1999 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

12-27-1999

Bartnicki v. Vopper

Precedential or Non-Precedential:

Docket 98- 7156

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Recommended Citation

"Bartnicki v. Vopper" (1999). 1999 Decisions. Paper 327.

http://digitalcommons.law.villanova.edu/thirdcircuit_1999/327
Filed December 27, 1999 

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

NO. 98-7156 

GLORIA BARTNICKI and ANTHONY F. KANE, JR. 

v. 

FREDERICK W. VOPPER, a/k/a FRED WILLIAMS; 

KEYMARKET OF NEPA, INC., d/b/a WILK RADIO; 

LACKAZERNE INC., d/b/a WGBI RADIO; JANE DOE; 

JOHN DOE; JACK YOCUM 

 Frederick W. Vopper, a/k/a Fred Williams; 

 Keymarket of Nepa, Inc., d/b/a WILK Radio; 

 Lackazerne, Inc., d/b/a WGBI Radio; Jack 

 Yocum, 

 Appellants 

UNITED STATES OF AMERICA, 

 Intervenor 

On Appeal from the United States District Court 

for the Middle District of Pennsylvania 

(D.C. Civil No. 94-cv-01201) 

District Judge: Hon. Edwin M. Kosik 

Argued October 5, 1998 

Before: SLOVITER and COWEN, Circuit Judges, 

and POLLAK,* District Judge 

_________________________________________________________________ 

* Hon. Louis H. Pollak, United States District Court for the Eastern 

District of Pennsylvania, sitting by designation. 
(Filed December 27, 1999) 

 Donald H. Brobst (Argued) 

 Rosenn, Jenkins & Greenwald, 

 L.L.P. 

 Wilkes-Barre, Pennsylvania 18711 

 Attorneys for Appellants 

 Raymond P. Wendolowski (Argued) 

 Cynthia R. Vullo 

 Scott C. Gartley 

 Koff, Wendolowski, Ferguson & 

 Mangan, P.C. 

 Wilkes-Barre, Pennsylvania 

 18701-2721 

 Attorneys for Appellees 

 Frank J. Aritz (Argued) 

 Kingston, Pennsylvania 18704 

 Attorney for Appellant, 

 Jack Yocum 

 Frank W. Hunger 

 Assistant Attorney General 

 David M. Barasch 

 United States Attorney 

 Douglas N. Letter 

 Scott R. McIntosh 

 Attorneys, Appellate Staff 

 Civil Division, Department of Justice 

 Washington, D.C. 20530 

 Attorneys for Intervenor, 

 United States 

 2 
 Mark P. Widoff 

 Pennsylvania State Education 

 Association 

 Harrisburg, Pennsylvania 17105 

 Jeremiah A. Collins 

 John M. West 

 Bredhoff & Kaiser, P.L.L.C. 

 Washington, D.C. 20036 

 Attorneys for Amicus, 

 Pennsylvania State Education 

 Association 

OPINION OF THE COURT 

SLOVITER, Circuit Judge. 

At issue is whether the First Amendment precludes 

imposition of civil damages for the disclosure of portions of 

a tape recording of an intercepted telephone conversation 

containing information of public significance when the 

defendants, two radio stations, their reporter, and the 

individual who furnished the tape recording, played no 

direct or indirect role in the interception. 

I. 

BACKGROUND 

A. 

From the beginning of 1992 until the beginning of 1994, 

Wyoming Valley West School District was in contract

negotiations with the Wyoming Valley West School District 

Teachers' Union (the "Teachers' Union") over the terms of 

the teachers' new contract. The negotiations, which were 

markedly contentious, generated significant public interest 

and were frequently covered by the news media. 

Plaintiffs Gloria Bartnicki and Anthony F. Kane, Jr., as 

well as defendant Jack Yocum, all were heavily involved in 

 3 
the negotiating process. Bartnicki was the chief negotiator 

on behalf of the Teachers' Union. Kane, a teacher at 

Wyoming Valley West High School, served as president of 

the local union. Yocum served as president of the Wyoming 

Valley West Taxpayers' Association, an organization formed 

by local citizens for the sole purpose of opposing the 

Teachers' Union's proposals. 

In May of 1993, Bartnicki, using her cellular phone, had 

a conversation with Kane. They discussed whether the 

teachers would obtain a three-percent raise, as suggested 

by the Wyoming Valley West School Board, or a six-percent 

raise, as suggested by the Teachers' Union. In the course of 

their phone conversation, Kane stated: 

 If they're not going to 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 . . . . Really, uh, really and 

 truthfully, because this is, you know, this is bad news 

 (undecipherable) The part that bothers me, they could 

 still have kept to their three percent, but they're again 

 negotiating in the paper. This newspaper report knew 

 it was three percent. What they should have said,`we'll 

 meet and discuss this.' You don't discuss the items in 

 public. 

App. at 35-36. Bartnicki responded, "No," and, Kane

continued, "You don't discuss this in public . . . . 

Particularly with the press." App. at 36. 

This conversation, including the statements quoted 

above, was intercepted and recorded by an unknown 

person, and the tape left in Yocum's mailbox. Yocum

retrieved the tape, listened to it, and recognized the voices 

of Bartnicki and Kane. He then gave a copy of the tape to 

Fred Williams, also known as Frederick W. Vopper, of WILK 

Radio and Rob Neyhard of WARM Radio, both local radio 

stations. Williams repeatedly played part of the tape on the 

air as part of the Fred Williams Show, a radio news/public 

affairs talk show which is broadcast simultaneously over 

WILK Radio and WGBI-AM. The tape was also aired on 

some local television stations and written transcripts were 

published in some newspapers. 

 4 
B. 

Bartnicki and Kane sued Yocum, Williams, WILK Radio, 

and WGBI Radio (hereafter "media defendants") under both 

federal and state law. They based their federal claims on 

Title III of the Omnibus Crime Control and Safe Streets Act 

of 1968, as amended by the Electronic Communications 

Privacy Act of 1986, 28 U.S.C. S 2510 et seq., and their 

state claims on the Pennsylvania Wiretapping and 

Electronic Surveillance Control Act, 18 Pa. Cons. Stat. 

S 5701 et seq. As relief, Bartnicki and Kane sought (1) 

actual damages in excess of $50,000, (2) statutory damages 

under 18 U.S.C. S 2520(c)(2), (3) liquidated damages under 

18 Pa. Cons. Stat. S 5725(a)(1), (4) punitive damages, and 

(5) attorneys' fees and costs. 

Bartnicki, Kane, and the defendants each moved for 

summary judgment. The District Court denied these 

motions on June 14, 1996 and denied defendants' motion 

to reconsider on November 8, 1996, specifically holding that 

imposing liability on the defendants would not violate the 

First Amendment. 

The District Court subsequently certified two questions 

as controlling questions of law: "(1) whether the imposition 

of liability on the media Defendants under the [wiretapping 

statutes] solely for broadcasting the newsworthy tape on 

the Defendant Fred Williams' radio news/public affairs 

program, when the tape was illegally intercepted and 

recorded by unknown persons who were not agents of the 

Defendants, violates the First Amendment; and (2) whether 

imposition of liability under the aforesaid [wiretapping 

statutes] on Defendant Jack Yocum solely for providing the 

anonymously intercepted and recorded tape to the media 

Defendants violates the First Amendment." App. at 388. 

Williams, WILK Radio, and WGBI Radio subsequently 

petitioned for permission to appeal. Yocum filed an answer 

to the petition in which he joined the media defendants' 

request that we hear this appeal. We granted the petition 

by order dated February 26, 1998. The Pennsylvania State 

Education Association submitted a brief as amicus curiae in 

support of the appellees, and the United States has

intervened as of right pursuant to 28 U.S.C. S 2403. 

 5 
C. 

The District Court had jurisdiction to consider claims 

based on the Omnibus Crime Control and Safe Streets Act 

of 1968 pursuant to 28 U.S.C. S 1331. It had supplemental 

jurisdiction pursuant to 28 U.S.C. S 1367 to consider 

claims based on the Pennsylvania Wiretapping and 

Electronic Surveillance Control Act. We have appellate 

jurisdiction to review the District Court's substantive 

determination pursuant to 28 U.S.C. S 1292(b). 

The scope of our review in a permitted interlocutory 

appeal is limited to questions of law raised by the

underlying order. We are not limited to answering the 

questions certified, however, and may address any issue 

necessary to decide the appeal. See Dailey v. National 

Hockey League, 987 F.2d 172, 175 (3d Cir. 1993). 

We review the grant or denial of a motion for summary 

judgment de novo. See H.K. Porter Co. v. Pennsylvania Ins. 

Guaranty Ass'n, 75 F.3d 137, 140 (3d Cir. 1996). We are 

"required to apply the same test the district court should 

have utilized initially," to view inferences to be drawn from 

the underlying facts in the light most favorable to the party 

opposing the motion, and to take the non-movant's 

allegations as true whenever these allegations conflict with 

those of the movant. Goodman v. Mead Johnson & Co., 534 

F.2d 566, 573 (3d Cir. 1976). 

D. 

The Federal Omnibus Crime Control and Safe Streets Act 

of 1968 (the "Federal Wiretapping Act") provides in relevant 

part: 

 (1) Except as otherwise specifically provided in this 

 chapter any person who -- 

 . . . 

 (c) intentionally discloses, or endeavors to discl ose, 

 to any other person the contents of any wire, oral, or 

 electronic communication, knowing or having reason 

 to know that the information was obtained through 

 the interception of a wire, oral, or electronic 

 communication in violation of this subsection; 

 6 
 (d) intentionally uses, or endeavors to use, the 

 contents of any wire, oral, or electronic 

 communication, knowing or having reason to know 

 that the information was obtained through the 

 interception of a wire, oral, or electronic 

 communication in violation of this subsection . . . 

 shall be punished as provided in subsection (4) or shall 

 be subject to suit as provided in subsection (5). 

18 U.S.C. S 2511. It continues: 

 (a) In general. -- Except as provided in section 

 2511(2)(a)(ii), any person whose wire, oral, or electronic 

 communication is intercepted, disclosed, or 

 intentionally used in violation of this chapter may in a 

 civil action recover from the person or entity which 

 engaged in the violation such relief as may be 

 appropriate. 

18 U.S.C. S 2520. The Federal Wiretapping Act thus creates 

civil and criminal causes of action against those who 

intentionally use or disclose to another the contents of a 

wire, oral, or electronic communication, knowing or having 

reason to know that the information was obtained in

violation of the statute. 

The Pennsylvania Wiretapping and Electronic 

Surveillance Control Act (the "Pennsylvania Wiretapping 

Act") is similar. It provides: 

 Except as otherwise provided in this chapter, a person 

 is guilty of a felony of the third degree if he: 

 . . . 

 (2) intentionally discloses or endeavors to di sclose to 

 any other person the contents of any wire, electronic or 

 oral communication, or evidence derived therefrom, 

 knowing or having reason to know that the information 

 was obtained through the interception of a wire, 

 electronic or oral communication; or 

 (3) intentionally uses or endeavors to use the 

 contents of any wire, electronic or oral communication, 

 or evidence derived therefrom, knowing or having 

 reason to know that the information was obtained 

 7 
 through the interception of a wire, electronic or oral 

 communication. 

18 Pa. Cons. Stat. S 5703. It further provides: 

 (a) Cause of action. -- Any person whose wire, 

 electronic or oral communication is intercepted, 

 disclosed or used in violation of this chapter shall have 

 a civil cause of action against any person who 

 intercepts, discloses or uses or procures any other 

 person to intercept, disclose or use, such 

 communication . . . . 

18 Pa. Cons. Stat. S 5725. The Pennsylvania Wiretapping 

Act thus also creates civil and criminal causes of action 

based on the knowing or negligent use or disclosure of 

illegally intercepted material. We refer to the federal and 

state statutes at issue here as "The Wiretapping Acts." 

Both Acts also explicitly authorize the recovery of civil 

relief. The Federal Wiretapping Act provides that a court 

may "assess as damages whichever is the greater of -- 

 (A) the sum of the actual damages suffered by the 

 plaintiff and any profits made by the violator as a 

 result of the violation; or 

 (B) statutory damages of whichever is the grea ter of 

 $100 a day for each day of violation or $10,000." 

18 U.S.C. S 2520(c)(2). The Pennsylvania Wiretapping Act 

specifies that a successful plaintiff "shall be entitled to 

recover from any such person: 

 (1) Actual damages, but not less than liquidated 

 damages computed at the rate of $100 a day for each 

 day of violation, or $1,000, whichever is higher. 

 (2) Punitive damages. 

 (3) A reasonable attorney's fee and other litigati on 

 costs reasonably incurred." 

18 Pa. Cons. Stat. S 5725(a). 

 8 
II. 

DISCUSSION 

A. 

As the District Court acknowledged and the parties do 

not dispute, the media defendants neither intercepted nor 

taped the conversation between Bartnicki and Kane. 

Indeed, the record does not disclose how or by whom the 

conversation was intercepted. The media defendants argued 

before the District Court that these facts preclude a court 

from finding them liable under the Wiretapping Acts. The 

District Court disagreed. It concluded that, "a violation of 

these acts can occur by the mere finding that a defendant 

had a reason to believe that the communication that he 

disclosed or used was obtained through the use of an illegal 

interception." Bartnicki v. Vopper, No. 94-1201, slip op. at 

5 (M.D. Pa. June 17, 1996). It further opined that such an 

interpretation of the statute "adheres to the purpose of the 

act which was to protect wire and oral communications and 

an individual's privacy interest in such." Id. The District 

Court concluded that genuine disputes of material fact 

remain regarding (1) whether the Bartnicki-Kane 

conversation was illegally intercepted, and if so (2) whether 

any or all of the defendants knew or had reason to know 

that that conversation was illegally intercepted. See id. at 5, 

10. The parties do not challenge these holdings on appeal. 

Hence, this case does not involve the prohibitions of the 

Wiretapping Acts against the actual interception of wire 

communications. Nor does it involve any application of the 

Acts' criminal provisions. Rather, this case focuses 

exclusively on the portions of the Wiretapping Acts that 

create causes of action for civil damages against those who 

use or disclose intercepted communications and who had 

reason to know that the information was received through 

an illegal interception. 

The defendants argue that applying the damages 

provision of the Wiretapping Acts to hold them liable for 

disclosing the Bartnicki-Kane conversation violates the 

First Amendment. They contend that this case is controlled 

 9 
by the Supreme Court's decisions in a series of cases 

addressing the tension between the First Amendment and 

the right to privacy. 

In the first of these cases, Cox Broadcasting Corp. v. 

Cohn, 420 U.S. 469 (1975), the Court considered a private 

right of action created by a Georgia statute making it a 

"misdemeanor to publish or broadcast the name or identity 

of a rape victim." Id. at 472. The Court was asked to decide 

whether Georgia could impose civil liability on a television 

broadcasting company, among others, for accurately 

broadcasting the name of a deceased, 17-year-old rape 

victim where the reporter obtained the information from 

official court records open to public inspection. 

In the next case, Landmark Communications, Inc. v. 

Virginia, 435 U.S. 829 (1978), the Court reviewed a Virginia 

statute that both provided for the confidentiality of judicial 

disciplinary proceedings and made it unlawful to divulge 

the identity of a judge subject to such proceedings prior to 

the filing of a formal complaint with the state's highest 

court. The Supreme Court was asked to decide whether 

Virginia could criminally prosecute a newspaper for

publishing accurate information about such proceedings 

where the newspaper received the information from a

participant in the proceedings who had the right to receive 

the information but not the right to divulge it. See id. at 

830. 

Finally, in Smith v. Daily Mail Publishing Co., 443 U.S. 97 

(1979), the Court considered a West Virginia statute 

"making it a crime for a newspaper to publish, without the 

written approval of the juvenile court, the name of any 

youth charged as a juvenile offender." Id. at 98. The Court 

was asked to decide whether West Virginia could prosecute 

two newspapers for publishing the name of a 14-year-old 

student who was accused of shooting and killing a 15-yearold classmate at the local junior high school. The 

newspapers had obtained the student's name by 

interviewing witnesses at the school. 

The Supreme Court concluded that each of these 

attempts to punish or deter the press's publication of 

truthful information was unconstitutional. The Smith Court, 

 10 
in summarizing the Court's past cases, read them as

suggesting at least two propositions: (1) "state action to 

punish the publication of truthful information seldom can 

satisfy constitutional standards," and (2) "if a newspaper 

lawfully obtains truthful information about a matter of 

public significance then state officials may not 

constitutionally punish publication of the information, 

absent a need to further a state interest of the highest 

order." 491 U.S. at 102, 103; accord Florida Star v. B.J.F., 

491 U.S. 524, 533-37 (1989) (adopting and explaining the 

justification for the second Smith proposition). 

The defendants contend that the information disclosed 

about the Bartnicki-Kane conversation was lawfully 

obtained within the meaning of the Smith decision because 

the defendants in this case neither participated in the 

presumed interception nor violated any law by receiving the 

information. They conclude that the Wiretapping Acts may 

not be applied to hold them liable without first meeting the 

test of strict scrutiny. 

Bartnicki and Kane respond by arguing that the 

information at issue here was unlawfully obtained because 

the original interception presumably was illegal. They 

conclude that applying the Acts to hold the defendants 

liable is constitutional without subjecting those statutes to 

any level of First Amendment scrutiny. The parties thus 

assume that we should determine the constitutionality of 

the Wiretapping Acts by first determining whether the 

information disclosed was "lawfully" or "unlawfully" 

obtained. 

Although we are cognizant of the importance of the Cox, 

Landmark, and Smith cases as background, we decline to 

read Smith as controlling here. The Supreme Court has 

explicitly repudiated any suggestion that Smith answers the 

question whether a statute that limits the dissemination of 

information obtained by means of questionable legality is 

subject to First Amendment scrutiny. In Florida Star, the 

Court stated, "The [Smith] principle does not settle the issue 

whether, in cases where information has been acquired 

unlawfully by a newspaper or by a source, government may 

ever punish not only the unlawful acquisition, but the 

ensuing publication as well." 491 U.S. at 535 n.8. Similarly, 

 11 
the Smith Court was careful to note that its holding did not 

reach the issue of unlawful press access. See 443 U.S. at 

105. 

Moreover, the Supreme Court's practice of narrowly 

circumscribing its holdings in this area strongly suggests 

that a rule for undecided cases should not be derived by 

negative implication from its reported decisions. The 

defendant in Landmark urged the Court to adopt a blanket 

rule, protecting the press from any liability for truthfully 

reporting information concerning public officials and their 

public duties, but the Supreme Court refused to do so. See 

435 U.S. at 838. Instead it considered the very narrow 

question: "whether [a state] may subject persons, including 

newspapers, to criminal sanctions for divulging information 

regarding proceedings before a state judicial commission 

which is authorized to hear complaints as to judges' 

disability or misconduct, when such proceedings are

declared confidential by the State Constitution and

statutes." Id. at 830. 

Similarly, the Florida Star Court refused"appellant's 

invitation to hold broadly that truthful publication may 

never be punished consistent with the First Amendment." 

491 U.S. at 532. It stated: "Our cases have carefully 

eschewed reaching this ultimate question, mindful that the 

future may bring scenarios which prudence counsels our 

not resolving anticipatorily. . . . We continue to believe that 

the sensitivity and significance of the interests presented in 

clashes between First Amendment and privacy rights 

counsel relying on limited principles that sweep no more 

broadly than the appropriate context of the instant case." 

Id. at 532-33. 

In keeping with the Supreme Court's approach to 

deciding these illustrative cases, we will resolve the present 

controversy not by mechanically applying a test gleaned 

from Cox and its progeny, but by reviewing First 

Amendment principles in light of the unique facts and 

circumstances of this case. 

B. 

The District Court based its conclusion that the damages 

provision of the Wiretapping Acts may constitutionally be 

 12 
applied to penalize the defendants' conduct primarily on the 

Supreme Court's decision in Cohen v. Cowles Media Co., 

501 U.S. 663 (1991). The District Court interpreted that 

decision as standing for the proposition that a generally 

applicable law that neither singles out the press for special 

burdens nor purposefully restricts free expression does not 

offend the First Amendment. See Bartnicki, slip op. at 8 

("Generally applicable laws `do not offend the First 

Amendment simply because their enforcement against the 

press has incidental effects on its ability to gather and 

report the news.' " (quoting Cohen v. Cowles Media Co., 501 

U.S. 663, 669 (1991))). The District Court emphasized 

language from the Cohen opinion in which the Supreme 

Court stated, " `[i]t is . . . beyond dispute that the publisher 

of a newspaper has no special immunity from the 

application of general laws. He has no special privilege to 

invade the rights and liberties of others.' " Bartnicki, slip op. 

at 8 (quoting Cohen, 501 U.S. at 670). 

After reviewing the Federal and Pennsylvania Wiretapping 

Acts, the District Court found that neither Act targets or 

singles out the press. The District Court also opined that 

these laws are not "specifically designed to chill free 

speech." Id. at 7. Based on this finding, it concluded that 

"both acts are matters of general applicability" and, without 

further analysis, denied defendants' motion for summary 

judgment on the basis of the First Amendment. 

There is reason to question whether the damages 

provisions of the Acts are properly categorized as generally 

applicable laws. Arguably, that term should be reserved for 

laws that directly regulate conduct rather than speech. See 

infra at 15. Moreover, it may well be that be that by 

banning the disclosure of certain information, the damages 

provisions impose a disproportionate burden on the press. 

Indeed, we would not be surprised to find that a prohibition 

on disclosure falls more heavily on the press, which is in 

the business of disseminating information, than it does on 

ordinary citizens whose opportunities for spreading

information are more limited. 

We need not resolve that question, however, because we 

conclude that, by suggesting that generally applicable laws 

do not require First Amendment scrutiny when applied to 

 13 
the press, the District Court read the cited portions of 

Cohen too broadly. In Cohen, the plaintiff, who was actively 

associated with the election staff of a gubernatorial 

candidate, offered to provide two newspapers with some 

information concerning the candidate's opponent in 

exchange for a promise that the newspapers would not use 

his name in any resulting story. After having made the 

promise and secured the information, each newspaper

proceeded to publish a story identifying Cohen as the 

source of the information and highlighting his role in the 

gubernatorial campaign. Cohen lost his job the day the 

stories ran. He then sued the publishers of the newspapers 

in state court and recovered damages under a theory of 

promissory estoppel. The publishers appealed, arguing that 

holding them liable for their breached promises would 

violate the First Amendment. 

It is in the context of rejecting this argument that the 

Supreme Court stated, "[G]enerally applicable laws do not 

offend the First Amendment simply because their 

enforcement against the press has incidental effects on its 

ability to gather and report the news." Cohen , 501 U.S. at 

669. The Court explained that "enforcement of such general 

laws against the press is not subject to stricter scrutiny 

than would be applied to enforcement against other 

persons or organizations." Id. at 670. 

The Cohen opinion thus instructs that a law of general 

applicability, which neither targets nor imposes 

disproportionate burdens upon the press, is enforceable 

against the press to the same extent that it is enforceable 

against individuals or organizations. The question remains 

whether the damages provisions of the Wiretapping Acts 

may constitutionally be applied to penalize individuals or 

organizations for disclosing material they know or have 

reason to know was illegally intercepted who had no part in 

the interception. 

C. 

In order to determine whether the provisions for civil 

sanctions from the Wiretapping Acts may constitutionally 

be applied to penalize defendants' disclosure, we must first 

 14 
decide what degree of First Amendment scrutiny should be 

applied. 

The United States argues that the Federal Wiretapping 

Act is subject to intermediate rather than strict scrutiny. It 

bases this contention on two subsidiary assertions: (1) that 

these are "general law[s] that impose[ ] only incidental 

burdens on expression" and (2) that "to the extent that Title 

III restricts speech in particular cases, it does so in an 

entirely content-neutral fashion." United States' Br. at 22. 

It states that "[a] statute satisfies intermediate scrutiny, if 

it furthers an important or substantial governmental 

interest, if the governmental interest is unrelated to the 

suppression of free expression, and if the incidental 

restriction on speech is not unnecessarily great." United 

States' Br. at 11-12. We assume that the United States' 

arguments apply equally to the Pennsylvania Wiretapping 

Act, which is substantially similar to the Federal 

Wiretapping Act. 

We first consider the United States' argument that the 

disclosure provisions of the Wiretapping Acts merit only 

intermediate scrutiny because they impose only incidental 

burdens on expression. In support, the United States cites 

a series of Supreme Court decisions, beginning with United 

States v. O'Brien, 391 U.S. 367 (1968). 

O'Brien was arrested and convicted for burning his draft 

card on the steps of the South Boston Courthouse. On 

appeal, O'Brien argued that the federal law, making it an 

offense to "forge[ ], alter[ ], knowingly destroy[ ], knowingly 

mutilate[ ], or in any manner change[ ] . . . such [a] 

certificate," was unconstitutional. Id. at 370 (italics 

omitted). The Court of Appeals for the First Circuit agreed 

that this provision unconstitutionally abridged the freedom 

of speech. 

The Supreme Court, however, reversed. It opined that the 

statute "on its face deals with conduct having no 

connection with speech. It prohibits the knowing 

destruction of certificates issued by the Selective Service 

System, and there is nothing necessarily expressive about 

such conduct." Id. at 375.1 The Supreme Court nonetheless 

_________________________________________________________________ 

1. Respected commentators have taken issue with this holding in 

O'Brien. See, e.g., Lawrence H. Tribe, American Constitutional Law, 

S 312-6 at 824-25 (2d ed. 1988). 

 15 
recognized that O'Brien had burned his draft card as a form 

of protest against war. Assuming for the sake of argument 

that "the alleged communicative element in O'Brien's 

conduct [was] sufficient to bring into play the First 

Amendment," the Supreme Court held that the statute was 

still a permissible regulation. Id. at 376. It reasoned that 

"when `speech' and `nonspeech' elements are combined in 

the same course of conduct, a sufficiently important 

governmental interest in regulating the nonspeech element 

can justify incidental limitations on First Amendment 

freedoms." Id. The Court stated that such"a government 

regulation is sufficiently justified if it is within the 

constitutional power of the Government; if it furthers an 

important or substantial governmental interest; if the 

governmental interest is unrelated to the suppression of 

free expression; and if the incidental restriction on alleged 

First Amendment freedoms is no greater than essential to 

the furtherance of that interest." Id. at 377. 

In O'Brien and its progeny, the Supreme Court 

distinguished between "expressive conduct protected to 

some extent by the First Amendment" and oral or written 

expression, which is fully protected by that amendment. 

Clark v. Community for Creative Non-Violence, 468 U.S. 288, 

293 (1984). "[C]onduct that is intended to be 

communicative and that, in context, would reasonably be 

understood by the viewer to be communicative" is 

"[s]ymbolic expression," otherwise known as expressive 

conduct. Id. at 294. The cases the United States cites in 

addition to O'Brien also focus on the permissibility of 

regulating expressive conduct. See Barnes v. Glen Theater, 

Inc., 501 U.S. 560 (1991) (Indiana statute prohibiting 

complete nudity in public places); Arcara v. Cloud Books, 

Inc., 478 U.S. 697 (1986) (New York statute authorizing 

closure of building found to be a public health nuisance); 

United States v. Albertini, 472 U.S. 675 (1985) (federal 

statute making it unlawful to reenter a military base after 

having been barred by the commanding officer); Clark, 468 

U.S. at 289 (National Park Service regulation prohibiting 

camping in Lafayette Park); cf. R.A.V. v. City of St. Paul, 505 

U.S. 377 (1992) (Minnesota statute prohibiting display of 

certain objects, including a burning cross or Nazi swastika). 

 16 
By citing this line of cases in support of its position that 

intermediate scrutiny applies here, the United States 

apparently suggests that defendants' actions in disclosing 

the contents of the Bartnicki-Kane conversation are

properly considered "expressive conduct" rather than 

speech. If this is the thrust of the government's citations, it 

is not persuasive. The acts on which Bartnicki and Kane 

base their complaint are Yocum's "intentionally disclos[ing 

a] tape to several individuals and media sources"2 and the 

media defendants' "intentionally disclos[ing] and 

publish[ing] to the public the entire contents of the private 

telephone conversation between Bartnicki and Kane." App. 

at 149. If the acts of "disclosing" and "publishing" 

information do not constitute speech, it is hard to imagine 

what does fall within that category, as distinct from the 

category of expressive conduct. 

We have no doubt that it is possible to identify some act 

by the media defendants in the course of preparing the 

broadcasts during which the tape was disclosed that falls 

within our ordinary understanding of the term conduct. 

However, this fact does not alter the analysis. The Supreme 

Court has observed, "It is possible to find some kernel of 

expression in almost every activity a person undertakes -- 

for example, walking down the street or meeting one's 

friends at a shopping mall -- but such kernel is not 

sufficient to bring the activity within the protection of the 

First Amendment." Barnes, 501 U.S. at 570 (quoting Dallas 

v. Stanglin, 490 U.S. 19, 25 (1989)). Similarly, although it 

may be possible to find some kernel of conduct in almost 

every act of expression, such kernel of conduct does not 

take the defendants' speech activities outside the protection 

of the First Amendment. 

The United States nonetheless insists that intermediate 

scrutiny is appropriate because the statute, read as a 

whole, primarily prohibits conduct rather than speech. It 

notes that the prohibition in 18 U.S.C. S 2511(d) against 

_________________________________________________________________ 

2. The complaint also alleges that Yocum "obtained a tape of the 

surreptitiously recorded telephone conversation," App. at 149, but the 

complaint does not allege that the mere obtaining of the tape violates 

either statute. 

 17 
using or endeavoring to use intercepted material 

encompasses more than disclosure. The government asserts 

that it precludes, for example, a person or company from 

using intercepted material to develop a competing product, 

to craft a negotiating strategy, or to justify taking 

disciplinary action against an employee. United States' Br. 

at 22-23. 

The government cites no support for the surprising 

proposition that a statute that governs both pure speech 

and conduct merits less First Amendment scrutiny than 

one that regulates speech alone. We are convinced that this 

proposition does not accurately state First Amendment law. 

A statute that prohibited the "use" of evolution theory 

would surely violate the First Amendment if applied to 

prohibit the disclosure of Charles Darwin's writings, much 

as a law that directly prohibited the publication of those 

writings would surely violate that Amendment. 

Because the defendants' acts in this case -- the 

disclosure and broadcast of information -- contain no 

significant "nonspeech" elements, we need not decide 

whether this statute could properly be subjected to lesser 

scrutiny if applied to prohibit "uses" that do involve such 

"nonspeech" elements. We merely hold that, when a statute 

that regulates both speech and conduct is applied to an act 

of pure speech, that statute must meet the same degree of 

First Amendment scrutiny as a statute that regulates 

speech alone. 

The United States' second argument -- that intermediate 

scrutiny applies because the Acts are content-neutral -- is 

more persuasive. 

When the state uses a "content-based" regulation to

restrict free expression, particularly political speech, that 

regulation is subject to "the most exacting scrutiny." Boos 

v. Barry, 485 U.S. 312, 321 (1988); Phillips v. Borough of 

Keyport, 107 F.3d 164, 172 (3d Cir. 1997) (en banc). It will 

not be upheld unless the state can show that it"is 

necessary to serve a compelling state interest and that it is 

narrowly drawn to achieve that end." Boos, 485 U.S. at 

321; see also Phillips, 107 F.3d at 172 ("State regulations of 

speech that are not regarded as content neutral will be 

 18 
sustained only if they are shown to serve a compelling state 

interest in a manner which involves the least possible 

burden on expression."). 

By contrast, when the state places a reasonable"contentneutral" restriction on speech, such as a time, place and 

manner regulation, that regulation need not meet the same 

high degree of scrutiny. "Content-neutral" restrictions are 

valid under the First Amendment provided that they"are 

justified without reference to the content of the regulated 

speech, that they are narrowly tailored to serve a significant 

governmental interest, and that they leave open ample 

alternative channels for communication of information."3 

Clark, 468 U.S. at 293. 

We recognize that an argument could be made that the 

Wiretapping Acts are content-based. Ordinarily, the

distinction between permissible and impermissible 

regulation of speech depends on whether the law at issue 

regulates the substantive content of the speech (what is 

said) or whether it merely regulates the time, place, or 

manner of the speech (when, where, at what volume, and 

through which medium it is said). The former regulations 

are content-based while the latter are content-neutral. The 

essence of the distinction lies in the fact that, if the 

regulation were content-based, it would not be possible to 

determine whether a particular speech is prohibited

without referring to the substantive import of that

expression. 

The United States contends that the Wiretapping Acts are 

not content-based even in the literal sense referred to above 

because the Acts define the content that is prohibited by 

reference to the manner in which the information was 

acquired, rather than to its subject matter or viewpoint. We 

suspect that the mere fact that a regulation defines the 

category of content that is prohibited by reference to its 

source rather than its subject matter is unlikely to be 

sufficient to justify treating the regulation as contentneutral. For example, one might argue that a ban on the 

_________________________________________________________________ 

3. This standard is little different from that announced in O'Brien as 

governing conduct regulations that incidentally restrict expressive 

behavior. See Clark, 468 U.S. at 298. 

 19 
publication of information obtained through 

experimentation on human embryos would raise sufficient 

First Amendment concerns to merit heightened scrutiny, 

even if such experimentation were illegal. 

The Supreme Court's decision in Renton v. Playtime 

Theatres, Inc., 475 U.S. 41 (1985), however, suggests that 

we are not limited to a literal interpretation of the phrase 

"content-neutral" but may determine whether speech is 

content-neutral or content-based with reference to the 

government's proffered justification for the restriction. In 

Renton, the Supreme Court described "content-neutral" 

speech restrictions as those that "are justified without 

reference to the content of the regulated speech." Id. at 48 

(quoting Virginia Pharmacy Bd. v. Virginia Citizens

Consumer Council, Inc., 425 U.S. 748, 771 (1976)). We 

therefore turn to consider the purpose or purposes the 

Wiretapping Acts are meant to serve. 

The Senate Report describes the purposes of the Federal 

Wiretapping Act as: "(1) protecting the privacy of wire and 

oral communications, and (2) delineating on a uniform 

basis the circumstances and conditions under which the 

interception of wire and oral communications may be

authorized." S. Rep. No. 90-1079 (1968), reprinted in 1968 

U.S.C.C.A.N. 2112, 2153. Congress thus focused on privacy 

in adopting 18 U.S.C. S 2511, the provision that prohibits 

the interception of wire, oral, or electronic communications, 

as well as the use or disclosure of the contents of illegally 

intercepted communications. Congress did not, however, 

define the privacy interest that it intended the Act to 

protect. 

As commonly understood, the right to privacy 

encompasses both the right "to be free from unreasonable 

intrusions upon [one's] seclusion" and the right to be free 

from "unreasonable publicity concerning [one's] private life." 

Fultz v. Gilliam, 942 F.2d 396, 401 (6th Cir. 1991); see also 

Whalen v. Roe, 429 U.S. 589 (1977); Paul P. v. Verniero, 

170 F.3d 396 (3d Cir. 1999). The Sixth Circuit has opined 

that "[t]he prohibitions Congress incorporated into section 

2511(1) of Title III protect both these interestsfirst, by 

prohibiting the surreptitious interception of private 

communications in the first instance -- a highly offensive 

 20 
physical intrusion on the victim's private affairs-- and 

second, by circumscribing the dissemination of private 

information so obtained." Fultz, 942 F.2d at 401 (footnote 

omitted). The First Circuit has similarly suggested that by 

enacting Title III Congress recognized "that the invasion of 

privacy is not over when the interception occurs but is 

compounded by disclosure." Providence Journal Co. v. FBI, 

602 F.2d 1010, 1013 (1st Cir. 1979); see also Fultz, 942 

F.2d at 402 ("Each time the illicitly obtained recording is 

replayed to a new and different listener, the scope of the 

invasion widens and the aggrieved party's injury is

aggravated."). 

We have no doubt that the state has a significant interest 

in protecting the latter privacy right -- the right not to have 

intimate facts concerning one's life disclosed without one's 

consent. That right is a venerable one whose constitutional 

significance we have recognized in the past. See Paul P., 

170 F.3d at 401-02 (collecting cases). We also have no 

doubt that the prohibition on using or disclosing the 

contents of an illegally intercepted communication serves 

that interest by deterring the publicization of private facts. 

We are less certain, however, that the desire to protect 

the privacy interest that inheres in private facts is a 

content-neutral justification for restricting speech. The 

Supreme Court has instructed that "[l]isteners' reaction to 

speech is not a content-neutral basis for regulation." 

Forsyth County v. Nationalist Movement, 505 U.S. 123, 134 

(1992); accord Lind v. Grimmer, 30 F.3d 115, 117 (9th Cir. 

1994) ("Because the[ ] concerns [addressed by the statute] 

all stem from the direct communicative impact of speech, 

we conclude that section 11-216(d) regulates speech on the 

basis of its content.") As Justice O'Connor explained in 

Boos, "[r]egulations that focus on the direct impact of 

speech on its audience" -- the speech's "primary effects" -- 

are not properly treated as content-neutral under Renton. 

485 U.S. at 321 (Opinion of O'Connor, J.). 

Although the defendants do not argue that the 

regulations at issue are content-based, there is a not 

implausible argument that the injury associated with the 

disclosure of private facts stems from the communicative 

impact of speech that contains those facts, i.e. having 

 21 
others learn information about which one wishes they had 

remained ignorant. Thus, under the Supreme Court's 

jurisprudence, the injury associated with such disclosure 

constitutes a "primary effect" of the disfavored speech, 

rather than a "secondary effect." This reasoning might 

suggest that a statute that regulated expression for the 

purpose of protecting the right not to have private facts 

disclosed without permission would be subject to strict 

scrutiny as a content-based regulation. 

We do not decide whether the Wiretapping Acts would

indeed be properly categorized as content-based if justified 

on the basis of a need to prevent the disclosure of private 

facts because the United States for the most part eschews 

reliance on that justification in explaining the purpose of 

those acts. Instead, the United States argues that"the 

fundamental purpose of Title III is to maintain the

confidentiality of wire, electronic, and oral 

communications." United States' Br. at 33. It reasons that 

"prohibiting the use of illegally intercepted communication 

. . . `strengthen[s] subsection (1)(a),' the provision that 

imposes the underlying ban on unauthorized interception, 

`by denying the wrongdoer the fruits of his labor' and by 

eliminating the demand for those fruits by third parties." 

United States' Br. at 33. We are satisfied that this latter 

justification does not rely on the communicative impact of 

speech and, therefore, that the Acts are properly treated as 

content-neutral. 

D. 

Accordingly, we adopt the government's position that we 

should apply intermediate scrutiny in our analysis of the 

issue before us. In doing so, we must first fix upon an 

acceptable definition of the term "intermediate scrutiny."4 

_________________________________________________________________ 

4. In a recent article, the author uses the term" `intermediate scrutiny' 

to refer to a test that requires a state interest which is greater than 

legitimate but less than compelling and a fit between means and end 

that is not necessarily narrowly tailored but has more than just an 

incidental connection." Jay D. Wexler, Defending the Middle Way: 

Intermediate Scrutiny as Judicial Minimalism, 66 Geo. Wash. L. Rev. 298, 

300 n.15 (1998). 

 22 
Intermediate scrutiny is used by the Court in a wide variety 

of cases calling for some balancing. Thus, intermediate 

scrutiny has been applied to statutes that discriminate on 

the basis of gender. See Craig v. Boren, 429 U.S. 190, 200 

(1976) (holding that prohibiting sale of 3.2% beer to males 

under 21 and females under 18 did not "closely serve" goal 

of promoting traffic safety). It is the review standard used to 

examine whether an even-handed regulation promulgated 

for a legitimate public interest violates the dormant 

Commerce Clause. See Pike v. Bruce Church, Inc., 397 U.S. 

137, 142 (1970) (describing balancing test for state 

regulation); Southern Pac. Co. v. Arizona ex rel. Sullivan, 

325 U.S. 761 (1945) (invalidating limit on train length as 

not "plainly essential" to further state interest in safety). 

And in the First Amendment context, intermediate scrutiny 

has been applied to commercial speech cases, see Central 

Hudson Gas & Elec. Corp. v. Public Serv. Comm'n., 447 U.S. 

557, 566 (1980) (establishing four-part test for commercial 

speech regulation), and to examine the validity of time, 

place, and manner regulations, see United States v. Grace, 

461 U.S. 171 (1983) (invalidating statute prohibiting 

displaying flag, banner or device in Supreme Court building 

or on its grounds). 

Admittedly, the intermediate scrutiny test applied varies 

to some extent from context to context, and case to case. 

But it always encompasses some balancing of the state 

interest and the means used to effectuate that interest. And 

despite the frequent tendency to assume that regulations 

that are reviewed under less exacting scrutiny than strict 

scrutiny will be upheld, each of the cases referred to above 

as applying intermediate scrutiny held that the regulation 

in question was unconstitutional. The reasons varied. 

Sometimes, the Court held the asserted government 

interest insufficient to justify an expansive prohibition and 

noted the government failed to demonstrate that a lesser 

prohibition would not adequately serve its purpose. See, 

e.g., Schneider v. State, 308 U.S. 147, 162 (1939) (holding 

that state interest in preventing littering did not justify ban 

on leafletting); Village of Schaumburg v. Citizens for a Better 

Environment, 444 U.S. 620, 636 (1980) (invalidating

prohibition on charitable solicitations for certain charities 

as too destructive of First Amendment interests). Other 

 23 
times, the Court held the government failed to show that 

the challenged regulation substantially served the asserted 

government interest. See, e.g., Grace, 461 U.S. at 182. It 

should also be noted that in making the examination into 

whether the means chosen were those appropriate to the 

government interest, the Court has not always made a 

distinction between its analysis for purposes of 

intermediate scrutiny and for strict scrutiny. See, e.g., 

Anderson v. Celebrezze, 460 U.S. 780 (1983) (invalidating 

candidate registration statute because voters' associational 

and voting rights outweighed state interest). 

The test usually applied in First Amendment cases to 

content-neutral regulation requires an examination of 

whether the regulation is "narrowly tailored to serve a 

significant governmental interest" and "leave[s] open ample 

alternative channels for communication." Clark v. 

Community for Creative Non-Violence, 468 U.S. 288, 293 

(1984). There is a considerable number of First Amendment 

cases in which the Supreme Court, applying intermediate 

scrutiny, has found that the regulation at issue, albeit 

designed to advance legitimate state interests, failed to 

withstand that scrutiny. A review of illustrative cases 

provides some indication of the Court's analytic approach 

in such instances. 

In Schneider, the Court recognized that there is a 

legitimate government interest in preventing street littering 

but nevertheless found that "the purpose to keep the 

streets clean and of good appearance is insufficient to 

justify an ordinance which prohibits a person rightfully on 

a public street from handing literature to one willing to 

receive it." 308 U.S. at 162. The Court termed the burden 

imposed on the cities in cleaning and caring for the streets 

"an indirect consequence of such distribution," and one 

that resulted from the "constitutional protection of the 

freedom of speech and press." Id. The Court continued, in 

language significant for this case, "[t]here are obvious 

methods of preventing littering. Amongst these is the 

punishment of those who actually throw papers on the 

streets." Id. (emphasis added). 

Similarly, in Village of Schaumburg, the Court recognized 

that the government had a substantial interest in 

 24 
protecting the public from fraud, crime and undue 

annoyance, but held that the proffered interest, which the 

government sought to accomplish by an ordinance that 

prohibited the solicitation of contributions by charitable 

organizations that did not use at least 75% of their receipts 

for "charitable purposes," was "only peripherally promoted 

by the 75-percent requirement and could be sufficiently 

served by measures less destructive of First Amendment 

interests." 444 U.S. at 636. 

Both Schneider and Schaumburg were cited by the Court 

in a later case to illustrate "the delicate and difficult task 

[that] falls upon the courts to weigh the circumstances and 

to appraise the substantiality of the reasons advanced in 

support of the regulation of the free enjoyment of[First 

Amendment] rights." Schad v. Borough of Mount Ephraim, 

452 U.S. 61, 70 (1981) (quoting Schneider, 308 U.S. at 

161). In Schad, the Court invalidated a zoning ordinance 

that excluded live entertainment, including nude dancing, 

throughout the borough after finding that the borough 

"ha[d] not adequately justified its substantial restriction of 

protected activity." Id. at 72. Justice Blackmun's concurring 

opinion makes clear that the burden to "articulate, and 

support, a reasoned and significant basis" for the 

governmental regulation should not be viewed as de 

minimis, even when the regulation is subjected to 

intermediate scrutiny. Id. at 77; see also Geoffrey R. Stone, 

Content-Neutral Restrictions, 54 U. Chi. L. Rev. 46, 52-53 

(1987) (describing intermediate scrutiny as a test that 

"takes seriously the inquiries into the substantiality of the 

governmental interest and the availability of less restrictive 

alternatives."). 

With the Supreme Court precedent as a guide, we 

examine whether the government has shown that its 

proffered interest is sufficiently furthered by application to 

these defendants of the damages provisions of the 

Wiretapping Acts to justify the impingement on the 

protected First Amendment interests at stake. 

As noted above, the United States contends that the

Wiretapping Acts serve the government's interest in

protecting privacy by helping "maintain the confidentiality 

of wire, electronic, and oral communications." United 

 25 
States' Br. at 33. Undoubtedly, this is a significant state 

interest. We do not understand the defendants to deny that 

there is an important governmental interest served by the 

Wiretapping Acts. However, the government recognizes that 

not all of the provisions of the Wiretapping Acts are being 

challenged. In fact, only a portion of those Acts are at issue 

here -- the provisions imposing damages and counsel fees 

for the use and disclosure of intercepted material on those 

who played no part in the interception. 

The United States asserts that these provisions protect 

the confidentiality of communications in two ways: (1) "by 

denying the wrongdoer the fruits of his labor" and (2) "by 

eliminating the demand for those fruits by third parties." 

United States' Br. at 33. In this case, however, there is no 

question of "denying the wrongdoer the fruits of his labor." 

The record is devoid of any allegation that the defendants 

encouraged or participated in the interception in a way that 

would justify characterizing them as "wrongdoers." Thus, 

the application of these provisions to penalize an individual 

or radio stations who did participate in the interception and 

thereafter disclosed the intercepted material is not before 

us. 

We therefore focus on the United States' second 

contention -- that the provisions promote privacy by 

eliminating the demand for intercepted materials on the 

part of third parties. The connection between prohibiting 

third parties from using or disclosing intercepted material 

and preventing the initial interception is indirect at best. 

The United States has offered nothing other than its ipse 

dixit in support of its suggestion that imposing the 

substantial statutory damages provided by the Acts on 

Yocum or the media defendants will have any effect on the 

unknown party who intercepted the Bartnicki-Kane 

conversation. Nor has the United States offered any basis 

for us to conclude that these provisions have deterred any 

other would-be interceptors.5 Given the indirectness of the 

_________________________________________________________________ 

5. As the Supreme Court recently emphasized in invalidating a 

prohibition on the receipt of honoraria by government employees, "[w]hen 

the government defends a regulation on speech . . . it must do more 

than simply `posit the existence of the disease sought to be cured.' . . . 

 26 
manner in which the United States claims the provisions 

serve its interest, we are not prepared to accept the United 

States' unsupported allegation that the statute is likely to 

produce the hypothesized effect. See Landmark 

Communications, Inc. v. Virginia, 435 U.S. 829, 841 (1978) 

("The Commonwealth has offered little more than assertion 

and conjecture to support its claim that without criminal 

sanctions the objectives of the statutory scheme would be 

seriously undermined."). Faced with nothing "more than 

assertion and conjecture," it would be a long stretch indeed 

to conclude that the imposition of damages on defendants 

who were unconnected with the interception even 

"peripherally promoted" the effort to deter interception. See 

Village of Schaumburg, 444 U.S. at 636. 

When the state seeks to effectuate legitimate state

interests, 

 it must do so by narrowly drawn regulations designed 

 to serve those interests without unnecessarily 

 interfering with First Amendment freedoms. Hynes v. 

 Mayor of Oradell, 425 U.S. at 620; First National Bank 

 of Boston v. Bellotti, 435 U.S. 765, 786 (1978)."Broad 

 prophylactic rules in the area of free expression are 

 suspect. Precision of regulation must be the

 touchstone. . . ." NAACP v. Button, 371 U.S. 415, 438 

 (1963) (citations omitted). 

Village of Schaumburg, 444 U.S. at 637. 

In Village of Schaumburg, the Court stated that the

Village's legitimate interest in preventing fraud could be 

better served by requiring solicitors to inform the public of 

the uses made of their contributions, than by prohibiting 

solicitation. Id. Similarly, in Martin v. Struthers, 319 U.S. 

141, 147-48 (1943), the Court held that in lieu of a 

complete prohibition of door-to-door solicitation, with its 

_________________________________________________________________ 

It must demonstrate that the recited harms are real, not merely 

conjectural, and that the regulation will in fact alleviate these harms in 

a 

direct and material way." United States v. National Treasury Employees 

Union, 513 U.S. 454, 475 (1995) (citation and internal quotation omitted) 

(emphasis added). 

 27 
draconian impact on First Amendment values, the City 

could have used the less restrictive means of punishing 

those who trespass "in defiance of the previously expressed 

will of the occupant." Indeed, the Wiretapping Acts already 

provide for punishment of the offender, i.e., the individual 

who intercepted the wire communication and who used or 

disclosed it. See Schneider, 308 U.S. at 162 (city should 

prevent littering by punishing litterers, not by prohibiting 

leafleting). Those who indirectly participated in the 

interception, either by aiding or abetting, would also fall 

within the sanctions provided by the statute. Therefore, the 

government's desired effect can be reached by enforcement 

of existing provisions against the responsible parties rather 

than by imposing damages on these defendants. 

We are also concerned that the provisions will deter 

significantly more speech than is necessary to serve the 

government's asserted interest. It is likely that in many 

instances these provisions will deter the media from 

publishing even material that may lawfully be disclosed 

under the Wiretapping Acts. 

Reporters often will not know the precise origins of 

information they receive from witnesses and other sources, 

nor whether the information stems from a lawful source. 

Moreover, defendants argue that they cannot be held liable 

for use and publication of information that had previously 

been disclosed. Assuming this is so, reporters may have 

difficulty discerning whether material they are considering 

publishing has previously been disclosed to the public. 

Such uncertainty could lead a cautious reporter not to 

disclose information of public concern for fear of violating 

the Wiretapping Acts. 

Bartnicki and Kane recognize that the Supreme Court

has frequently expressed concern about the "timidity and 

self-censorship" that may result from permitting the media 

to be punished for publishing certain truthful information. 

See, e.g., Florida Star, 491 U.S. at 535; Cox Broadcasting, 

420 U.S. at 496. The public interest and newsworthiness of 

the conversation broadcast and disclosed by the defendants 

are patent. In the conversation, the president of a union 

engaged in spirited negotiations with the School Board 

suggested "blow[ing] off [the] front porches" of the School 

 28 
Board members. Nothing in the context suggests that this 

was said in anything other than a serious vein. Certainly, 

even if no later acts were taken to follow through on the 

statement, and hence no crime committed, the fact that the 

president of the school teachers' union would countenance 

the suggestion is highly newsworthy and of public 

significance. Our concerns are only heightened by the 

Supreme Court's admonition in Smith that"state action to 

punish the publication of truthful information seldom can 

satisfy constitutional standards." 443 U.S. at 102.

Our dissenting colleague does not disagree with any of 

the applicable legal principles. He candidly states that the 

difference between us is one of "ultimate application of [the 

agreed upon] analysis to the case at bar." Dissenting Op. at 

36. Therefore, we add only a few brief comments pertaining 

to that application. 

Evidently, one of the principal differences between our 

respective applications lies in the weight we give the factors 

to be balanced. The dissent suggests the Supreme Court's 

decisions in Schneider, Struthers, and Schaumburg are not 

pertinent to this case because the state interests in those 

cases (littered streets, annoying door-to-door proselytizers,6 

and fraudulent charitable solicitors, respectively) were "not 

very important." The dissent contrasts those interests with 

the significant governmental interest at issue here -- that 

of maintaining the confidentiality of wire, electronic, and 

oral communications. 

Presumably, the dissent's point is that we must weigh 

more heavily the privacy interests furthered by the

Wiretapping Acts than the Court weighed the state interests 

in the three cited cases. Given the conceded importance of 

privacy and confidentiality at issue here, we nonetheless 

find it difficult to accord it more weight than the interests 

in preventing disclosure of the name of a rape victim, the 

identity of a judge in a putative disciplinary proceeding, or 

the identity of a youth charged as a juvenile offender at 

issue in Cox Broadcasting, Landmark Communications and 

_________________________________________________________________ 

6. The dissent fails to mention that one of the purposes for the ordinance 

referred to by the Court in Struthers was crime prevention. See 319 U.S. 

at 144-45. 

 29 
Smith, respectively. Yet when faced with each of those 

circumstances, the Supreme Court determined that despite 

the strong privacy interest underlying the statutory and 

state constitutional provisions punishing disclosure of such 

information, the interests served by the First Amendment 

must take precedence.7 It would be difficult to hold that 

privacy of telephone conversations are more "important" 

than the privacy interests the states unsuccessfully 

championed in those cases. 

In addition, we do not share the dissent's confidence that 

imposition of civil liability on those who neither participated 

in nor encouraged the interception is an effective deterrent 

to such interception. The dissent finds such a nexus in the 

legislative landscape, where half of the states that prohibit 

wiretapping also authorize civil damage actions. With due 

respect, we find this a slim reed, not only because it 

appears from the dissent's statistics that the other half of 

the states with wiretapping statutes have not included a 

damage provision but because the incidence of state

statutes, and hence "widespread legislative consensus," 

does not prove the deterrent effect of the prohibition. 

Indeed, there is not even general agreement as to the 

deterrent effect of a criminal statute on the perpetrator,8 

much less on those who were not in league with the 

perpetrator. In determining whether a regulation that 

restricts First Amendment rights "substantially serves [its 

asserted] purposes," see Grace, 461 U.S. at 182, the Court 

has never found that question satisfied by sheer numbers 

of state statutes. 

_________________________________________________________________ 

7. Although we acknowledge that those decisions arose from a stricter 

level of scrutiny than we employ here and somewhat different 

circumstances, the fact remains that the Court has generally tilted for 

the First Amendment in the tension between press freedom and privacy 

rights. This is bemoaned by the dissenting Justices in The Florida Star, 

who state candidly they "would strike the balance rather differently." 491 

U.S. at 552 (White, J., dissenting). So, apparently, would the dissent in 

this case. 

8. The opposing views of deterrence were noted in connection with 

capital punishment in Chief Justice Burger's dissenting opinion in 

Furman v. Georgia, 408 U.S. 238, 395-96 (1972). 

 30 
The dissent engages in hyperbole when it suggests that 

our decision "invalidates a portion of the federal statute" 

and "by necessary implication spells the demise of a portion 

of more than twenty other state statutes." Dissenting Op. at 

42. The statutes, which are designed to prohibit and 

punish wiretapping, remain unimpaired. All that is at issue 

is the application of those statutes to punish members of 

the media who neither encouraged nor participated directly 

or indirectly in the interception, an application rarely 

attempted. 

Moreover, we do not agree that the recent decision in 

Boehner v. McDermott, 191 F.3d 463 (D.C. Cir. 1999), 

presented that court with the same issue presented here. 

Most particularly, in Boehner, where a divided court upheld 

the constitutionality of S 2511(1)(c), all three judges 

emphasized in their separate opinions that there was no 

effort to impose civil damages on the newspapers (The New 

York Times, et al.) which had printed the details of a 

conversation that been illegally intercepted. Thus, for 

example, in the lead opinion the court stated at the outset, 

"[n]or should we be concerned with whetherS 2511(1)(c) 

would be constitutional as applied to the newspapers who 

published the initial stories about the illegally-intercepted 

conference call." Id. at 467. Liability in that case was 

sought to be imposed on James McDermott, a congressman 

who caused a copy of the tape to be given to the 

newspapers. Although technically, defendant Yocum in our 

case stands in the same position as McDermott, i.e. as the 

source but not the interceptor, there is an indication in 

Boehner that McDermott was more than merely an innocent 

conduit. Indeed, McDermott, unlike Yocum, knew who 

intercepted the conversation because he "accepted" the tape 

from the interceptors and, the opinion suggests, not only 

sought to embarrass his political opponents with the tape 

but also promised the interceptors immunity for their illegal 

conduct. Id. at 475-76. In fact, the second judge, who 

concurred in the judgment and in only a portion of the 

opinion for the court, specifically limited his concurrence to 

the decision that S 2511(1)(c) "is not unconstitutional as 

applied in this case," id. at 478 (emphasis added), and 

pointed out that "McDermott knew the transaction was 

illegal at the time he entered into it," id. at 479. In contrast, 

 31 
Yocum has not been shown to have "entered into" any

transaction with the interceptors. In the posture of this 

case, all parties accept his allegation that the tape was left 

in his mailbox. 

The Boehner court was acutely aware that no court has 

yet held that the government may punish the press through 

imposition of damages merely for publishing information of 

public significance because its original source acquired that 

information in violation of a federal or state statute. Cf. 

Landmark, 435 U.S. at 837 (finding it unnecessary to adopt 

categorical approach). As noted earlier in this opinion, the 

Supreme Court has been asked to permit a state to penalize 

the publication of truthful information in at least four 

instances. In three of the four cases, the statutes at issue 

protected the privacy interests of such vulnerable 

individuals as juveniles and the victims of sexual assault. 

See Florida Star, 491 U.S. at 526; Smith, 443 U.S. at 98; 

Cox Broadcasting, 420 U.S. at 472. In the remaining case, 

the statute at issue was meant to protect the state's 

interest in an independent and ethical judiciary. See 

Landmark, 435 U.S. at 830. Despite the strength of the 

state interests asserted, the Supreme Court in each case 

concluded that those interests were insufficient to justify 

the burdens imposed on First Amendment freedoms. 

We likewise conclude that the government's significant 

interest in protecting privacy is not sufficient to justify the 

serious burdens the damages provisions of the Wiretapping 

Acts place on free speech. We are skeptical that the burden 

these provisions place on speech will serve to advance the 

government's goals. Even assuming the provisions might 

advance these interests, the practical impact on speech is 

likely to be "substantially broader than necessary." Ward v. 

Rock Against Racism, 491 U.S. 781, 800 (1989). 

We therefore hold that the Wiretapping Acts fail the test 

of intermediate scrutiny and may not constitutionally be 

applied to penalize the use or disclosure of illegally 

intercepted information where there is no allegation that 

the defendants participated in or encouraged that 

interception. It follows that we need not decide whether 

these provisions leave open ample alternative channels for 

communication of information. 

 32 
III. 

CONCLUSION 

For the reasons set forth, we will reverse the order of the 

District Court denying summary judgment to the 

defendants, and will remand with directions to grant that 

motion. 

 33 
POLLAK, District Judge, dissenting. 

The Court of Appeals for the District of Columbia Circuit 

has recently determined, in Boehner v. McDermott, 191 F.3d 

463 (D.C. Cir. 1999), that the First Amendment does not 

bar a civil damage action brought, pursuant to 18 U.S.C. 

S 2511(1)(c) and 18 U.S.C. S 2520(a), and pursuant to the 

Florida statutory provisions that are counterparts of the 

federal statute, against one who, so the plaintiff alleged, 

gave to the New York Times and other newspapers copies of 

a tape recording of a telephone conversation which the 

defendant had "knowledge and reason to know" had been 

unlawfully intercepted.1 Today this court holds that the 

_________________________________________________________________ 

1. In Boehner v. McDermott, the plaintiff, John Boehner, is a Republican 

Representative who, together with other members of the Republican 

leadership of the House of Representatives (including then Speaker 

Gingrich), was in 1996 party to a conference telephone call that was 

unlawfully intercepted by persons equipped with a radio scanner. 

According to Representative Boehner's complaint, the interceptors turned 

over the tape to James A. McDermott, a Democratic Representative who 

was at the time the ranking minority member of the House Ethics 

Committee; Representative McDermott in turn gave copies of the tape to 

the New York Times and other newspapers; and the New York Times 

promptly published part of the taped conversation. Representative 

Boehner sued Representative McDermott, but did not sue the New York 

Times or any other newspaper. The district court dismissed 

Representative Boehner's complaint on First Amendment grounds. The 

circuit court reversed. 

The circuit court perceived a potentially important distinction between 

Representative McDermott's First Amendment claim and the First 

Amendment claim that might have been made by the New York Times or 

another newspaper, if a newspaper had been named as a defendant. 

Identifying that potential distinction, the court was at pains to confine 

its analysis to Representative McDermott's claim: 

 McDermott's liability under S 2511(1)(c) rests on the truth of two 

 allegations: that he "caused a copy of the tape" to be given to the 

 newspapers; and that he "did so intentionally and with knowledge 

 and reason to know that the recorded phone conversation had been 

 illegally intercepted (as the cover letter on its face disclosed)." 

 Complaint P 20. Although the circumstances of McDermott's 

 transactions with the newspapers, including who said what to 

 whom, may become evidence at trial, it is his conduct in delivering 

 34 
First Amendment does bar a civil damage action brought, 

pursuant to the Federal statute and its Pennsylvania 

counterpart, against (1) one who handed over a copy of a 

taped telephone conversation to a radio reporter, and (2) 

the radio reporter and the two radio stations that 

subsequently broadcast the tape, plaintiffs having alleged 

that both the person who handed over the tape and the 

radio reporter had, in the statutory language, "reason to 

know" that the taped conversation had been intercepted in 

contravention of the federal and Pennsylvania statutes. In 

the case decided today the court addresses a broader range 

of issues then those presented in Boehner v. McDermott: in 

Boehner v. McDermott the only defendant was the person 

who allegedly delivered to the media a copy of a tape of an 

allegedly wrongfully intercepted telephone conversation; in 

_________________________________________________________________ 

 the tape that gives rise to his potential liability under S 

2511(1)(c). 

 McDermott's behavior in turning over the tapes doubtless conveyed 

 a message, expressing something about him. All behavior does. But 

 not all behavior comes within the First Amendment. 

 "[E]ven on the assumption that there was[some] communicative 

 element in" McDermott's conduct, the Supreme Court has held that 

 "when `speech' and `nonspeech' elements are combined in the same 

 course of conduct, a sufficiently important governmental interest 

in 

 regulating the nonspeech element can justify incidental limitations 

 on First Amendment freedoms." United States v. O'Brien, 391 U.S. 

 367, 376, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968). The O'Brien 

 framework is the proper mode of First Amendment analysis in this 

 case. McDermott's challenge is only to the statute as it applies to 

his 

 delivery of the tape to newspapers. Whether a different analysis 

 would govern if, for instance, McDermott violatedS 2511(1)(c) by 

 reading a transcript of the tape in a news conference, is therefore 

a 

 question not presented here. Nor should we be concerned with 

 whether S 2511(1)(c) would be constitutional as applied to the 

 newspapers who published the initial stories about the illegally- 

 intercepted conference call. The focus must be on McDermott's 

 activity and on his activity alone. 

191 F.3d at 467. 

The author of the court's opinion was Judge Randolph. Judge 

Ginsburg filed a concurring opinion, joining part (including the 

paragraphs just quoted) of Judge Randolph's opinion. Judge Santelle 

filed a dissenting opinion. 

 35 
today's case there are three "media defendants" in addition 

to the defendant who allegedly delivered to the media a 

copy of a tape of an allegedly wrongfully intercepted 

telephone conversation.2 

I am in general agreement with the careful analytic path 

traced by the court through the minefield of First 

Amendment precedents. However, I find myself in 

disagreement with the court's ultimate application of its 

analysis to the case at bar. 

Accordingly, I respectfully dissent.3 

_________________________________________________________________ 

2. The Boehner v. McDermott court was at pains to point out the limited 

scope of its ruling. See note 1, supra . See also note 3, infra. 

3. Although I have expressed general agreement with the court's analytic 

approach. I should note one aspect of the analysis on which I differ with 

the court. That aspect is cogently illustrated by the distinction the 

Boehner v. McDermott court drew between the First Amendment posture 

of Representative McDermott and the potential First Amendment posture 

of a newspaper that published (as the New York Times in fact did) a 

portion of the intercepted telephone conference call, had such a 

newspaper been sued. As the Boehner v. McDermott excerpt quoted in 

footnote 1, supra, makes clear, the court was doubtful that 

Representative McDermott's action in giving copies of the tape to 

newspapers was itself "speech" in the full First Amendment sense. Judge 

Randolph, speaking for the court, saw Representative McDermott's First 

Amendment claim as cabined by the Supreme Court's holding in United 

States v. O'Brien, 391 U.S. 367, 376 (1968), that "when `speech' and 

`nonspeech' elements are combined in the same course of conduct, a 

sufficiently important governmental interest in regulating the nonspeech 

element can justify incidental limitations on First Amendment freedoms." 

In the case at bar, in which the plaintiffs have sued both Yocum and 

media defendants, the United States argues that the approach reflected 

in O'Brien and cases that follow it is appropriate to the entire case. The 

court rejects that view. I find the Boehner v. McDermott exposition of 

Representative McDermott's limited First Amendment posture 

persuasive, and thus in the case at bar I would apply the O'Brien 

approach to defendant Yocum -- whose role, from a First Amendment 

perspective, seems analogous to that of Representative McDermott -- 

while rejecting O'Brien as the proper approach to the First Amendment 

claims of the media defendants. However, the distinction is not one that 

I need pursue, because, accepting for the purposes of the case at bar the 

court's comprehensive rejection of O'Brien, I nonetheless wind up 

 36 
I. 

I agree with the court's statement of the case. And I agree 

with the court's determination that the challenged federal 

and Pennsylvania wiretapping statutes -- here invoked by 

plaintiffs seeking damages for defendants' alleged 

disclosure and use of a taped telephone conversation of 

plaintiffs that defendants allegedly had "reason to know" 

was the product of a prohibited "interception of a wire . . . 

communication," 18 U.S.C. S 2511(c); 18 Pa. Cons. Stat. 

S 5703(2) -- are "content neutral." I further agree with the 

court that the proper standard to be applied in testing the 

constitutionality of the federal and Pennsylvania statutes as 

here applied is "intermediate scrutiny." Finally, I agree with 

the court that intermediate scrutiny "always encompasses 

some balancing of the state interest and the means used to 

effectuate that interest." Slip Op., p. 23. Concretely, such 

scrutiny calls for judicial assessment of whether the 

challenged regulation is "narrowly tailored to serve a 

significant governmental interest." Clark v. Community for 

Creative Non-Violence, 468 U.S. 288, 293 (1984). 4 

Where I part company with the court is in its application 

of intermediate scrutiny in this case. 

A. 

The court begins by acknowledging what I take to be

beyond dispute: namely, that the professed governmental 

_________________________________________________________________ 

disagreeing with the court on how the court's analytic approach plays 

out as applied, with the result that I conclude that liability in damages 

could constitutionally have been imposed both on Yocum and on the 

media defendants if the plaintiffs had been permitted to take their case 

to trial and had proved their allegations to the satisfaction of the factfinder. 

4. The other criterion identified in Clark v. Community for Creative NonViolence -- namely, whether the challenged regulation "leave[s] open 

ample alternative channels for communication of the information" 468 

U.S. at 293 -- is not pertinent to the case at bar because the challenged 

statutes are not, as the challenged regulations in Clark v. Community for 

Creative Non-Violence were deemed to be, "time, place or manner 

restrictions." Ibid. And see id. at 295. 

 37 
interest -- the interest of the United States (which is 

presumably also Pennsylvania's interest) in "maintain[ing] 

the confidentiality of wire, electronic, and oral 

communications," Brief for the United States, p. 33 -- is "a 

significant state interest." Slip Op., supra, p. 26. Then -- 

evidently with a view to exploring whether the challenged 

prohibition on disclosure or use of a conversation by one 

who had "reason to know" that the conversation was 

intercepted unlawfully is "narrowly tailored to serve [that] 

significant governmental interest" -- the court undertakes 

to "focus on the United States' . . . contention . . . that the 

provisions promote privacy by eliminating the demand for 

intercepted materials on the part of third parties." Slip Op., 

p. 26. The court then proceeds as follows: 

 The connection between prohibiting third parties from 

 using or disclosing intercepted material and preventing 

 the initial interception is indirect at best. The United 

 States has offered nothing other than its ipse dixit in 

 support of its suggestion that imposing the substantial 

 statutory damages provided by the Acts on Yocum or 

 the media defendants will have any effect on the 

 unknown party who intercepted the Bartnicki-Kane 

 conversation. Nor has the United States offered any 

 basis for us to conclude that these provisions have 

 deterred any other would-be interceptors. Given the 

 indirectness of the manner in which the United States 

 claims the provisions serve its interest, we are not 

 prepared to accept the United States' unsupported 

 allegation that the statute actually produces the 

 hypothesized effect. See Landmark Communications, 

 Inc. v. Virginia, 435 U.S. 829, 841 (1978) ("The 

 Commonwealth has offered little more than assertion 

 and conjecture to support its claim that without 

 criminal sanctions the objectives of the statutory 

 scheme would be seriously undermined."). Faced with 

 nothing "more than assertion and conjecture," it would 

 be a long stretch indeed to conclude that the 

 imposition of damages on defendants who were

 unconnected with the interception even "peripherally 

 promoted" the effort to deter interception. See Village of 

 Schaumburg, 444 U.S. at 636. 

 38 
 When the state seeks to effectuate legitimate state 

 interests, 

 it must do so by narrowly drawn regulations 

 designed to serve those interests without 

 unnecessarily interfering with First Amendment 

 freedoms. Hynes v. Mayor of Oradell, 425 U.S. at 

 620; First National Bank of Boston v. Bellotti , 435 

 U.S. 765, 786 (1978). "Broad prophylactic rules in 

 the area of free expression are suspect. Precision of 

 regulation must be the touchstone. . . ." NAACP v. 

 Button, 371 U.S. 415, 438 (1963) (citations omitted). 

 Village of Schaumburg, 444 U.S. at 637. 

 In Village of Schaumburg, the Court stated that the 

 Village's legitimate interest in preventing fraud could 

 be better served by requiring solicitors to inform the 

 public of the uses made of their contributions, than by 

 prohibiting solicitation. Id. Similarly, in Martin v. 

 Struthers, 319 U.S. 141, 147-48 (1943), the Court held 

 that in lieu of a complete prohibition of door-to-door 

 solicitation, with its draconian impact on First 

 Amendment values, the City could have used the less 

 restrictive means of punishing those who trespass"in 

 defiance of the previously expressed will of the 

 occupant." Indeed, the Wiretapping Acts already 

 provide for punishment of the offender, i.e., the 

 individual who intercepted the wire communication 

 and who used or disclosed it. See Schneider, 308 U.S. 

 at 162 (city should prevent littering by punishing 

 litterers, not by prohibiting leafleting). Those who 

 indirectly participated in the interception, either by 

 aiding or abetting, would also fall within the sanctions 

 provided by the statute. Therefore, the government's 

 desired effect can be reached by enforcement of 

 existing provisions against the responsible parties 

 rather than by imposing damages on these defendants. 

Slip Op. p. 26-28. 

With all respect, I find this portion of the court's opinion 

unpersuasive: 

First: I take issue with the proposition that "[t]he 

connection between prohibiting third parties from using or 

 39 
disclosing intercepted material and preventing the initial 

interception is indirect at best." "[P]reventing the initial 

interception" is only part of the statutory scheme. The 

statutory purposes, as the court has noted, are"(1)

protecting the privacy of wire and oral communications, 

and (2) delineating on a uniform basis the circumstances 

and conditions under which the interception of wire and 

oral communications may be authorized." S. Rep. No. 90- 

1079 (1968), reprinted in 1968 U.S.C.C.A.N. 2112, 2153. 

Unauthorized interception of a communication is prohibited 

-- and made both a criminal offense and an event giving 

rise to civil liability -- both to protect parties to a 

communication from an initial trespass on their privacy 

and to protect them from subsequent disclosure (and/or 

other detrimental use). "Unless disclosure is prohibited, 

there will be an incentive for illegal interceptions; and 

unless disclosure is prohibited, the damage caused by an 

illegal interception will be compounded. It is not enough to 

prohibit disclosure only by those who conduct the unlawful 

eavesdropping. One would not expect them to reveal 

publicly the contents of the communication; if they did so 

they would risk incriminating themselves. It was therefore 

`essential' for Congress to impose upon third parties, that 

is, upon those not responsible for the interception, a duty 

of non-disclosure." Boehner v. McDermott, 191 F.3d at 470. 

Second: Given the close nexus between the legislative 

prohibition on unauthorized interception and the legislative 

imposition upon "third parties, that is, upon those not 

responsible for the interception, [of] a duty of nondisclosure," I am puzzled by the court's view that the 

argument presented by the United States in support of the 

statutory regime of civil liability lacks persuasiveness 

because it is not supported by a demonstration that

"imposing the substantial statutory damages provided by 

the Acts on Yocum or the media defendants will have any 

effect on the unknown party who intercepted the BartnickiKane conversation," or "that these [statutory] provisions 

have deterred any other would-be interceptors." Nor do I 

think the court's view is buttressed by the court's

invocation of Landmark Communication, Inc. v. Virginia, 435 

U.S. 829 (1978). It is true that in Landmark, in which the 

Supreme Court struck down, as applied to a newspaper, a 

 40 
statute making it a misdemeanor to "divulge information" 

about confidential proceedings conducted by Virginia's 

Judicial Inquiry and Review Commission, the Court 

observed that "[t]he Commonwealth has offered little more 

than assertion and conjecture to support its claim that 

without criminal sanctions the objectives of the statutory 

scheme [which contemplated a process of confidential 

inquiry into alleged judicial misconduct] would be seriously 

undermined." But the special -- and limited-- pertinence 

of the Court's observation becomes clear when it is read in 

context. The full paragraph follows: 

 It can be assumed for purposes of decision that 

 confidentiality of Commission proceedings serves 

 legitimate state interests. The question, however, is 

 whether these interests are sufficient to justify the 

 encroachment on First Amendment guarantees which 

 the imposition of criminal sanctions entails with 

 respect to nonparticipants such as Landmark. The 

 Commonwealth has offered little more than assertion 

 and conjecture to support its claim that without 

 criminal sanctions the objectives of the statutory 

 scheme would be seriously undermined. While not 

 dispositive, we note that more than 40 States having 

 similar commissions have not found it necessary to 

 enforce confidentiality by use of criminal sanctions 

 against nonparticipants. 

435 U.S. at 841. In striking contrast is the legislative 

landscape that forms the setting of the case at bar. 

Complementing the federal statute are more than forty 

state wiretapping statutes. Of these state statutes, 

approximately half have provisions which, like the federal 

statute, (1) prohibit disclosure or use of an intercepted 

conversation by one who knows or has "reason to know" 

that the interception was unlawful, and (2) authorize civil 

damage actions against one who discloses or uses such 

unlawful interception. As this case illustrates, Pennsylvania 

is one of those states. So are Delaware and New Jersey -- 

Pennsylvania's Third Circuit siblings. See 11 Del. Code 

Ann., S 1336 (1996); N.J. Stat. Ann. #8E8E # 2A-156 A-3, 2A-156- 

A24 (West 1985 & Supp. 1999). Listed in footnote 5 are the 

other state statutes that closely parallel the provisions of 

 41 
the federal and Pennsylvania legislation challenged by 

defendants in the case at bar.5 

In short, there appears to be a widespread legislative 

consensus that the imposition of civil liability on persons 

engaged in conduct of the kind attributed to these 

defendants is an important ingredient of a regime designed 

to protect the privacy of private conversations. Moreover, 

the decision announced today not only invalidates a portion 

of the federal statute and the counterpart portion of the 

Pennsylvania statute, it by necessary implication spells the 

demise of a portion of more than twenty other state

statutes (and also of a statute of the District of Columbia); 

in the two centuries of American constitutional law I cannot 

recall any prior decision, whether of a federal court or of a 

state court, which, in the exercise of the awesome power of 

judicial review, has cut so wide a swath. 

Third: What has been said points up the non-pertinence 

to the case at bar of Schneider v. State, 308 U.S. 147 

(1939), Martin v. Struthers, 319 U.S. 141 (1943), and Village 

of Schaumburg v. Citizens for a Better Environment, 444 

U.S. 620 (1980), cases cited by the court as illustrative of 

the proposition that regulations designed to promote 

significant governmental interests should not sweep so 

broadly as to impose unnecessary constraints on First 

Amendment rights of free expression and communication. 

The constitutional shortcomings in Schneider (combating 

the littering of streets by curbing leafleting), Struthers 

(banning door-to-door distribution of circulars, including 

religious literature, in order to protect homeowners from 

_________________________________________________________________ 

5. Fla. Stat. Ann. SS 934.03, 812.15; Haw. Rev. Stat. SS 803-42(a)(3), 

803-48; Idaho Code SS 18-6702, 18-6709; 720 Ill. Comp. Stat. Ann. 

5/14-2, 5/14-6; Iowa Code SS 808B.2(1)(c), 808B.8; La. Rev. Stat. Ann. 

SS 15:1303A(3), 15:1312; Md. Code Ann. S 10-402(a)(2), 10-410; Mich. 

Comp. Laws Ann. SS 750.539e, 750.539h; Minn. Stat. Ann. 

SS 626A.02(c), 626A.13; Neb. Rev. Stat. SS 86-702, 86-702.02; N.H. Rev. 

Stat. Ann. SS 570-A:2, 570-A:11; N.C. Gen. Stat. SS 15A-287, 15A-296; 

Ohio Rev. Code Ann. SS 2933.52, 2933.65; Tenn. Code Ann. SS 39-13- 

601, 39-13-603; Utah Code Ann. SS 77-23a-4, 77-23a-11; Va. Code Ann. 

SS 19.2-62, 19.2-69; W. Va. Code SS 62-1D-3, 62-1D-12; Wis. Stat. 

S 968.31; Wyo. Stat. Ann. SS 7-3-602, 7-3-609; See also D.C. Code Ann. 

SS 23-542, 23-554. 

 42 
annoyance), and Village of Schaumburg (combating allegedly 

fraudulent charitable solicitation by banning all solicitation 

by groups not disbursing 75% of receipts) involved 

situations in which small towns imposed on traditional 

First Amendment activities pervasive constraints sought to 

be justified as ways of dealing with distinct (and not very 

important) problems that could have been more effectively 

addressed by governmental action directed at the actual 

problems - e.g., prosecuting litterers (Schneider);

prosecuting as trespassers solicitors who do not depart 

when requested by homeowners to do so (Struthers );

requiring organizations soliciting contributions to disclose 

how receipts are used (Village of Schaumburg). In the case 

at bar, unauthorized disclosure (or other use) of private 

conversations is a central aspect of the very evil the 

challenged statutory provisions are designed to combat. 

B. 

The court also notes that "[r]eporters often will not know 

the precise origins of information they receive from 

witnesses and other sources, nor whether the information 

stems from a lawful source," or, indeed, "whether material 

they are considering publishing has previously been

disclosed to the public." Slip Op., p. 28, As a result, the 

court opines, "[i]t is likely that in many instances these 

[challenged statutory] provisions will deter the media from 

publishing even material that may lawfully be disclosed 

under the Wiretapping Acts." Ibid. 

I think the court overstates the potential problems of the 

media. One would suppose that a responsible journalist -- 

whether press or broadcast -- would be unlikely to propose 

publication of a transcript of an apparently newsworthy 

conversation without some effort to insure that the

conversation in fact took place and to authenticate the 

identities of the parties to the conversation. As part of such 

an inquiry, the question whether the parties to the

conversation had authorized its recording and release, or 

whether others had lawfully intercepted the conversation, 

would seem naturally to arise. Moreover, current technology 

would make it relatively easy to determine whether the 

 43 
conversation had been the subject of a prior press or 

broadcast report.6 

In my judgment, a more substantial First Amendment 

difficulty is posed by the fact that the person or entity 

charged with knowing or having "reason to know" that a 

published conversation was unlawfully intercepted is called 

on to contest before a judicial fact-finder (whether jury or 

judge) a plaintiff 's allegation of knowledge or"reason to 

know." But the difficulties attendant on fact-finder 

oversight of journalistic practice (or, indeed, of public 

disclosure by non-journalists) can, I believe, be met by 

adoption of the procedural proposals advanced in the brief 

for the United States: 

 In criminal prosecutions under Title III, scienter must 

 be proved beyond a reasonable doubt. In civil cases 

 scienter ordinarily would be subject to a conventional 

 preponderance-of-the-evidence standard. When a claim 

 is brought for disclosure of information about matters 

 of public significance by persons who were not involved 

 in the illegal interception, however, a preponderance- 

 of-the-evidence standard may operate to deter the 

 publication of information that was not the product of 

 illegal surveillance. To avoid that result, it might prove 

 appropriate for district courts to impose a higher 

 standard of proof of scienter in such cases, such as 

_________________________________________________________________ 

6. On occasion, inquiry of the kind suggested might indeed take a few 

days. But news reporting -- especially with respect to events (such as a 

conversation) that are concluded, rather than still evolving -- need not 

be an instant process. In the case at bar, it appears that defendant 

Vopper did not broadcast the conversation until some months after 

defendant Yocum gave him a copy of the tape. Deposition of Frederick W. 

Vopper, App. 60a-61a. On the other hand, the New York Times 

published a portion of the intercepted conversation that gave rise to 

Boehner v. McDermott the day after it received the tape. The New York 

Times story also reported that the tape had been"made . . . available to 

the New York Times" by "a Democratic Congressman hostile to Mr. 

Gingrich who insisted that he not be identified further" and who told the 

Times that the tape had been given to him [on January 8, 1997] by a 

couple who said the tape "had been recorded [on December 21, 1996] off 

a radio scanner, suggesting that one participant was using a cellular 

telephone." N.Y. Times, January 10, 1997, p.1, col.3. 

 44 
 proof by "clear and convincing" evidence, and for 

 appellate courts to conduct independent review of the 

 findings of the trier of fact. Cf. Gertz v. Robert Welch, 

 Inc., 418 U.S. 323, 342 (1974) (requiring clear and 

 convincing evidence of "actual malice" in defamation 

 cases); Bose Corp. v. Consumers Union of United States, 

 Inc., 466 U.S. 485, 498-511 (1984) (de novo appellate 

 review of findings regarding actual malice). See 

 generally Waters v. Churchill, 511 U.S. 661, 669-71 

 (1994) (plurality opinion) (discussing circumstances in 

 which First Amendment requires modifications of 

 burdens of proof and other procedural rules). 

Brief for the United States, pp. 40-41 n. 8.7 

II. 

As the court's opinion makes plain, the First Amendment 

values of free speech and press are among the values most 

cherished in the American social order. Maintenance of 

these values (and the other values of the Bill of Rights) 

against overreaching by the legislature or the executive is 

among the judiciary's major and most demanding 

responsibilities. In the case at bar, however, the First 

Amendment values on which defendants take their stand 

are countered by privacy values sought to be advanced by 

Congress and the Pennsylvania General Assembly that are 

of comparable - indeed kindred - dimension. Three decades 

ago the late Chief Judge Fuld of the New York Court of 

Appeals put the matter well in Estate of Hemingway v. 

Random House, 23 N.Y. 2d 341, 348, 244 N.E.2d 250, 255 

(1968) (in words that the Supreme Court has quoted with 

_________________________________________________________________ 

7. The court's decision has the anomalous consequence of cloaking 

Yocum, who is not a "media defendant", with the First Amendment 

protections the court deems appropriate for radio reporter Vopper and 

the two radio stations. I have undertaken to explain in footnote 3, supra, 

that in my judgment Yocum has a far more tenuous First Amendment 

claim (if any) than the media defendants. I do not think that, merely by 

virtue of the fortuity that the plaintiffs have elected to sue Yocum and 

the media defendants (which the plaintiff in Boehner v. McDermott did 

not do), Yocum becomes a third-party beneficiary of whatever First 

Amendment protections may accrue to the media defendants. 

 45 
approval, Harper & Row Publishers v. National Enterprises, 

471 U.S. 539, 560 (1985)): 

 The essential thrust of the First Amendment is to 

 prohibit improper restraints on the voluntary public 

 expression of ideas; it shields the man who wants to 

 speak or publish when others wish him to be quiet. 

 There is necessarily, and within suitably defined areas, 

 a concomitant freedom not to speak publicly, one 

 which serves the same ultimate end as freedom of 

 speech in its affirmative aspect. 

A True Copy: 

Teste: 

 Clerk of the United States Court of Appeals 

 for the Third Circuit 

 46