SPLC guide to publishing leaked material
September 1, 2001 Student Press Law Center
For Dimitrius Desyllas, editor of Portland State University's alternative magazine, The Rearguard, the day last March began as any other — until he arrived at The Rearguard's office and saw a mysterious box.1 Opening the box, Desyllas was shocked to find dozens of confidential student files containing disciplinary records dating back some five years. Desyllas quickly determined that the information contained in the confidential files was not newsworthy and instead focused on how the university could allow such sensitive files out of its control. Still, the question remains: What if the files had contained information he had deemed newsworthy? Could he legally have reported it?
Nowadays, confidential documents are not the only things appearing on the steps of the newsroom door. Reporters, such as Desyllas, are frequently sent copies of illegally intercepted e-mails, videos of secretly recorded private meetings and tapes of cell phone conversations for use in news stories. Advancements in technology are making it easier for people to eavesdrop on private communications. As individuals enjoy the convenience of discussing business on cell phones, cordless phones and email, they are becoming increasingly vulnerable to having private details unlawfully intercepted and possibly exposed by the media.2
It is clear journalists have no special privilege or license to break the law in their efforts to gather the news. Until recently, however, it was less clear whether they could safely publish newsworthy information illegally obtained by others. In its 2001 decision Bartnicki v. Vopper, the Supreme Court — for the first time — specifically addressed the extent of First Amendment protection provided to speech that disclosed the contents of an illegally intercepted communication.3 In its decision, the Court struck down federal and state wiretapping statutes that prohibited the disclosure of communications illegally intercepted (i.e., intercepted cell phone conversations).4 While the holding in Bartnicki was an important victory for the news media, the reasoning of some of the justices suggests future cases might not all have similar outcomes.5
Historically, journalists have relied on leaked information for scintillating news stories. A recent example involved CBS and its receipt of confidential scientific reports leaked by a tobacco executive that suggested Philip Morris spiked cigarettes to make them more addictive. Coverage of these reports spawned several lawsuits throughout the country that resulted in Big Tobacco coughing up billions of dollars in legal damages.
Probably the best known example of a news story conceived from information unlawfully procured by a third party is the revelation of the Pentagon Papers in the early 1970s.6 The government's involvement in the Vietnam conflict came to light when a military insider leaked the highly classified Pentagon Papers to The New York Times. The publication of the documents, which contained information highly critical of U.S. government policy in Southeast Asia, is widely considered a pivotal link in the chain of events that swayed public opinion against the Vietnam War.
Over the years, courts have generally given fairly wide latitude to the press' newsgathering efforts — as long as the press itself did not engage in unlawful conduct. Journalists have no special license to invade someone's privacy, break the law or encourage others to do so in order to obtain newsworthy information. For example, a reporter cannot bug a public official's office in order to secure evidence of him taking a bribe. Neither can a reporter legally help another person to do so. However, where information is lawfully obtained by the journalist it is considered fair game.7 The general rule articulated by the Supreme Court in its 1979 decision Smith v. Daily Mail Publishing Co. is "if a newspaper lawfully obtains truthful information about a matter of public significance then state officials may not constitutionally punish publication of the truthful information, absent a need of the highest order."8
Bartnicki v. Vopper: A Recap
In Bartnicki, a private cell phone conversation became very public news when aired on a local radio station. The conversation was intercepted by a third party in violation of state and federal wiretapping statutes.9 The content of the conversation was related to collective-bargaining negotiations between the teachers' union and the school board. Negotiations were "contentious" and received "a lot of media attention."10 The most controversial part of the conversation was a comment made by chief union negotiator, Gloria Bartnicki, who threatened, albeit idly, to "blow off [the school board members'] front porches."11
Local radio host Frederick Vopper was given a copy of the illegally taped conversation, which was left in the mailbox of the head of the local taxpayers' organization that had opposed the union's demands throughout the negotiations. Vopper aired the tape. Bartnicki sued alleging that while Vopper himself had not taped the telephone call, he knew the conversation had been illegally intercepted and, hence, was prohibited from airing the contents of the conversation pursuant to state and federal wiretapping laws. In defense, Vopper argued that disclosures of newsworthy information were protected by the First Amendment and any statutes preventing such disclosures were unconstitutional.
The High Court, in a 6-3 decision, ruled in favor of Vopper holding the First Amendment does protect speech that discloses the contents of an illegally intercepted communication. The holding in Bartnicki paid special attention to the interest in the dissemination of information concerning public issues and its relationship to the privacy interests of individuals. In this instance, the Court held in favor of "full and free dissemination of information concerning public information."12
The Court's language in the opinion should not be read too broadly, however. In the concurring opinion, Justice Breyer, joined by Justice O'Conner, agreed with the "narrow" holding of the majority, but went on to add it should be limited to the facts presented in the Bartnicki case.
Not until Bartnicki had the Supreme Court specifically addressed the extent of First Amendment protection provided to the publication of illegally obtained information. In the Pentagon Papers case (discussed above), the Court focused on the content of the documents and the consequence of publication. Most importantly, the Court addressed the issue of prior restraint, as an injunction was in place preventing The New York Times from publishing the story. What the Court did not focus on was the issue regarding the illegal nature in which the Pentagon Papers were acquired. The Court's lack of attention to the unlawful acquisition of the papers suggested to some that, as long as the information is of public concern, the publication of truthful information stolen by a third party is afforded First Amendment protection.13
In fact, the courts have traditionally distinguished between "news" and "newsgathering."14 Journalists who invade a person's privacy in order to obtain newsworthy information can be forced to pay damages based on the legal claim of intrusion. However, an intrusion claim punishes only the act of newsgathering. It does not prevent the subsequent publication of the newsworthy information.
Moreover, intrusion provides little protection to public figures because they have a diminished expectation of privacy. The Court in Bartnicki distinguished between private speech of a private individual and private speech of a public figure/official. In Bartnicki, the chief negotiator, who was also the president of the teacher's union, was held to be a limited public figure.15 Hence, her conversation did not receive the same protection provided to individuals involved in "purely private affairs."16 Justice Breyer, in his concurrence, wrote, "[T]he subject matter of conversation at issue here is far removed from that in situations where the media publicizes truly private matters."17 He went on to say the speakers' expectation of privacy in this instance is "unusually low" and the public's right to know is "unusually high."18
The High Court has repeatedly refused to answer categorically whether truthful publication can ever be punished and not run afoul of the First Amendment. In other words, while it is clear that the journalist who acquires truthful information unlawfully can be punished for her newsgathering efforts, the Court has declined to address whether the government can punish the actual publication of the newsworthy information obtained.19
In Bartnicki, the Court once again refused to answer that question. Instead, the Justices chose to narrow the issue to the publication of truthful information unlawfully obtained by a third party. In addressing that issue, the Court seemed to focus on three key factors:
The radio host who aired the conversation played no part in the illegal interception. Had the host actually intercepted and taped the cell phone conversation it seems clear he would have been found in violation of the statute and punished accordingly regardless of the impact his punishment may have had on the publication of the information.
The radio host lawfully obtained access to the tapes, even though the information itself was intercepted unlawfully by someone else. Again, the Court reiterated the importance of the reporter coming into the court with clean hands. One question raised is whether the outcome would have been different had the host paid the source for his tapes or otherwise "encouraged" people to come forward with unlawfully obtained information they might have. That question remains unanswered. Additionally, even if journalists do nothing wrong themselves, at least some of the justices suggest that time and technology may dictate when the media has crossed the Court's threshold creating a situation where privacy interests will trump the First Amendment. The more "clandestine and pervasive" the invasion of privacy by a third party, the more likely wiretapping statutes (similar to the ones at issue in the Bartnicki case) may be applicable to the media.20 Furthermore, the Court stated, "disclosure of the content of a private conversation can be an even greater intrusion on privacy than the interception itself even if that prohibition does not play a significant role in preventing such interceptions from occurring in the first place."21
The subject matter of the conversation was deemed a matter of public concern. This last prong appears to have weighed heavily on the minds of the justices. Even if the first two elements are met, a reporter's attempt to publish truthful information unlawfully obtained by a third party will likely fail if it is not of public concern. Unfortunately, determining what is of public concern is not clear. While defining the similar standard of newsworthiness some courts have largely deferred to the news media's judgement, others have been much more demanding and have balanced the social value in information against the interest of an individual in maintaining privacy. Among the factors some lower courts have considered in determining whether information is newsworthy: 1) the social value of the facts published; 2) the depth of the article's intrusion in ostensibly private affairs; and 3) the extent to which the party voluntarily acceded to a position of public notoriety.22 Matters related to the job performance of public officials or matters that will have a significant impact on a large number of people would easily seem to fit under the definition of public concern.
Given the three-prong analysis, the Court concluded that holding the radio host liable would not advance the purpose of the state and federal wiretapping statutes because it would not deter future interceptions by third parties.23 Where information has been unlawfully obtained, the Supreme Court has held in previous cases that civil and criminal sanctions are the appropriate remedy against the offenders and not the media.24
It is the nature of the profession that journalists will occasionally receive unsolicited — and, sometimes, unlawfully obtained — information. The next anonymous package left at the newsroom door could very well contain an intercepted e-mail by the university president reprimanding a professor, a video of a school staff member stealing office supplies, or a tape of a cordless phone conversation between the football coach and his bookie. The receipt of such information raises serious legal (and ethical) issues for which student journalists need to be prepared.
For now, the Bartnicki decision is a victory for student journalists. The Court's holding makes it clear the administration cannot prohibit the publication of truthful information obtained unlawfully. However, the Court cautioned that information obtained from a "pervasive" invasion of a person's privacy interest may not be afforded First Amendment protection. Moreover, the decision suggests that the holding may be specific to the facts of the case and leaves open the possibility that a different set of facts could render a very different outcome.
Until then, while student journalists continue to carefully weigh their decision to publish newsworthy information unlawfully obtained from private or unknown sources, they can be confident that the law should protect them whatever their decision might be. Who knows? An exclusive story could be as close as the next mysterious box that appears at the newsroom door.
For more information, read our FAQ: "To Publish or Not to Publish?"
Administrators Seize Mysterious Files, 19 SPLC Report, No. 2 at 10 (Spring 2001).
In Dallas, a scanner was used to record a wireless telephone conversation by a trustee of the local school board discussing plans to unfairly interfere in the school district's award of an insurance contract. See Peavy v. WFAA, 221 F.3d 158 (5th Cir. 2000). In Florida, a third party recorded a cellular phone conference call of Republican members of the U.S. House of Representatives discussing an ethics investigation of then-Speaker Newt Gingirch. See Boehner v. McDermott, 191 F.3d 463 (D.C. Cir. 1999). In light of the Bartnicki decision, the Boehner case was vacated and remanded to the appellate court for further review and the Supreme Court denied certiorari in the Peavy case.
Bartnicki v. Vopper, 532 U.S. 514, 121 S. Ct. 1753 (2001).
The federal government and 40 states have enacted laws prohibiting intentional interception and disclosures of electronic communications, i.e. cordless/cell phone, Internet, etc. The statutes at issue in Bartnicki are 18 U.S.C. Sec. 2511(1)(c) (1994 ed. and Supp. V) and 18 Pa. Cons. Stat. Sec. 5703 (2000). The Court's holding in Bartnicki provides a very narrow exception to wiretapping statutes.
Justice Breyer, joined by Justice O'Conner, wrote in the concurring opinion, "I would not extend [the Bartnicki] holding beyond the present circumstances."
New York Times v. United States, 403 U.S. 713 (1971).
Pearson v. Dodd, 410 F.2d 701 (D.C. Cir.), cert denied, 395 U.S. 947 (1969) (newspaper columnists who lawfully received copies of documents that they knew had been removed by others, without authorization, from office of U.S. Senator are not liable for invasion of privacy based on intrusion).
Smith v. Daily Mail Publishing Co., 443 U.S. 97, 102 (1979).
18 U.S.C. Sec. 2511 (1)(c) (1994 ed. and Supp. V); 18 Pa. Cons. Stat. Sec. 5703 (2000).
Bartnicki, 121 S. Ct. at 1756.
Id. at 1757.
Robert M. O'Neil, Tainted Sources: First Amendment Rights and Journalistic Wrongs, 4 Wm. & Mary Bill Rts. J. 1005, 1009 (1996).
Law of the Student Press, at 134 (1994).
Id.(citing Michaels v. Internet Entertainment Group, Inc., 5 F. Supp. 2d 823, 841-842 (C.D. Cal. 1998)).
When disclosures of private and embarrassing facts are at issue, many jurisdictions allow a person who believes his personal privacy has been invaded to bring a public disclosure of private facts invasion of privacy claim. See Cox Broadcasting Co. v. Cohn, 420 U.S. 469 (1975).
Bartnicki,121 S.Ct. at 1768.
Diaz v. Oakland Tribune, Inc., 188 Cal. Rptr. 762 (1st Dist. 1983).
Nebraska Press Association v. Stewart, 427 U.S. 539, 568-70 (1976); CBS, Inc. v. Davis, 114 S. Ct. 912, 914 (1994).
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