- The Washington Times - Tuesday, May 22, 2001

The Supreme Court yesterday immunized the press from retaliation for disseminating illegally wiretapped conversations on matters of "public concern."
The groundbreaking 6-3 decision which also appears to protect go-betweens who leak material wiretapped by others involved a talk-show broadcast of a proposal to bomb homes during a teachers pay dispute in Wyoming Valley, Pa.
It likely will be extended in an order Monday to intercepted 1996 cellular-phone strategy talks by Republican House leaders about disciplinary action against House Speaker Newt Gingrich, which were leaked to the press by Rep. Jim McDermott, Washington Democrat.
Justice John Paul Stevens said the case was based narrowly on unusual facts in an opinion joined by Justices Sandra Day OConnor, Anthony M. Kennedy, David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer. Chief Justice William H. Rehnquist disputed that claim along with Justices Antonin Scalia and Clarence Thomas.
Their dissent portrayed the decision as so broad it trumps wiretap laws enacted by 40 states, the District and the federal government to protect privacy rights in electronic transmission of e-mail messages, medical and financial records, or cordless and 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 publish the intercepted conversations of others," the dissenters said.
The decision applied as well to the leaker in the Pennsylvania case, Jack Yocum, the head of a local taxpayers organization who opposed the unions stance for a raise of more than 3 percent. He testified to finding a tape in his mailbox in 1993, recognizing the voices, and passing it on to talk-show host Frederick W. Vopper.
"If theyre not going to move for 3 percent, were gonna have to go to their homes … to blow off their front porches," union President Anthony F. Kane said.
The court has been holding an appeal involving a separate lawsuit brought by Rep. John A. Boehner, Ohio Republican, against Mr. McDermott, ranking Democrat on the House ethics committee, for handing over the taped Republican conversation to the New York Times, the Atlanta Journal-Constitution and Roll Call.
The court said both Mr. Yocum and Mr. McDermott knew in their unrelated cases that the calls were recorded illegally.
The high court is expected to remand the Boehner v. McDermott case Monday to the U.S. Circuit Court of Appeals for the District for action consistent with its order in the Pennsylvania case, Bartnicki v. Vopper.
Justice Stevens specifically said the court drew no distinction between Mr. Yocums role in delivering the tape and that of the broadcaster in deciding who enjoyed a First Amendment privilege.
Saying the high court had not confronted the publication issue since wiretaps were banned in 1934, the majority opinion found it unsurprising that justices and appeals court judges disagreed.
"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," Justice Stevens wrote in defending the right of reporters and broadcasters to publish such information even though it is furnished by others who break the law.
"A strangers illegal conduct does not suffice to remove the First Amendment shield from speech about a matter of public concern," the majority said.
Mr. Boehners attorney, Michael Carvin, said that in applying yesterdays decision to the Boehner v. McDermott case, the courts may rely on decisions that would hold Mr. McDermott to a higher standard because he is "a public official in a sensitive position" and Mr. Yocum is a private citizen.
Heather Foley, an aide to Mr. McDermott, said he was traveling yesterday and unavailable for comment. One of his attorneys, Chris Landau of Washington, said the opinion was being reviewed.


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