CURRENTS

Q&A: PRIVACY AND
INTERCEPTED INFORMATION

Is a journalist who receives and publishes illegally obtained information protected by the First Amendment? Generally, yes, according to a Supreme Court opinion issued in May. In the case, Bartnicki v. Vopper, a union local president in a cell phone conversation with another union activist threatened to blow up the porches of recalcitrant school board members. An unidentified party recorded the conversation, which two radio stations later broadcast. The union officials sued the stations, resulting in a case that pitted privacy interests against the First Amendment. The Supreme Court ruled by a vote of six to three for the media.

Lee Levine, a Washington, D.C., lawyer, represented the media defendants before the Supreme Court. He was interviewed for CJR by Geanne Rosenberg.
 
Q. What was at stake in this case?
A. What journalists do day in and day out is try to get information about matters of public concern for their readers and viewers -- oftentimes information possessed by people who aren't supposed to be giving it out. If the case had gone the other way, journalists would not only have to worry about whether information was true and newsworthy, but whether somebody had done something improper to get it.
 
Q. How strong a shield is the Bartnicki opinion for reporters who get hold of recordings of intercepted cell phone or cordless phone conversations?
A. If they did not participate in the unlawful acquisition of the conversation and the information addresses a matter of public concern, then it's a pretty strong shield.
 
Q. But how do we define "public concern?" Does the newsworthiness of the information help protect a reporter?
A. If you're drawing the line between what is protected by the First Amendment and what is not, the court has told us in a general way that so long as it involves a matter of public concern and is truthful, then the press has close to an absolute privilege to publish. What the court hasn't done -- and in fact worn on its sleeve that it hasn't done -- is to define what is a matter of public concern. By not defining public concern, on the one hand, what the court is purporting to do is to decide each case on its own unique facts. On the other hand, what the court may really be doing is giving editors wide discretion to determine what is newsworthy. But, while highly contentious labor negotiations involving a public school system are certainly newsworthy, intimate details of a celebrity's life may not be newsworthy and their disclosure could potentially be punished.
 
Q. Does the decision apply to other information besides illegally intercepted cell phone conversations?
A. I think the decision applies broadly to any information that in any sense is unlawfully acquired or improperly acquired by someone other than the reporter -- from stolen documents, to e-mail, to phone conversations, to anything else that someone might have gotten improperly and given to a reporter.
 
Q. In the Bartnicki case, the radio stations did not know who intercepted the cell phone conversation. Is there a greater legal risk to a reporter who knows the identity of the source of illegally obtained information?
A. The key is if the reporter played some active role in the illegal act. If so, the court plainly leaves the door open to criminal and civil penalties. But if the reporter simply learns the identity of the source after the illegal act has taken place, then that ought not to deprive the reporter of the protection of the First Amendment.
 
Q. Does this case reveal anything about the direction of the Supreme Court when it comes to First Amendment protection for the press?
A. I think it is a good sign that there are certain core First Amendment principles that again and again get vindicated. On the other hand, it is clear that this court, lower courts, government, and citizens generally, are very concerned about protecting what is perceived to be a diminished right of privacy, especially in this era of technology. I think whether we're talking about hidden cameras, or riding along with police and entering a private home, or cell phone conversations, people think there is a sphere of privacy that ought to be protected. There is a limit to the extent the court is going to allow freedom of the press to trump privacy.