- The Washington Times - Wednesday, May 30, 2001

In a ruling marching in synchrony with George Orwells "1984," the United States Supreme Court last week invoked the First Amendments protection of a free press to justify publication of known illegally intercepted private communications.

Writing for a 6-3 majority in Bartnicki vs. Vopper (May 21, 2001), Justice John Paul Stevens displayed a horse-and-buggy understanding of the media´s insatiable appetite for news that embarrasses politically no matter how debauched the source. His green light for newspapers and broadcasters to partner de facto with knaves to exploit private discussions recorded in violation of federal law for political ends is a worrisome stride toward a Big Brother-like private snitch police.

Privacy of communications fathers free minds and cherished spontaneity. Just ask Alexander Solzhenitsyn, Vaclav Havel, or lesser lights who lived during the Cold War years in the Soviet Union or its satellites where private conversations with even a crumb of political concern became either taboo, sotto voce, or cryptically coded. Interception and retaliation by the KGB or its little brother spy services were an omnipresent danger.

Indeed, to improve upon Justice Louis Brandeis in assailing indiscriminate wiretapping in Olmstead vs. United States (1928), would be an exercise in futility: "The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. They recognized the significance of man´s spiritual nature, his feelings and of his intellect … . They sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred, as against the government, the right to be let alone the most comprehensive of rights and the right most valued by civilized men."

The Information Age and the hotly competitive nonstop news industry have made contemporary private knavery every bit as menacing to communications privacy as the FBI or local police. Congress responded to communications modernity with atypical alacrity in Title III of the Omnibus Crime Control and Safe Streets Act. It criminalizes the intentional interception of electronic, oral or wire communications by private persons, including cellular or cordless phone conversations.

Title III also recognized the obvious namely, that public disclosure of an illegally intercepted communication typically inflicts greater harm than the interception itself. The communicants are likely to suffer political or social embarrassment that may forever cripple their careers.

Moreover, interceptions are customarily motivated in contemplation of media publication; otherwise, their unsavory objectives would be defeated. Thus, Title III makes the disclosure of an unlawfully recorded conversation by any person "knowing or having reason to know" of the illegality sanctionable by civil damage suits. The mass media are not exempted.

The Bartnicki case fit the privacy worries of Title III like a glove. Inflamed rhetoric and contention earmarked 1992-1993 collective-bargaining negotiations between a Pennsylvania teachers union and a school board. The union´s chief negotiator, Gloria Bartnicki, plotted strategy with the union´s president, Anthony F. Kane, by cellular phone. In an apparent fit of anguish or frustration, Mr. Kane menacingly avowed: "If they´re not gonna move for 3 percent, we´re gonna have to go to their homes… . To blow off their front porches, we´ll have to do some work on some of those guys. Really, uh, really and truthfully because this is, you know, this is bad news."

The Bartnicki-Kane conversation had been illegally taped by an anonymous knave. The tape was then discovered by the head of a local taxpayers´ organization opposed to the union´s demands, Jack Yocum, in his mailbox. Instantly perceiving the political dynamite in publicizing Mr. Kane´s extortionlike language, Mr. Yocum delivered the tape to Frederick W. Vopper, a radio commentator and union bete noir. Mr. Vopper played the tape on his public affairs talk show, another station soon followed suit, and local newspapers concurrently published its contents.

Miss Bartnicki and Mr. Kane sued for damages under Title III alleging that the media defendants knew their private conversation had been illegally recorded. Justice Stevens, however, declared that the First Amendment shielded members of the media from liability because they were not implicated in the illegal taping. But a fence is criminally accountable for knowingly selling stolen goods even though innocent of theft. Making thievery less profitable is an accepted constitutional justification. Ditto for making money laundering of funds obtained from crime a crime itself.

Justice Stevens, however, with breathtaking naivete, decried the absence of "empirical evidence to support the assumption that the prohibition against disclosures reduces the number of illegal interceptions." But why gather evidence to support an assumption that is as undeniable as the force of gravity? A recurring incentive to intercept is to mortify or injure an adversary through the mass media; it is not to obtain an inexpensive home surrogate for Beethoven´s Ninth Symphony.

A parity of reasoning explains the tsunami of leaks of classified or confidential political communications in expectation of publication with legal impunity.

Even if Title III failed to deter unlawful interceptions, it would be constitutionally justified in the name of free speech and privacy, at least when the illegality is known by the publisher. After stigmatization by the media in a front page news story or otherwise, a victim´s reputation is beyond repair. The political casualty list in D.C. alone rivals that of the Vietnam War Memorial. Additionally, the Bartnicki precedent will inhibit private conversations about serious political matters at the heart of the First Amendment for fear of illegal monitoring followed by mass media sensationalism or distortions.

Title III´s civil sanctions for publicizing the fruits of known criminal interceptions, of course, is not constitutionally mandated. Congress could carve an exemption for the politically muscular mass media.

But to conclude, as did Justice Stevens, that Congress must carve an exemption as an oblation to free public speech is nonsense on stilts.

His opinion vindicates Justice Oliver Wendell Holmes´ admonition that judges desperately need education in the obvious.


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