c) and (d)-which must
also involve violations of subsection (a)-in an appendix to their
brief. The Reply Brief filed by the United States contains an
appendix describing each of the cases in the latter group.
15 In only 5 of the 206 cases listed in the appendixes, see n.
14,
supra,
16 The legislative history of the 1968 Act indicates that
Congress' concern focused on private surveillance "in domestic
relations and industrial espionage situations." S. Rep. No. 1097,
90th Cong., 2d Sess., 225 (1968). Similarly, in connection with the
enactment of the 1986 amendment, one Senator referred to the
interest in protecting private communications
531
empirical evidence to support the assumption that the
prohibition against disclosures reduces the number of illegal
interceptions.17
Although this suit demonstrates that there may be an occasional
situation in which an anonymous scanner will risk criminal
prosecution by passing on information without any expectation of
financial reward or public praise, surely this is the exceptional
case. Moreover, there is no basis for assuming that imposing
sanctions upon respondents will deter the unidentified scanner from
continuing to engage in surreptitious interceptions. Unusual cases
fall far short of a
from "a corporate spy, a police officer without probable cause,
or just a plain snoop." 131 Congo Rec. 24366 (1985) (statement of
Sen. Leahy).
17The dissent argues that we have not given proper respect to
"congressional findings" or to '''Congress' factual predictions.' "
Post, at 550. But the relevant factual foundation is not to
be found in the legislative record. Moreover, the dissent does not
argue that Congress did provide empirical evidence in support of
its assumptions, nor, for that matter, does it take real issue with
the fact that in the vast majority of cases involving illegal
interceptions, the identity of the person or persons responsible
for the interceptions is known. Instead, the dissent advances a
minor disagreement with our numbers, stating that nine cases
"involved an unknown
or unproved eavesdropper."
Post,
at 552, n. 9 (emphasis added). The dissent includes in that number
cases in which the identity of the interceptor, though suspected,
was not "proved" because the identity of the interceptor was not at
issue or the evidence was insufficient. In any event, whether there
are 5 cases or 9 involving anonymous interceptors out of the 206
cases under § 2511, in most of the cases involving illegal
interceptions, the identity of the interceptor is no mystery. If,
as the proponents of the dry-up-the-market theory would have it, it
is difficult to identify the persons responsible for illegal
interceptions (and thus necessary to prohibit disclosure by third
parties with no connection to, or responsibility for, the initial
illegality), one would expect to see far more cases in which the
identity of the interceptor was unknown (and, concomitantly, far
fewer in which the interceptor remained anonymous). Thus, not only
is there a dearth of evidence in the legislative record to support
the dry-up-the-market theory, but what postenactment evidence is
available cuts against it.
532
showing that there is a "need ... of the highest order" for a
rule supplementing the traditional means of deterring antisocial
conduct. The justification for any such novel burden on expression
must be "far stronger than mere speculation about serious harms."
United States v.
Treasury Employees, 513 U. S. 454, 475
(1995).18 Accordingly, the Government's first suggested
justification for applying § 2511(1)(c) to an otherwise innocent
disclosure of public information is plainly insufficient. 19
The Government's second argument, however, is considerably
stronger. Privacy of communication is an important interest,
Harper &
Row, Publishers, Inc. v.
Nation
Enterprises, 471
U. S. 539, 559 (1985),20 and Title Ill's restrictions are
intended to protect that interest, thereby "encouraging the
uninhibited exchange of ideas and information among private parties
.. " Brief for United States 27. More-
18 Indeed, even the burden of justifying restrictions on
commercial speech requires more than "'mere speculation or
conjecture.'''
Greater New Orleans Broadcasting Assn., Inc.
v.
United States, 527 U. S. 173, 188
(1999).
19 Our holding, of course, does not apply to punishing parties
for obtaining the relevant information unlawfully. "It would be
frivolous to assert-and no one does in these cases-that the First
Amendment, in the interest of securing news or otherwise, confers a
license on either the reporter or his news sources to violate valid
criminal laws. Although stealing documents or private wiretapping
could provide newsworthy information, neither reporter nor source
is immune from conviction for such conduct, whatever the impact on
the flow of news."
Branzburg v.
Hayes, 408 U. S. 665, 691
(1972).
20" 'The essential thrust of the First Amendment is to prohibit
improper restraints on the
voluntary public expression of
ideas; it shields the man who wants to speak or publish when others
wish him to be quiet. There is necessarily, and within suitably
defined areas, a concomitant freedom
not to speak publicly,
one which serves the same ultimate end as freedom of speech in its
affirmative aspect.'''
Harper &
Row, Publishers,
Inc. v.
Nation Enterprises, 471 U. S., at 559 (quoting
Estate of Hemingway v.
Random House, Inc., 23 N. Y.
2d 341, 348, 244 N. E. 2d 250, 255 (1968)).
533
over, the fear of public disclosure of private conversations
might well have a chilling effect on private speech.
"In a democratic society privacy of communication is essential
if citizens are to think and act creatively and constructively.
Fear or suspicion that one's speech is being monitored by a
stranger, even without the reality of such activity, can have a
seriously inhibiting effect upon the willingness to voice critical
and constructive ideas." President's Commission on Law Enforcement
and Administration of Justice, The Challenge of Crime in a Free
Society 202 (1967).
Accordingly, it seems to us that there are important interests
to be considered on
both sides of the constitutional
calculus. In considering that balance, we acknowledge that some
intrusions on privacy are more offensive than others, and that the
disclosure of the contents of a private conversation can be an even
greater intrusion on privacy than the interception itself. As a
result, there is a valid independent justification for prohibiting
such disclosures by persons who lawfully obtained access to the
contents of an illegally intercepted message, even if that
prohibition does not play a significant role in preventing such
interceptions from occurring in the first place.
We need not decide whether that interest is strong enough to
justify the application of § 2511(c) to disclosures of trade
secrets or domestic gossip or other information of purely private
concern. Cf.
Time, Inc. v.
Hill, 385 U. S. 374, 387-388
(1967) (reserving the question whether truthful publication of
private matters unrelated to public affairs can be constitutionally
proscribed). In other words, the outcome of these cases does not
turn on whether § 2511(1)(c) may be enforced with respect to most
violations of the statute without offending the First Amendment.
The enforcement of that provision in these cases, however,
implicates the core purposes
534
of the First Amendment because it imposes sanctions on the
publication of truthful information of public concern.
In these cases, privacy concerns give way when balanced against
the interest in publishing matters of public importance. As Warren
and Brandeis stated in their classic law review article: "The right
of privacy does not prohibit any publication of matter which is of
public or general interest." The Right to Privacy, 4 Harv. L. Rev.
193, 214 (1890). One of the costs associated with participation in
public affairs is an attendant loss of privacy.
"Exposure of the self to others in varying degrees is a
concomitant of life in a civilized community. The risk of this
exposure is an essential incident of life in a society which places
a primary value on freedom of speech and of press. 'Freedom of
discussion, if it would fulfill its historic function in this
nation, must embrace all issues about which information is needed
or appropriate to enable the members of society to cope with the
exigencies of their period.'" Time, Inc. v. Hill, 385
U. S., at 388 (quoting Thornhill v. Alabama, 310 U. S. 88, 102
(1940)).21
Our opinion in
New York Times Co. v.
Sullivan,
376 U. S. 254
(1964), reviewed many of the decisions that settled the "general
proposition that freedom of expression upon public questions is
secured by the First Amendment."
Id., at 269; see
Roth v.
United States, 354 U. S. 476, 484
(1957);
Bridges v.
California, 314 U. S. 252, 270
(1941);
Stromberg v.
California, 283 U. S. 359, 369
(1931). Those cases all relied on our "profound national commitment
to the principle that debate on public issues should be
uninhibited, robust, and wide-open,"
New York Times, 376 U.
S., at 270; see
Terminiello v.
Chicago, 337 U. S. 1, 4 (1949);
De Jonge v.
Oregon,
21 Moreover, "our decisions establish that absent exceptional
circumstances, reputational interests alone cannot justify the
proscription of truthful speech."
Butterworth v.
Smith, 494 U.
S. 624, 634 (1990).
535
299 U. S. 353,
365 (1937);
Whitney v.
California, 274 U. S. 357, 375-376
(1927) (Brandeis, J., concurring); see also
Roth, 354 U. S.,
at 484;
Stromberg, 283 U. S., at 369;
Bridges, 314 U.
S., at 270. It was the overriding importance of that commitment
that supported our holding that neither factual error nor
defamatory content, nor a combination of the two, sufficed to
remove the First Amendment shield from criticism of official
conduct. Id., at 273; see also NAACP v. But
ton, 371 U. S. 415, 445
(1963);
Wood v.
Georgia, 370 U. S. 375 (1962);
Craig v.
Harney, 331 U. S. 367 (1947);
Pennekamp v.
Florida, 328 U. S. 331, 342, 343,
n. 5, 345 (1946);
Bridges, 314 U. S., at 270.
We think it clear that parallel reasoning requires the
conclusion that a stranger's illegal conduct does not suffice to
remove the First Amendment shield from speech about a matter of
public concern.22 The months of negotiations over the proper level
of compensation for teachers at the Wyoming Valley West High School
were unquestionably a matter of public concern, and respondents
were clearly engaged in debate about that concern. That debate may
be more mundane than the Communist rhetoric that inspired Justice
Brandeis' classic opinion in
Whitney v.
California,
274 U. S., at 372, but it is no less worthy of constitutional
protection.
The judgment is affirmed.
It is so ordered.
JUSTICE BREYER, with whom JUSTICE O'CONNOR joins,
concurring.
I join the Court's opinion. I agree with its narrow holding
limited to the special circumstances present here: (1) the radio
broadcasters acted lawfully (up to the time of final public
disclosure); and (2) the information publicized in-
22 See,
e. g.,
Florida Star v.
B. J. F.,
491 U. S. 524,
535 (1989) (acknowledging "the 'timidity and self-censorship' which
may result from allowing the media to be punished for publishing
truthful information").
536
volved a matter of unusual public concern, namely, a threat of
potential physical harm to others. I write separately to explain
why, in my view, the Court's holding does not imply a significantly
broader constitutional immunity for the media.
As the Court recognizes, the question before us-a question of
immunity from statutorily imposed civil liabilityimplicates
competing constitutional concerns.
Ante, at 532533. The
statutes directly interfere with free expression in that they
prevent the media from publishing information. At the same time,
they help to protect personal privacy-an interest here that
includes not only the "right to be let alone,"
Olmstead v.
United States, 277 U. S. 438, 478 (1928)
(Brandeis, J., dissenting), but also "the interest ... in fostering
private speech,"
ante, at 518. Given these competing
interests "on both sides of the equation, the key question becomes
one of proper fit."
Turner Broadcasting System, Inc. v.
FCC, 520 U. S.
180, 227 (1997) (BREYER, J., concurring in part). See also
Nixon v.
Shrink Missouri Government PAC,
528 U. S. 377, 402 (2000)
(BREYER, J., concurring).
I would ask whether the statutes strike a reasonable balance
between their speech-restricting and speech-enhancing consequences.
Or do they instead impose restrictions on speech that are
disproportionate when measured against their corresponding privacy
and speech-related benefits, taking into account the kind, the
importance, and the extent of these benefits, as well as the need
for the restrictions in order to secure those benefits? What this
Court has called "strict scrutiny"-with its strong presumption
against constitutionality-is normally out of place where, as here,
important competing constitutional interests are implicated. See
ante, at 518 (recognizing "conflict between interests of the
highest order");
ante, at 533 ("important interests to be
considered on
both sides of the constitutional calculus");
ante, at 534 ("balanc[ingJ" the interest in privacy "against
the in-
537
terest in publishing matters of public importance");
ante, at 534 (privacy interest outweighed in these
cases).
The statutory restrictions before us directly enhance private
speech. See
Harper &
Row, Publishers, Inc. v.
Nation Enterprises, 471 U. S. 539, 559 (1985)
(describing" 'freedom
not to speak publicly''' (quoting
Estate of Hemingway v.
Random House, Inc., 23 N. Y.
2d 341, 348, 244 N. E. 2d 250, 255 (1968))). The statutes ensure
the privacy of telephone conversations much as a trespass statute
ensures privacy within the home. That assurance of privacy helps to
overcome our natural reluctance to discuss private matters when we
fear that our private conversations may become public. And the
statutory restrictions consequently encourage conversations that
otherwise might not take place.
At the same time, these statutes restrict public speech
directly, deliberately, and of necessity. They include media
publication within their scope not simply as a means, say, to deter
interception, but also as an end. Media dissemination of an
intimate conversation to an entire community will often cause the
speakers serious harm over and above the harm caused by an initial
disclosure to the person who intercepted the phone call. See
Gelbard v.
United States, 408 U. S. 41, 51-52
(1972). And the threat of that widespread dissemination can create
a far more powerful disincentive to speak privately than the
comparatively minor threat of disclosure to an interceptor and
perhaps to a handful of others. Insofar as these statutes protect
private communications against that widespread dissemination, they
resemble laws that would award damages caused through publication
of information obtained by theft from a private bedroom. See
generally Warren & Brandeis, The Right to Privacy, 4 Harv. L.
Rev. 193 (1890) (hereinafter Warren & Brandeis). See also
Restatement (Second) of Torts § 652D (1977).
As a general matter, despite the statutes' direct restrictions
on speech, the Federal Constitution must tolerate
538
laws of this kind because of the importance of these privacy and
speech-related objectives. See Warren & Brandeis 196 (arguing
for state-law protection of the right to privacy). Cf.
Katz
v.
United States, 389 U. S. 347, 350-351
(1967) ("[T]he protection of a person's
general right to
privacy-his right to be let alone by other people-is, like the
protection of his property and of his very life, left largely to
the law of the individual States");
ante, at 518 (protecting
privacy and promoting speech are "interests of the highest order").
Rather than broadly forbid this kind of legislative enactment, the
Constitution demands legislative efforts to tailor the laws in
order reasonably to reconcile media freedom with personal,
speech-related privacy.
Nonetheless, looked at more specifically, the statutes, as
applied in these circumstances, do not reasonably reconcile the
competing constitutional objectives. Rather, they
disproportionately interfere with media freedom. For one thing, the
broadcasters here engaged in no unlawful activity other than the
ultimate publication of the information another had previously
obtained. They "neither encouraged nor participated directly or
indirectly in the interception." App. to Pet. for Cert. in No.
99-1687, p. 33a. See also
ante, at 525. No one claims that
they ordered, counseled, encouraged, or otherwise aided or abetted
the interception, the later delivery of the tape by the interceptor
to an intermediary, or the tape's still later delivery by the
intermediary to the media. Cf. 18 U. S. C. § 2 (criminalizing
aiding and abetting any federal offense); 2 W. LaFave & A.
Scott, Substantive Criminal Law §§ 6.6(b)-(c), pp. 128-129 (1986)
(describing criminal liability for aiding and abetting). And, as
the Court points out, the statutes do not forbid the receipt of the
tape itself.
Ante, at 525. The Court adds that its holding
"does not apply to punishing parties for obtaining the relevant
information
unlawfully." Ante, at 532, n. 19 (emphasis
added).
539
For another thing, the speakers had little or no
legitimate interest in maintaining the privacy of the
particular conversation. That conversation involved a suggestion
about "blow[ing] off ... front porches" and "do[ing] some work on
some of those guys," App. 46, thereby raising a significant concern
for the safety of others. Where publication of private information
constitutes a wrongful act, the law recognizes a privilege allowing
the reporting of threats to public safety. See Restatement (Second)
of Torts § 595, Comment g (1977) (general privilege to report that
"another intends to kill or rob or commit some other serious crime
against a third person"); id., § 652G (privilege applies to
invasion of privacy tort). Cf. Restatement (Third) of Unfair
Competition § 40, Comment
c (1995) (trade secret law permits
disclosures relevant to public health or safety, commission of
crime or tort, or other matters of substantial public concern);
Lachman v.
Sperry-Sun Well Surveying Co., 457 F. 2d
850, 853 (CAlO 1972) (nondisclosure agreement not binding in
respect to criminal activity);
Tarasoff v.
Regents of
Univ. of Cal., 17 Cal. 3d 425, 436, 551 P. 2d 334, 343-344
(1976) (psychiatric privilege not binding in presence of danger to
self or others). Even where the danger may have passed by the time
of publication, that fact cannot legitimize the speaker's earlier
privacy expectation. Nor should editors, who must make a
publication decision quickly, have to determine present or
continued danger before publishing this kind of threat.
Further, the speakers themselves, the president of a teacher's
union and the union's chief negotiator, were "limited public
figures," for they voluntarily engaged in a public controversy.
They thereby subjected themselves to somewhat greater public
scrutiny and had a lesser interest in privacy than an individual
engaged in purely private affairs. See,
e. g., ante, at 535
(respondents were engaged in matter of public concern);
Wolston v.
Reader's Digest Assn., Inc., 443
540
u. S. 157, 164 (1979);
Hutchinson v.
Proxmire,
443 U. S. 111,
134 (1979);
Gertz v.
Robert Welch, Inc., 418 U. S. 323, 351
(1974). See also Warren & Brandeis 215.
This is not to say that the Constitution requires anyone,
including public figures, to give up entirely the right to private
communication, i.
e., communication free from telephone taps
or interceptions. But the subject matter of the conversation at
issue here is far removed from that in situations where the media
publicizes truly private matters. See
Michaels v.
Internet Entertainment Group, Inc., 5 F. Supp. 2d 823,
841-842 (CD Cal. 1998) (broadcast of videotape recording of sexual
relations between famous actress and rock star not a matter of
legitimate public concern); W. Keeton, D. Dobbs, R. Keeton, &
D. Owen, Prosser & Keeton on Law of Torts § 117, p. 857 (5th
ed. 1984) (stating that there is little expectation of privacy in
mundane facts about a person's life, but that "portrayal of ...
intimate private characteristics or conduct" is "quite a different
matter"); Warren & Brandeis 214 (recognizing that in certain
matters "the community has no legitimate concern"). Cf.
Time,
Inc. v.
Firestone, 424 U. S. 448, 454-455
(1976) (despite interest of public, divorce of wealthy person not a
"public controversy"). Cf. also
ante, at 533 ("[S]ome
intrusions on privacy are more offensive than others").
Thus, in finding a constitutional privilege to publish
unlawfully intercepted conversations of the kind here at issue, the
Court does not create a "public interest" exception that swallows
up the statutes' privacy-protecting general rule. Rather, it finds
constitutional protection for publication of intercepted
information of a special kind. Here, the speakers' legitimate
privacy expectations are unusually low, and the public interest in
defeating those expectations is unusually high. Given these
circumstances, along with the lawful nature of respondents'
behavior, the statutes' enforcement would disproportionately harm
media freedom.
541
I emphasize the particular circumstances before us because, in
my view, the Constitution permits legislatures to respond flexibly
to the challenges future technology may pose to the individual's
interest in basic personal privacy. Clandestine and pervasive
invasions of privacy, unlike the simple theft of documents from a
bedroom, are genuine possibilities as a result of continuously
advancing technologies. Eavesdropping on ordinary cellular phone
conversations in the street (which many callers seem to tolerate)
is a very different matter from eavesdropping on encrypted cellular
phone conversations or those carried on in the bedroom. But the
technologies that allow the former may come to permit the latter.
And statutes that may seem less important in the former context may
turn out to have greater importance in the latter. Legislatures
also may decide to revisit statutes such as those before us,
creating better tailored provisions designed to encourage, for
example, more effective privacy-protecting technologies.
For these reasons, we 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.
CHIEF JUSTICE REHNQUIST, with whom JUSTICE SCALIA and JUSTICE
THOMAS join, dissenting.
Technology now permits millions of important and confidential
conversations to occur through a vast system of electronic
networks. These advances, however, raise significant privacy
concerns. We are placed in the uncomfortable position of not
knowing who might have access to our personal and business e-mails,
our medical and financial records, or our cordless and cellular
telephone conversations. In an attempt to prevent some of the most
egregious violations of privacy, the United States, the District of
Columbia,
542
and 40 States have enacted laws prohibiting the intentional
interception and knowing disclosure of electronic communications.1
The Court holds that all of these statutes violate the First
Amendment insofar as the illegally intercepted conversation touches
upon a matter of "public concern," an amorphous concept that the
Court does not even attempt to define. But the Court's decision
diminishes, rather than enhances, the purposes of the First
Amendment, thereby chilling the speech of the millions of Americans
who rely upon electronic technology to communicate each day.
Over 30 years ago, with Title III of the Omnibus Crime Control
and Safe Streets Act of 1968, Congress recognized that the
"tremendous scientific and technological developments that have
taken place in the last century have made possible today the
widespread use and abuse of elec-
ISee 18 U. S. C. §2511(1) (1994 ed. and Supp. V); Ala. Code
§13A-11-30
et seq. (1994); Alaska Stat. Ann. § 42.20.300(d)
(2000); Ark. Code Ann. § 560-120 (1997); Cal. Penal Code Ann. §631
(West 1999); Colo. Rev. Stat. § 18-9-303 (2000); Del. Code Ann.,
Tit. 11, § 1336(b)(I) (1995); D. C. Code Ann. § 23-542 (1996); Fla.
Stat. § 934.03(1) (Supp. 2001); Ga. Code Ann. § 16-11-66.1 (1996);
Haw. Rev. Stat. §803-42 (1993); Idaho Code § 18-6702 (1997); Ill.
Compo Stat., ch. 720, § 5/14-2(b) (1999 Supp.); Iowa Code § 808B.2
(1994); Kan. Stat. Ann. § 21-4002 (1995); Ky. Rev. Stat. Ann. §
526.060 (Michie 1999); La. Rev. Stat. Ann. § 15:1303 (West 1992);
Me. Rev. Stat. Ann., Tit. 15, § 710(3) (Supp. 2000); Md. Cts. &
Jud. Proc. Code Ann. § 10-402 (Supp. 2000); Mass. Gen. Laws §
272:99(C)(3) (1997); Mich. Compo Laws Ann. § 750.53ge (West 1991);
Minn. Stat. § 626A.02 (2000); Mo. Rev. Stat. §542.402 (2000); Neb.
Rev. Stat. §86-702 (1999); Nev. Rev. Stat. § 200.630 (1995); N. H.
Rev. Stat. Ann. § 570-A:2 (Supp. 2000); N. J. Stat. Ann. §2A:156A-3
(West Supp. 2000); N. M. Stat. Ann. §30-12-1 (1994); N. C. Gen.
Stat. § 15A-287 (1999); N. D. Cent. Code § 12.1-15-02 (1997); Ohio
Rev. Code Ann. § 2933.52(A)(3) (1997); Okla. Stat., Tit. 13, §
176.3 (2000 Supp.); Ore. Rev. Stat. § 165.540 (1997); 18 Pa. Cons.
Stat. § 5703 (2000); R. 1. Gen. Laws § 11-35-21 (2000); Tenn. Code
Ann. § 39-13-601 (1997); Tex. Penal Code Ann. § 16.02 (Supp. 2001);
Utah Code Ann. § 7723a-4 (1982); Va. Code Ann. § 19.2-62 (1995); W.
Va. Code § 62-lD-3 (2000); Wis. Stat. § 968.31(1) (1994); Wyo.
Stat. Ann. § 7-3-602 (1995).
543
tronic surveillance techniques. As a result of these
developments, privacy of communication is seriously jeopardized by
these techniques of surveillance .... No longer is it possible, in
short, for each man to retreat into his home and be left alone.
Every spoken word relating to each man's personal, marital,
religious, political, or commercial concerns can be intercepted by
an unseen auditor and turned against the speaker to the auditor's
advantage." S. Rep. No. 1097, 90th Cong., 2d Sess., 67 (1968)
(hereinafter S. Rep. No. 1097).
This concern for privacy was inseparably bound up with the
desire that personal conversations be frank and uninhibited, not
cramped by fears of clandestine surveillance and purposeful
disclosure:
"In a democratic society privacy of communication is essential
if citizens are to think and act creatively and constructively.
Fear or suspicion that one's speech is being monitored by a
stranger, even without the reality of such activity, can have a
seriously inhibiting effect upon the willingness to voice critical
and constructive ideas." President's Commission on Law Enforcement
and Administration of Justice, The Challenge of Crime in a Free
Society 202 (1967).
To effectuate these important privacy and speech interests,
Congress and the vast majority of States have proscribed the
intentional interception and knowing disclosure of the contents of
electronic communications.2 See,
e. g., 18 U. S. C. §
2511(1)(c) (placing restrictions upon "any person who ...
intentionally discloses, or endeavors to disclose, to any other
person the contents of any wire, oral, or electronic commu-
2 "Electronic communication" is defined as "any transfer of
signs, signals, writing, images, sounds, data, or intelligence of
any nature transmitted in whole or in part by a wire, radio,
electromagnetic, photoelectronic or photooptical system." 18 U. S.
C. § 2510(12) (1994 ed., Supp. V).
544
nication, knowing or having reason to know that the information
was obtained through the interception of a wire, oral, or
electronic communication").
The Court correctly observes that these are "contentneutral
law[s] of general applicability" which serve recognized interests
of the "highest order": "the interest in individual privacy and ...
in fostering private speech."
Ante, at 526, 518. It
nonetheless subjects these laws to the strict scrutiny normally
reserved for governmental attempts to censor different viewpoints
or ideas. See
ante, at 532 (holding that petitioners have
not established the requisite" 'need ... of the highest order''')
(quoting
Smith v.
Daily Mail Publishing Co., 443 U. S. 97, 103 (1979)).
There is scant support, either in precedent or in reason, for the
Court's tacit application of strict scrutiny.
A content-neutral regulation will be sustained if
"'it furthers an important or substantial governmental interest;
if the governmental interest is unrelated to the suppression of
free expression; and if the incidental restriction on alleged First
Amendment freedoms is no greater than is essential to the
furtherance of that interest.'" Turner Broadcasting System,
Inc. v. FCC, 512 U. S. 622, 662 (1994)
(quoting United States v. O'Brien, 391 U. S. 367, 377
(1968)).
Here, Congress and the Pennsylvania Legislature have acted "
'without reference to the content of the regulated speech.'"
Renton v.
Playtime Theatres, Inc., 475 U. S. 41, 48 (1986).
There is no intimation that these laws seek "to suppress unpopular
ideas or information or manipulate the public debate" or that they
"distinguish favored speech from disfavored speech on the basis of
the ideas or views expressed."
Turner Broadcasting, supra,
at 641, 643. The antidisclosure provision is based solely upon the
manner in which the conversation was acquired, not the subject
matter of the conversation or the viewpoints of the speakers. The
same
545
information, if obtained lawfully, could be published with
impunity. Cf.
Seattle Times Co. v.
Rhinehart,
467 U. S. 20, 34
(1984) (upholding under intermediate scrutiny a protective order on
information acquired during discovery in part because "the party
may disseminate the identical information ... as long as the
information is gained through means independent of the court's
processes"). As the concerns motivating strict scrutiny are absent,
these contentneutral restrictions upon speech need pass only
intermediate scrutiny.
The Court's attempt to avoid these precedents by reliance upon
the
Daily Mail string of newspaper cases is unpersuasive. In
these cases, we held that statutes prohibiting the media from
publishing certain truthful information-the name of a rape victim,
Florida Star v.
B. J.
F., 491 U. S. 524 (1989);
Cox Broadcasting Corp. v.
Cohn, 420 U. S. 469 (1975), the
confidential proceedings before a state judicial review commission,
Landmark Communications, Inc. v.
Virginia, 435 U. S. 829 (1978), and
the name of a juvenile defendant,
Daily Mail, supra; Oklahoma
Publishing Co. v.
District Court, Oklahoma Cty.,
430 U. S. 308
(1977)
(per curiam)violated the First Amendment. In so
doing, we stated that "if 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."
Daily Mail, supra, at 103. Neither this
Daily Mail principle nor any other aspect of these cases,
however, justifies the Court's imposition of strict scrutiny
here.
Each of the laws at issue in the
Daily Mail cases
regulated the content or subject matter of speech. This fact alone
was enough to trigger strict scrutiny, see
United States v.
Playboy Entertainment Group, Inc., 529 U. S. 803, 813 (2000)
("[A] content-based speech restriction ... can stand only if it
satisfies strict scrutiny"), and suffices to distinguish these
antidisclosure provisions. But, as our synthesis of these
546
cases in
Florida Star made clear, three other unique
factors also informed the scope of the
Daily Mail
principle.
First, the information published by the newspapers had been
lawfully obtained from the government itself.3 "Where information
is entrusted to the government, a less drastic means than punishing
truthful publication almost always exists for guarding against the
dissemination of private facts."
Florida Star, supra, at
534. See,
e. g., Landmark Communications, supra, at 841, and
n. 12 (noting that the State could have taken steps to protect the
confidentiality of its proceedings, such as holding in contempt
commission members who breached their duty of confidentiality).
Indeed, the State's ability to control the information undermined
the claim that the restriction was necessary, for "[b]y placing the
information in the public domain on official court records, the
State must be presumed to have concluded that the public interest
was thereby being served."
Cox Broadcasting, supra, at 495.
This factor has no relevance in the present cases, where we deal
with private conversations that have been intentionally kept out of
the public domain.
Second, the information in each case was already "publicly
available," and punishing further dissemination would not have
advanced the purported government interests of confidentiality.
Florida Star, supra, at 535. Such is not the case here.
These statutes only prohibit "disclos[ure]," 18 U. S. C. §
2511(1)(c); 18 Pa. Cons. Stat. § 5703(2) (2000), and one cannot
"disclose" what is already in the public domain. See Black's Law
Dictionary 477 (7th ed. 1999) (defining "disclosure" as "[t]he act
or process of making known something that was previously unknown; a
revelation of facts");
3 The one exception was
Daily Mail, where reporters
obtained the juvenile defendant's name from witnesses to the crime.
See 443 U. S., at 99. However, the statute at issue there imposed a
blanket prohibition on the publication of the information. See id.,
at 98-99. In contrast, these antidisclosure provisions do not
prohibit publication so long as the information comes from a legal
source.
547
s. Rep. No. 1097, at 93 ("The disclosure of the contents of an
intercepted communication that had already become 'public
information' or 'common knowledge' would not be prohibited"). These
laws thus do not fall under the axiom that "the interests in
privacy fade when the information involved already appears on the
public record."
Cox Broadcasting, supra, at 494-495.
Third, these cases were concerned with "the 'timidity and
self-censorship' which may result from allowing the media to be
punished for publishing certain truthful information."
Florida
Star, 491 U. S., at 535. But fear of "timidity and
self-censorship" is a basis for upholding, not striking down, these
antidisclosure provisions: They allow private conversations to
transpire without inhibition. And unlike the statute at issue in
Florida Star, which had no scienter requirement, see
id., at 539, these statutes only address those who
knowingly disclose an illegally intercepted conversation.4
They do not impose a duty to inquire into the source of the
information and one could negligently disclose the contents of an
illegally intercepted communication without liability.
In sum, it is obvious that the
Daily Mail cases upon
which the Court relies do not address the question presented here.
Our decisions themselves made this clear: "The
Daily Mail
principle does not settle the issue whether, in cases where
information has been acquired
unlawfully by a newspaper or
by a source, government may ever punish not only the unlawful
acquisition, but the ensuing publication as well."
Florida Star,
supra, at 535, n. 8; see also
Daily Mail, 443 U. S., at
105 ("Our holding in this case is narrow. There is no issue before
us of unlawful press [conduct]");
Landmark
4 In 1986, to ensure that only the most culpable could face
liability for disclosure, Congress increased the scienter
requirement from "willful" to "intentional." 18 U. S. C. §
2511(I)(c); see also S. Rep. No. 99-541, p. 6 (1986) ("In order to
underscore that the inadvertent reception of a protected
communication is not a crime, the subcommittee changed the state of
mind requirement under [Title III] from 'willful' to 'intentional'
").
548
Communications, 435 U. S., at 837 ("We are not here
concerned with the possible applicability of the statute to one who
secures the information by illegal means and thereafter divulges
it").5
Undaunted, the Court places an inordinate amount of weight upon
the fact that the receipt of an illegally intercepted communication
has not been criminalized. See
ante, at 528-532. But this
hardly renders those who knowingly receive and disclose such
communications "law-abiding,"
ante, at 529, and it certainly
does not bring them under the
Daily Mail principle. The
transmission of the intercepted communication from the eavesdropper
to the third party is itself illegal; and where, as here, the third
party then knowingly discloses that communication, another illegal
act has been committed. The third party in this situation cannot be
likened to the reporters in the
Daily Mail cases, who
lawfully obtained their information through consensual interviews
or public documents.
These laws are content neutral; they only regulate information
that was illegally obtained; they do not restrict republication of
what is already in the public domain; they impose no special
burdens upon the media; they have a scienter requirement to provide
fair warning; and they promote the privacy and free speech of those
using cellular telephones. It is hard to imagine a more narrowly
tailored prohibition of the disclosure of illegally intercepted
communications, and it distorts our precedents to review these
statutes under the often fatal standard of strict scrutiny. These
laws therefore should be upheld if they further a sub-
5 Tellingly, we noted in
Florida Star that "[t]o the
extent sensitive information rests in private hands, the government
may under some circumstances forbid its nonconsensual acquisition,
thereby bringing outside of the
Daily Mail principle the
publication of any information so acquired." 491 U. S., at 534; see
also id., at 535 ("[I]t is highly anomalous to sanction persons
other than the source of [the] release").
549
stantial governmental interest unrelated to the suppression of
free speech, and they do.
Congress and the overwhelming majority of States reasonably have
concluded that sanctioning the knowing disclosure of illegally
intercepted communications will deter the initial interception
itself, a crime which is extremely difficult to detect. It is
estimated that over 20 million scanners capable of intercepting
cellular transmissions currently are in operation, see Thompson,
Cell Phone Snooping: Why Electronic Eavesdropping Goes Unpunished,
35 Am. Crim. L. Rev. 137, 149 (1997), notwithstanding the fact that
Congress prohibited the marketing of such devices eight years ago,
see 47 U. S. C. § 302a(d).6 As Congress recognized, "[a]ll too
often the invasion of privacy itself will go unknown. Only by
striking at all aspects of the problem can privacy be adequately
protected." S. Rep. No. 1097, at 69. See also Hearings on H. R.
3378 before the Subcommittee on Courts, Civil Liberties, and the
Administration of Justice of the House Committee on the Judiciary,
99th Cong., 1st Sess. and 2d Sess., 290 (1986) ("Congress should be
under no illusion ... that the Department [of Justice], because of
the difficulty of such investigations, would be able to bring a
substantial number of successful prosecutions").
Nonetheless, the Court faults Congress for providing "no
empirical evidence to support the assumption that the prohibition
against disclosures reduces the number of illegal interceptions,"
ante, at 530-531, and insists that "there is no basis for
assuming that imposing sanctions upon respondents will deter the
unidentified scanner from contin-
6 The problem is pervasive because legal "radio scanners [may
be] modified to intercept cellular calls." S. Rep. No. 99-541, at
9. For example, the scanner at issue in
Boehner v.
McDermott, 191 F.3d
463 (CADC 1999), had been recently purchased at Radio Shack.
See Thompson, 35 Am. Crim. L. Rev., at 152, and n. 138 (citing
Stratton, Scanner Wasn't Supposed to Pick up Call, But it Did,
Orlando Sentinel, Jan. 18, 1997, p. A15).
550
uing to engage in surreptitious interceptions,"
ante, at
531. It is the Court's reasoning, not the judgment of Congress and
numerous States regarding the necessity of these laws, which
disappoints.
The "quantum of empirical evidence needed to satisfy heightened
judicial scrutiny of legislative judgments will vary up or down
with the novelty and plausibility of the justification raised."
Nixon v.
Shrink Missouri Government PAC, 528 U. S. 377, 391
(2000). "[C]ourts must accord substantial deference to the
predictive judgments of Congress."
Turner Broadcasting, 512
U. S., at 665 (citing
Columbia Broadcasting System, Inc. v.
Democratic National Committee, 412 U. S. 94, 103 (1973)).
This deference recognizes that, as an institution, Congress is far
better equipped than the judiciary to evaluate the vast amounts of
data bearing upon complex issues and that "[s]ound policymaking
often requires legislators to forecast future events and to
anticipate the likely impact of these events based on deductions
and inferences for which complete empirical support may be
unavailable."
Turner Broadcasting, 512 U. S., at 665.
Although we must nonetheless independently evaluate such
congressional findings in performing our constitutional review,
this "is not a license to reweigh the evidence
de novo, or
to replace Congress' factual predictions with our own."
Id.,
at 666.
The "dry-up-the-market" theory, which posits that it is possible
to deter an illegal act that is difficult to police by preventing
the wrongdoer from enjoying the fruits of the crime, is neither
novel nor implausible. It is a time-tested theory that undergirds
numerous laws, such as the prohibition of the knowing possession of
stolen goods. See 2 W. LaFave & A. Scott, Substantive Criminal
Law § 8.10(a), p. 422 (1986) ("Without such receivers, theft ceases
to be profitable. It is obvious that the receiver must be a
principal target of any society anxious to stamp out theft in its
various forms"). We ourselves adopted the exclusionary
551
rule based upon similar reasoning, believing that it would
"deter unreasonable searches,"
Oregon v.
Elstad,
470 U. S. 298,
306 (1985), by removing an officer's "incentive to disregard [the
Fourth Amendment],"
Elkins v.
United States, 364 U. S. 206, 217
(1960).7
The same logic applies here and demonstrates that the incidental
restriction on alleged First Amendment freedoms is no greater than
essential to further the interest of protecting the privacy of
individual communications. Were there no prohibition on disclosure,
an unlawful eavesdropper who wanted to disclose the conversation
could anonymously launder the interception through a third party
and thereby avoid detection. Indeed, demand for illegally obtained
private information would only increase if it could be disclosed
without repercussion. The law against interceptions, which the
Court agrees is valid, would be utterly ineffectual without these
antidisclosure provisions.
For a similar reason, we upheld against First Amendment
challenge a law prohibiting the distribution of child pornography.
See
New York v.
Ferber, 458 U. S. 747 (1982).
Just as with unlawfully intercepted electronic communications, we
there noted the difficulty of policing the "low-profile,
clandestine industry" of child pornography production and concurred
with 36 legislatures that "[t]he most expeditious if not the only
practical method of law enforcement may be to dry up the market for
this material by imposing severe criminal penalties on persons
selling, advertising, or otherwise promoting the product."
Id., at 760. In so doing, we did not demand, nor did
Congress provide, any empirical
7 In crafting the exclusionary rule, we did not first require
empirical evidence. See
Elkins, 364 U. S., at 218
("Empirical statistics are not available to show that the
inhabitants of states which follow the exclusionary rule suffer
less from lawless searches and seizures than do those of states
which admit evidence unlawfully obtained"). When it comes to this
Court's awesome power to strike down an Act of Congress as
unconstitutional, it should not be "do as we say, not as we
do."
552
evidence to buttress this basic syllogism. Indeed, we reaffirmed
the theory's vitality in
Osborne v.
Ohio, 495 U. S. 103, 109-110
(1990), finding it "surely reasonable for the State to conclude
that it will decrease the production of child pornography if it
penalizes those who possess and view the product, thereby
decreasing demand." 8
At base, the Court's decision to hold these statutes
unconstitutional rests upon nothing more than the bald substitution
of its own prognostications in place of the reasoned judgment of 41
legislative bodies and the United States Congress.9 The Court does
not explain how or from where Congress should obtain statistical
evidence about the effectiveness of these laws, and "[s]ince as a
practical matter it is never easy to prove a negative, it is hardly
likely that conclusive factual data could ever be assembled."
Elkins, supra, at 218. Reliance upon the "dry-up-the-market"
the-
8 The Court attempts to distinguish
Ferber and
Osborne on the ground that they involved low-value speech,
but this has nothing to do with the reasonableness of the
"dry-up-the-market" theory. The Court also posits that Congress
here could simply have increased the penalty for intercepting
cellular communications. See
ante, at 529. But the Court's
back-seat legislative advice does nothing to undermine the
reasonableness of Congress' belief that prohibiting only the
initial interception would not effectively protect the privacy
interests of cellular telephone users.
9 The Court observes that in many of the cases litigated under §
2511(1), "the person or persons intercepting the communication
ha[ve] been known."
Ante, at 530. Of the 206 cases cited in
the appendices, 143 solely involved § 2511(1)(a) claims of wrongful
interception-disclosure was not at issue. It is of course
unremarkable that intentional
interception cases have not
been pursued where the identity of the eavesdropper was unknown. Of
the 61 disclosure and use cases with published facts brought under
§§2511(1)(c) and (d), 9 involved an unknown or unproved
eavesdropper, 1 involved a lawful pen register, and 5 involved
recordings that were not surreptitious. Thus, as relevant, 46
disclosure cases involved known eavesdroppers. Whatever might be
gleaned from this figure, the Court is practicing voodoo statistics
when it states that it undermines the "dry-up-the-market" theory.
See
ante, at 531, n. 17. These cases say absolutely nothing
about the interceptions and disclosures that have been
deterred.
553
ory is both logical and eminently reasonable, and our precedents
make plain that it is "far stronger than mere speculation."
United States v.
Treasury Employees, 513 U. S. 454, 475
(1995).
These statutes also protect the important interests of deterring
clandestine invasions of privacy and preventing the involuntary
broadcast of private communications. Over a century ago, Samuel
Warren and Louis Brandeis recognized that "[t]he intensity and
complexity of life, attendant upon advancing civilization, have
rendered necessary some retreat from the world, and man, under the
refining influence of culture, has become more sensitive to
publicity, so that solitude and privacy have become more essential
to the individual." The Right to Privacy, 4 Harv. L. Rev. 193, 196
(1890). "There is necessarily, and within suitably defined areas, a
... freedom
not to speak publicly, one which serves the same
ultimate end as freedom of speech in its affirmative aspect."
Harper &
Row, Publishers, Inc. v.
Nation
Enterprises, 471
U. S. 539, 559 (1985) (internal quotation marks and citation
omitted). One who speaks into a phone "is surely entitled to assume
that the words he utters into the mouthpiece will not be broadcast
to the world."
Katz v.
United States, 389 U. S. 347, 352
(1967); cf.
Gelbard v.
United States, 408 U. S. 41, 52 (1972)
(compelling testimony about matters obtained from an illegal
interception at a grand jury proceeding "compounds the statutorily
proscribed invasion of ... privacy by adding to the injury of the
interception the insult of ... disclosure").
These statutes undeniably protect this venerable right of
privacy. Concomitantly, they further the First Amendment rights of
the parties to the conversation. "At the heart of the First
Amendment lies the principle that each person should decide for
himself or herself the ideas and beliefs deserving of expression,
consideration, and adherence."
Turner Broadcasting, 512 U.
S., at 641. By "protecting the privacy of individual thought and
expression,"
United States
554
v.
United States Dist. Court for Eastern Dist. of Mich.,
407 U. S. 297, 302 (1972), these statutes further the
"uninhibited, robust, and wide-open" speech of the private parties,
New York Times Co. v.
Sullivan, 376 U. S. 254, 270
(1964). Unlike the laws at issue in the
Daily Mail cases,
which served only to protect the identities and actions of a select
group of individuals, these laws protect millions of people who
communicate electronically on a daily basis. The chilling effect of
the Court's decision upon these private conversations will surely
be great: An estimated 49.1 million analog cellular telephones are
currently in operation. See Hao, Nokia Profits from Surge in Cell
Phones, Fla. Today, July 18, 1999, p. El.
Although the Court recognizes and even extols the virtues of
this right to privacy, see
ante, at 532-533, these are "mere
words," W. Shakespeare, Troilus and Cressida, act v, sc. 3,
overridden by the Court's newfound right to publish unlawfully
acquired information of "public concern,"
ante, at 525. The
Court concludes that the private conversation between Gloria
Bartnicki and Anthony Kane is somehow a "debate .... worthy of
constitutional protection."
Ante, at 535. Perhaps the Court
is correct that "[i]f the statements about the labor negotiations
had been made in a public arena-during a bargaining session, for
examplethey would have been newsworthy."
Ante, at 525. The
point, however, is that Bartnicki and Kane had no intention of
contributing to a public "debate" at all, and it is perverse to
hold that another's unlawful interception and knowing disclosure of
their conversation is speech "worthy of constitutional protection."
Cf.
Hurley v.
Irish-American Gay, Lesbian and Bisexual
Group of Boston, Inc., 515 U. S. 557, 573 (1995)
("[O]ne important manifestation of the principle of free speech is
that one who chooses to speak may also decide 'what not to say' ").
The Constitution should not protect the involuntary broadcast of
personal conversations. Even where the communications involve
public figures or
555
concern public matters, the conversations are nonetheless
private and worthy of protection. Although public persons may have
forgone the right to live their lives screened from public scrutiny
in some areas, it does not and should not follow that they also
have abandoned their right to have a private conversation without
fear of it being intentionally intercepted and knowingly
disclosed.
The Court's decision to hold inviolable our right to broadcast
conversations of "public importance" enjoys little support in our
precedents. As discussed above, given the qualified nature of their
holdings, the
Daily Mail cases cannot bear the weight the
Court places upon them. More mystifying still is the Court's
reliance upon the "Pentagon Papers" case,
New York Times Co.
v.
United States, 403 U. S. 713 (1971)
(per curiam), which involved the United States' attempt to
prevent the publication of Defense Department documents relating to
the Vietnam War. In addition to involving Government controlled
information, that case fell squarely under our precedents holding
that prior restraints on speech bear "'a heavy presumption against
... constitutionality.'"
Id., at 714. Indeed, it was this
presumption that caused Justices Stewart and White to join the
6-to-3
per curiam decision. See
id., at 730-731
(White, J., joined by Stewart, J., concurring) ("I concur in
today's judgments, but only because of the concededly extraordinary
protection against prior restraints enjoyed by the press under our
constitutional system"). By no stretch of the imagination can the
statutes at issue here be dubbed "prior restraints." And the
Court's "parallel reasoning" from other inapposite cases fails to
persuade.
Ante, at 535.
Surely "the interest in individual privacy,"
ante, at
518, at its narrowest, must embrace the right to be free from
surreptitious eavesdropping on, and involuntary broadcast of, our
cellular telephone conversations. The Court subordinates that
right, not to the claims of those who themselves wish to speak, but
to the claims of those who wish to
556
publish the intercepted conversations of others. Congress'
effort to balance the above claim to privacy against a marginal
claim to speak freely is thereby set at naught.
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