Date: Sun, 30 Aug 92 9:44:59 EDT
From: Adrienne Voorhis <voorhis@aecom.yu.edu>
Newsgroups: comp.dcom.telecom
Subject: Re: Monitoring of Broadcasts
Organization: TELECOM Digest
X-Submissions-To: telecom@eecs.nwu.edu
X-Administrivia-To: telecom-request@eecs.nwu.edu
X-Telecom-Digest: Volume 12, Issue 671, Message 9 of 9

Recently I, (<voorhis@aecom.yu.edu > Adrienne Voorhis) asked:

> Could someone please explain how the federal government can allow
> you to legally monitor such broadcasts but can stop you from
> disclosing what was heard?  

I appreciate the responses I received and found them helpful, but I
don't think they sufficiently answered my question.

First of all, I am not a First Amendment absolutist.  I am aware of
and fully support just about all of the restrictions to the "freedom
of speech" clause that the Supreme Court has promulgated, such as
libel laws.

Second, I am not questioning that the state can preserve the
confidentiality of these broadcasts.  I merely question how, on the
one hand, the government can classify these broadcasts as being in the
"public domain" by freely allowing private citizens to monitor them,
yet on the other hand prohibit them from ever being discussed.

Steve Forrette <steve@wrq.com> responded:

> I do know that there is a common misconception that the various
> amendments prevent any restrictions whatsoever on certain activities.

Agreed.

> There are many cases where "lawfully obtained" information can be
> legally discussed:

>  -  The tried and true "fire in a theater" example.
>  -  Trade secrets that you legally obtain in the course of employment.

These examples demonstrate only that the First Amendment is not
absolute.  I don't think they really answer my question.

There is no prohibition against telling people there is a fire in a
theater, only against *yelling* "fire" in a crowded theater when the
person knows that it's *false*.  This is merely a "time, place, and
manner restriction" on knowingly false and dangerous speech designed
solely to create a public safety hazard.  Here, I am talking about
presumably true information that a private citizen is being prohibited
from discussing, even for legitimate purposes of public debate.

The trade secrets example is more to the point because it shows that
speech can sometimes be restricted based on content.  However the
analogy fails because the restriction is only enforceable because the
employee voluntarily agreed in advance not to disclose this
information as part of a written contract with his employer.  A news
reporter scanning the airwaves has not entered into any such
agreement.

Michael A. Covington <mcovingt@athena.cs.uga.edu> responded:
 
> Hmmm?  Never heard of confidentiality?

Of course I have.  However, I am also aware that even when the press
publishes confidential information -- even secret goverment
information -- they cannot be punished for it as long as they
committed no crime in obtaining it and reasonably believed the
information is correct.  The government went after Daniel Ellsburg for
disclosing the Pentagon Papers, not the {New York Times}.

>  The law simply imposes a kind of confidentiality on people who,
>  through technological pursuits, come into possession of other people's
>  private messages.  Just like telephone repair personnel, mail
>  carriers, etc.

I agree that the law should be able to classify certain information as
confidential and prohibit private citizens from using electronic
devices to obtain it in the first place (such as the person who uses
electronic eavesdropping equiptment to overhear a private conversation
inside someones home).  I also agree that the state can prohibit those
who service communications media, such as telephone repair personnel
and mail carriers, from disclosing this information outside the scope
of their employment, to ensure the privacy of the media itself.

But these legitimate restrictions all treat the communications as
confidential in the first place, unlike the one I question that gives
private citizens the right to monitor them.

> The Electronic Communications Privacy Act of 1986 goes further: it
> forbids _listening_ to private radio communications (cellular phones,
> ship-to-shore phones, etc.).  But it also makes it clear that

I believe this act is defensible, because it *classifies* certain
communications as confidential before it restricts their
dissemination.  I don't question that the state can say you can't
report conversations concerning private matters that you shouldn't be
hearing in the first place.

The whole purpose of the "freedom of speech" clause is to allow the
citizens to freely discuss almost any matter without fear of
government reprisal.  The government can obviously create certain
carefully deleneated exceptions, such as those I have agreed to above,
based on overriding public policy concerns.  But it is fundamentally
unfair, and I believe inconsistent with the First Amendment, for the
state to say to private citizens and the press "Go ahead and listen,"
but then say "You can never talk about it."

Don't worry, Pat.  I don't plan to continually stand on a soapbox and
reply to future posts with impassioned comments on freedom of speech.
I am simply curious if any TD subscribers are aware of a reasoned
basis, or court approval, for the particular restriction on freedom of
speech that this particular restriction imposes.


Adrienne Voorhis	Albert Einstein College of Medicine
Bronx, New York		Just MY opinion....


[Moderator's Note: I do not believe you are correct in saying you can
'state there is a fire in a theatre as long as you do not shout it.'
If this were true, then you should be able to make false utterances to
911 with impunity. As a matter of fact the law in most (all?) states
says that to declare an emergency exists when there is no emergency is
a crime. To call 911 because you like to see and hear fire trucks
racing down the street is a crime; your free speech rights don't take
priority here. In actual practice here in Chicago, ONE false alarm is
usually written off as 'mistaken citizen trying to be helpful', but
subsequent false alarms will get you sued by the City of Chicago.  PAT]