Court rules media can reveal wiretapped calls

If reporters play no role in obtaining information illegally, they are free to use it.

Faced with striking a balance between freedom of the press and the right to privacy during telephone conversations, the US Supreme Court has come down on the side of the media in a case with broad implications for news organizations.

At issue was whether news reporters and others may be held liable under a federal wiretap law for disclosing in news reports the contents of illegally recorded cellular telephone conversations.

Federal law permits private individuals to sue people who disclose the contents of a private conversation when they knew or should have known that the conversation had been illegally intercepted.

In a major decision upholding free-press rights, the Supreme Court ruled 6 to 3 on Monday that the First Amendment protects the disclosure of such information when reporters or others play no role in the illegal interception and when the reporters obtained the information lawfully.

"This case threatened the flow

of information, which is the lifeblood of democracy," says Paul McMasters of the First Amendment Center in Arlington, Va. But because of this decision, "journalism will continue to be practiced as freely as before."

In clarifying the ground rules for the media, the court said the content of the disclosed conversation must relate to matters of great public concern.

"A stranger's illegal conduct does not suffice to remove the First Amendment shield from speech about a matter of public concern," writes Justice John Paul Stevens for the majority.

Justice Stevens said Congress addressed important interests in passing the wiretap disclosure law - discouraging future wiretaps and protecting the private conversations.

"The enforcement of that provision in this case, however, implicates the core purposes of the First Amendment because it imposes sanctions on the publication of truthful information of public concern," he writes. "In this case, privacy concerns give way when balanced against the interests of publishing matters of great importance."

Chief Justice William Rehnquist wrote a dissent, joined by Justices Antonin Scalia and Clarence Thomas in which he notes that Congress and most states have laws seeking to deter illegally intercepted communications. He says there are 20 million scanners in the US capable of intercepting cellphone calls.

"Surely, the interest of individual privacy at its narrowest must embrace the right to be free from surreptitious eavesdropping on, and involuntary broadcast of, our cellular telephone conversations," the chief justice writes. "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."

To privacy advocates, the ruling is a setback undermining government efforts to protect the security of cellphone conversations.

Free-speech and press advocates view the decision as a important victory for the idea that the news media should be as free as possible to expose the truth and report on issues of public importance without facing private lawsuits over illegal activity committed by someone else.

"Anytime somebody leaks something that's classified, that person is potentially breaking the law. But the press isn't - as long as they didn't steal it themselves," says Tom Rosenstiel, executive director of the Project for Excellence in Journalism here.

The issue arose in a Pennsylvania case in which an undisclosed individual intercepted and recorded a private cellphone conversation between two teachers' union officials who were engaged in heated negotiations with the local school board.

The officials discussed strategy in seeking a 6 percent salary increase rather than the 3 percent raise the school board was offering. At one point, one of the officials said: "If they are not going to move for 3 percent, we're gonna have to go to their, their homes ... to blow off their front porches ..."

A tape recording of the intercepted conversation was delivered anonymously to the mailbox of the president of the local taxpayers association. He gave the tape to a local radio announcer who played it on the air. Other media then picked up the story and rebroadcast or printed portions of the conversation.

The two union officials, Gloria Bartnicki and Anthony Kane, filed suit against the radio announcer, Frederick Vopper, his radio station, and the taxpayers association president. The suit cited a federal law that allows money damages against any person who discloses the contents of an intercepted private conversation and who knew, or had reason to know, the interception was illegal.

The defendants argued that they had no idea who made the illegal interception and should not be held accountable for a crime committed by someone else. A federal appeals court ruled 2-to-1 in favor of the station. The court said the free-speech and free-press protections of the First Amendment outweighed government concerns about cellphone privacy and illegal wiretaps.

Abraham McLaughlin contributed to this report.

(c) Copyright 2001. The Christian Science Monitor

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