Companion website for
COMPARATIVE MEDIA LAW & ETHICS
by TIM CROOK
to be published by Routledge on 15th December 2009
For details of the book, please visit Routledge.
Author's profile at Goldsmiths, University of London
Bartnicki et al V Vopper aka Williams et al
US Supreme Court 2001
Illegal phone-tape but public interest and First Amendment Protection for Media Disclosure
1. Bartnicki and Vane were the chief teachers’ union negotiator and union president whose cell-phone conversation was unlawfully intercepted and recorded during a contentious collective-bargaining dispute against Wyoming West Valley High School in Pennsylvania and the local school board.
2. At one point Vane was heard to say: “If they’re not gonna move for three percent, we’re gonna have to go to their, their homes . . . To blow off their front porches, we’ll have to do some work on some of those guys. (PAUSES). Really, uh, really and truthfully because this is, you know, this is bad news.”
3. Vopper, a radio commentator who had been critical of the union in the past, played a tape of the intercepted conversation on his public affairs talk show. Another station also broadcast the tape, and local newspapers published its contents.
4. Key issues to be decided: Did the protection of the petitioners’ right to privacy through federal and state statutes, making it unlawful to intercept telecommunications, trump First Amendment protection for the contents of the call? Did the media respondents lose their First Amendment protection because they knew the tape had been illegally intercepted?
5. The Supreme Court decided that the First Amendment protected the disclosures made by the media. It was accepted that the interception was unlawful but the media played no part in illegal tapping, their access to the information was obtained lawfully and the conversations dealt with a matter of public concern.
6. Justice Stevens referred to the famous Pentagon Papers case of 1971 (New York Times Co v United States) when the Supreme Court upheld the press’ right to publish information of great public interest stolen by a third party.
7. When considering the federal law on phone-tapping the court observed that it would be remarkable to hold that speech by a law-abiding possessor of information can be suppressed in order to deter conduct by a non-law-abiding third party. Congress never thought prohibiting public interest disclosures would deter illegal interceptions.
8. Privacy gives way when balanced against the interest in publishing matters of public importance. A stranger’s illegal conduct is not sufficient to remove the First Amendment shield from speech about a matter of public concern.
9. Sullivan v New York Times 1964 established a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide open; neither factual error, nor defamatory content, nor a combination of the two is sufficient to pierce the First Amendment shield from criticism of official conduct.
While this is an impressively liberal ruling in comparison to UK media law, it should be emphasized that the US Supreme Court has refused to answer categorically whether the publication of truthful information may ever be punished consistent with the First Amendment.
