Bartnicki v.

Vopper
Citation. 532 U.S. 514 (2001)

Brief Fact Summary. Bartnicki (P) and Kane (P) were union representatives whose cell phone conversation
was illegally intercepted and recorded at a time when collective-bargaining negotiations were going on, in
which they were involved. Vopper (D) was a radio commentator who played a tape of the conversation
between the two unionists on his radio show in connection with his news story featuring the negotiated
settlement. Bartnicki (P) and Kane (P) filed for damages, one ground being that Vopper (D) with others used
the tape on public media despite knowing or having reasonable grounds to know that the tape was of an
illegally tapped conversation. Vopper (D) claimed that his disclosure was protected under the freedom of
speech guaranteed under the First Amendment.

Synopsis of Rule of Law. The anti-wiretapping laws make it illegal to disclose the content of a conversation which
was itself illegally intercepted. However, if these provisions are made to apply to the disclosure of information which
has been obtained in a legal way from the party which intercepted the conversation, and if the information relates to
some matter of public concern, the said provisions violate the First Amendment.

Facts. Some unknown person tapped and recorded a cell phone conversation between Bartnicki (P ) who
was chief negotiator for a teachers’ union, and Kane (P) who was president of the same union. The
conversation included a threat of violent action (perhaps metaphorically) by Bartnicki in the event the union’s
demands were not met. The negotiations eventually wound up with a settlement in favor of the teachers.
After the settlement, Vopper (D), a radio commentator, aired a recording of the intercepted conversation on
his show along with his report on the settlement. He was not party to the interception, and did not know who
was responsible for it, and had obtained the recording by legal means. The two union leaders filed for
damages under federal wiretapping laws, which under S. 2511(1)(a) prohibits intercepting cell phone calls,
and under S. 2511(1)(c) prohibits disclosure of material obtained by illegal interception. The U.S. Supreme
Court granted review of the case.

Issue. Do the wiretapping laws which proscribe disclosure of material obtained by unlawfully tapping
communications violate the First Amendment, if used to conceal information which has been obtained by
legal means from the intercepting party, and when such information is related to public concern?

Held. (Stevens, J.) Yes. The provisions of federal wiretapping laws are in violation of the First Amendment if
used to suppress the disclosure of information obtained legally from a party which illegally intercepted a
conversation, and if the information is such as concerns the public. Since the Court has no doubt of Vopper’s
statement that he was not involved in nor had knowledge of the illegal interception of the conversation, that
he came into possession of the intercepted communication lawfully, and that the disclosed information was
of public concern. In such a case, it would be a violation of the constitution if a state were to make a citizen
liable for the publication of true information. The issue to be determined here is whether a person who has
obtained access to some material in a legal manner from one who has procured it through illegal means
should be punished for publishing the material. The wiretapping legislation has as its first intent the removing
of incentive for any interception of private communication. This is not served if an innocent disclosure of
public information obtained legally is punished under that law. The person who performed the illegal act is
the one who merits punishment, and only in such a case will the punishment have the desired deterrent
action. The second intent the government intends to serve through this law is to prevent harm from ensuing
to the persons whose private communications were thus illegally intercepted. This is a much stronger motive,
as it is an important essential of government to ensure privacy of comversation. In this suit, however, the
maintenance of privacy is of less concern than the disclosure of matters which concern the public. When a
person involves himself in public affairs, he invites some loss of privacy as a matter of course. This material
of public concern cannot be removed from the protection afforded by the First Amendment because some
unknown person acted illegally in obtaining the tapped conversation. The decision is affirmed.

Dissent. (Rehnquist, C. J.) The federal and state government anti- wiretapping laws were enacted in order to prevent
the privacy of citizens from violation. Under these laws, it is illegal to intentionally tap into a private conversation and
also to disclose material from electronic communications. The majority view of the court is that these laws are in
violation of the First Amendment, since the illegally obtained information relates to a matter of public concern, even
though the concept of what constitutes valid public concern is not a matter the majority even touch upon. However, it
is undoubtedly true that this view as held by the majority actually reduces the freedoms protected by the First
Amendment, since millions of citizens who use electronic communication have reason to fear disclosure of their
private conversation under this nebulous view. The anti-wiretapping statutes are neutral as to the content of the
tappedconversations, and only apply to the fact of illegally obtaining private information. This definition is extremely
precise to fit the demands of the statute’s object, and therefore it is against all precedent to review these laws as
unconstitutional under strict scrutiny, the standards of which they already meet. These laws should be upheld under
intermediate scrutiny as they do further the important governmental interest of protecting citizen privacy. The
constitution should not be a means of protecting unwilling publication of private conversations.

Concurrence. (Breyer, J.) The Court decision in this case is intended to be applicable only to the facts of
this specific case, and not to extrapolate beyond this situation. The facts here considered are that,first, the
broadcasters were within the law up to the time of their publishing the information, and that secondly, the
information disclosed involved a threat of possible physical harm to others, which is a matter of public
concern.

Discussion. The issue in this case led to a decision which expanded the legal precedent in this area. Until
this time the Court’s holding was that under the First Amendment, a person could not be held liable for
publishing private facts provided the information was legally obtained from public records. The only
justification for liability would be a governmental interest of highest magnitude. This present case involved
communication of a matter which could be regarded as public in some aspects so that it could not be treated
as a purely private matter, which might have rendered the publisher liable.