532 U.S. 514 (2001)
In the fall of 1992 and spring of 1993 the Pennsylvania State Education Association engaged in collective-bargaining negotiations with the Wyoming Valley West School District board.1 Petitioner Anthony Kane was president of the local union.2 Petitioner Gloria Bartnicki served as the union's chief negotiator and a teacher in the district.3
On the evening of May 15, 1993, Bartnicki used a cellular telephone in her car to call Kane.4 During the conversation they discussed the status of the negotiations, the possibility of a strike, and the board's offer of a three-percent raise.5 Kane suggested that if the board did not increase its offer the union should reject it and go on strike.6 He made statements about blowing off front porches and doing work on some of the board members.7 Bartnicki responded that they would have to do some nasty things.8
An unidentified person intercepted and recorded the cellular telephone conversation using an electronic device.9 The unknown interceptor gave the tape to respondent Jack Yocum, president of a local taxpayers' organization that had been critical of the union's demands.10 Yocum in turn gave the tape to respondent Frederick W. Vopper, a radio talk show host operating in the area.11
On May 31, 1993, Vopper played the tape of the intercepted conversation on his public affairs talk show.12 He played the tape again on August 23, 1993, during a news broadcast on a local television station.13 The same day the Wilkes-Barre Times Leader published a transcript of a portion of the tape.14 Bartnicki and Kane filed suit against Vopper, Yocum, and other media defendants seeking damages under Title III of the Omnibus Crime Control and Safe Streets Act of 1968 and the Pennsylvania Wiretapping and Electronic Surveillance Control Act.15
After discovery the District Court granted the petitioners' motion for summary judgment as to liability.16 The Court of Appeals for the Third Circuit reversed.17 The Supreme Court granted certiorari.18
Whether the First Amendment prohibits the imposition of liability on the media for the broadcast of a tape recording of an intercepted telephone conversation when the media had played no role in the interception?19
The First Amendment protects the publication of lawfully obtained truthful information of public concern absent a need to further a state interest of the highest order.20
Yes. The media defendants received the tape from Yocum after the interception had already occurred.21 They played no role in the interception itself.22 The conversation concerned public collective-bargaining negotiations and included statements about potential violence that were of significant public concern.23 The statutes directly punish the dissemination of information the media lawfully obtained.24 No state interest of the highest order justifies the restriction here.25
The First Amendment prohibits the imposition of liability on the media for broadcasting the intercepted conversation under these circumstances.26
Related opinions on this issue
Joined by O'connor
Justice Breyer concurred in the judgment but emphasized the narrowness of the holding.27 He stressed that the broadcasters acted lawfully up to the time of final public disclosure.28 The information involved a matter of unusual public concern, namely a threat of potential physical harm to others.29
Breyer explained that the statutes directly interfere with free expression while helping protect personal privacy and fostering private speech.30 He concluded that the statutes as applied disproportionately interfere with media freedom because the broadcasters neither encouraged nor participated in the interception.31 The speakers had little legitimate interest in maintaining privacy given the threats.32
The speakers were limited public figures who had engaged in a public controversy.33 Breyer noted that the holding does not create a broad public interest exception but protects publication of intercepted information of a special kind where privacy expectations are low and public interest is high.34
Joined by Scalia, Thomas
Chief Justice Rehnquist dissented, joined by Justices Scalia and Thomas.35 He argued that the federal and Pennsylvania statutes are content-neutral laws of general applicability that serve important privacy interests and foster private speech.36 Rehnquist contended that the Court improperly applied strict scrutiny rather than intermediate scrutiny.37
He distinguished the Daily Mail line of cases because those involved information lawfully obtained from the government or already publicly available, whereas here the information came from an illegal private interception.38 Rehnquist maintained that the statutes are narrowly tailored to deter illegal interceptions by drying up the market for illegally obtained information.39 Congress reasonably concluded the disclosure prohibition would reduce such interceptions.40
He would have reversed the Third Circuit and upheld the statutes.41
Whether the federal and Pennsylvania wiretapping statutes are content-neutral laws of general applicability that may constitutionally be applied to punish the publication of lawfully obtained truthful information of public concern?42
No. The statutes are content-neutral because they do not distinguish based on the content of the intercepted conversations or the identity of the speakers.4546 They instead target the fact that the information was illegally intercepted.47 Nevertheless, because the media defendants lawfully obtained the tape and the conversation addressed a matter of public concern involving union negotiations and threats of violence, the application of the statutes to punish publication cannot be justified absent a need of the highest order.48 The statutes directly punish speech rather than conduct.49
The governmental interests in deterrence and privacy protection do not meet that demanding standard when applied to innocent publishers.50
The statutes may not constitutionally be applied to punish the media's publication of the lawfully obtained information in these circumstances.51
Related opinions on this issue
Joined by Scalia, Thomas
Chief Justice Rehnquist maintained that the statutes are content-neutral laws of general applicability that should be upheld under intermediate scrutiny.52 He argued that they further substantial governmental interests in protecting privacy and deterring interceptions without reference to the content of the speech.53 Rehnquist rejected the application of strict scrutiny and contended that the statutes leave open ample alternative channels for communication while imposing only incidental restrictions on speech.54
He emphasized that the laws promote the privacy and free speech of those using cellular telephones.55 The statutes are narrowly tailored and promote important interests unrelated to the suppression of speech.56
Whether the governmental interests in removing incentives for illegal interceptions and minimizing harm from such interceptions justify restrictions on speech in these circumstances?57
Governmental interests in deterring illegal interceptions and protecting privacy must be weighed against First Amendment interests in publishing truthful information of public concern.58 Restrictions on speech are not justified when they punish lawful publishers who played no role in the initial illegality.59
No. The interest in removing incentives for illegal interceptions is insufficient because the traditional method of punishing the interceptor directly is available.60 There is no empirical evidence that punishing downstream publishers deters unknown interceptors.61 The interest in minimizing harm to persons whose conversations were intercepted is stronger but still insufficient here. The conversation involved a matter of public concern.62
The media defendants obtained the information lawfully without participating in the interception. The balance favors publication when the information is newsworthy and the publisher is innocent.63
The governmental interests do not justify the restrictions on speech in these circumstances.64
Related opinions on this issue
Joined by O'connor
Justice Breyer agreed that the statutes as applied do not reasonably reconcile the competing constitutional objectives of protecting privacy and promoting speech.65 He noted that the broadcasters engaged in no unlawful activity other than the ultimate publication.66 The speakers had little legitimate privacy interest given the threats of violence and their status as limited public figures.67
Breyer concluded that enforcement would disproportionately harm media freedom under the particular circumstances presented.68 He stressed that the speakers' legitimate privacy expectations were unusually low while the public interest in defeating those expectations was unusually high.69
Whether the media defendants' access to the tape was obtained lawfully even though the information itself was intercepted unlawfully by a third party?70
Access to information is lawful when the publisher receives it from a source after the interception has occurred and without participating in or encouraging the illegal act, even if the original interception violated the law.71
Yes. The media defendants received the tape from Yocum after the interception had already occurred. They played no role in the interception itself. They never learned the identity of the interceptor and obtained access to the tape through lawful means when Yocum delivered it to Vopper.72
This factual posture distinguishes the case from situations in which a publisher participates in the illegality or obtains the information through theft, fraud, or breach of contract, thereby rendering the access lawful despite the upstream interception.73
The media defendants' access to the tape was obtained lawfully.74