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D ock e t 98- 7156

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. e du/thir dc ir c uit_1999/327Filed 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 Cour t 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

2Mark 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 p ortions of a tape recording of an intercepted telephone conver sation 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 1 994, Wyoming Valley West School District was in contract negotiations with the Wyoming Valley West School Di strict Teachers' Union (the "Teachers' Union") over the te rms 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 invo lved in

3the negotiating process. Bartnicki was the chief ne gotiator

on behalf of the Teachers' Union. Kane, a teacher a t Wyoming Valley West High School, served as presiden t of the local union. Yocum served as president of the W yoming 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 th e teachers would obtain a three-percent raise, as sug gested by the Wyoming Valley West School Board, or a six-p ercent 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 perce nt, we're gonna have to go to their, their homes . . . to blow off their front porches, we'll have to do some w ork on some of those guys . . . . Really, uh, reall y and truthfully, because this is, you know, this is bad news (undecipherable) The part that bothers me, t hey could still have kept to their three percent, but they're again negotiating in the paper. This newspaper rep ort knew it was three percent. What they should have said,`we'll

meet and discuss this.' You don't discuss th e 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 t ape to Fred Williams, also known as Frederick W. Vopper, o f WILK Radio and Rob Neyhard of WARM Radio, both local rad io stations. Williams repeatedly played part of the ta pe 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 transcri pts were published in some newspapers.

4B.

Bartnicki and Kane sued Yocum, Williams, WILK Radio

, and WGBI Radio (hereafter "media defendants") under both federal and state law. They based their federal cla ims on

Title III of the Omnibus Crime Control and Safe Str eets Act of 1968, as amended by the Electronic Communication s 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. S tat. 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 damage s under 18 Pa. Cons. Stat. S 5725(a)(1), (4) punitive damag es, 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' mot ion to reconsider on November 8, 1996, specifically hol ding that imposing liability on the defendants would not viol ate the

First Amendment.

The District Court subsequently certified two quest ions as controlling questions of law: "(1) whether the i mposition of liability on the media Defendants under the [wir etapping statutes] solely for broadcasting the newsworthy ta pe on the Defendant Fred Williams' radio news/public affa irs program, when the tape was illegally intercepted an d recorded by unknown persons who were not agents of the Defendants, violates the First Amendment; and (2) w hether imposition of liability under the aforesaid [wireta pping statutes] on Defendant Jack Yocum solely for provid ing the anonymously intercepted and recorded tape to the me dia Defendants violates the First Amendment." App. at 3 88. 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 defend ants' request that we hear this appeal. We granted the pe tition by order dated February 26, 1998. The Pennsylvania State

Education Association submitted a brief as amicus c uriae in support of the appellees, and the United States has intervened as of right pursuant to 28 U.S.C. S 2403

.

5C.

The District Court had jurisdiction to consider cla ims

based on the Omnibus Crime Control and Safe Streets Act of 1968 pursuant to 28 U.S.C. S 1331. It had supple mental jurisdiction pursuant to 28 U.S.C. S 1367 to consid er claims based on the Pennsylvania Wiretapping and Electronic Surveillance Control Act. We have appell ate jurisdiction to review the District Court's substan tive determination pursuant to 28 U.S.C. S 1292(b).

The scope of our review in a permitted interlocutor y appeal is limited to questions of law raised by the underlying order. We are not limited to answering t he questions certified, however, and may address any i ssue necessary to decide the appeal. See Dailey v. Natio nal Hockey League, 987 F.2d 172, 175 (3d Cir. 1993).

We review the grant or denial of a motion for summa ry judgment de novo. See H.K. Porter Co. v. Pennsylvan ia 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 conf lict 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 provide d 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 th rough the interception of a wire, oral, or electro nic

communication in violation of this subsectio n;

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

contents of any wire, oral, or electronic communication, knowing or having reason to k now that the information was obtained through th e interception of a wire, oral, or electronic

communication in violation of this subsectio n . . .

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 sec tion 2511(2)(a)(ii), any person whose wire, oral, or electronic communication is intercepted, disclosed, or intentionally used in violation of this chap ter may in a civil action recover from the person or enti ty 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 w ho intentionally use or disclose to another the conten ts 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 Wiretap ping 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, e lectronic or oral communication, or evidence derived ther efrom, knowing or having reason to know that the in formation was obtained through the interception of a w ire, electronic or oral communication; or

(3) intentionally uses or endeavors to use the contents of any wire, electronic or oral com munication, or evidence derived therefrom, knowing or ha ving

reason to know that the information was obta ined

7through the interception of a wire, electron ic or oral

communication.

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

(a) Cause of action. -- Any person whose wir e, electronic or oral communication is intercep ted, disclosed or used in violation of this chapt er shall have a civil cause of action against any person w ho intercepts, discloses or uses or procures an y other person to intercept, disclose or use, such

communication . . . .

18 Pa. Cons. Stat. S 5725. The Pennsylvania Wiretap ping

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 fed eral and state statutes at issue here as "The Wiretapping Ac ts."

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 violat or as a result of the violation; or

(B) statutory damages of whichever is the g rea ter of $100 a day for each day of violation or $10, 000."

18 U.S.C. S 2520(c)(2). The Pennsylvania Wiretappin g Act specifies that a successful plaintiff "shall be ent itled to recover from any such person:

(1) Actual damages, but not less than liquid ated damages computed at the rate of $100 a day f or each day of violation, or $1,000, whichever is hi gher.

(2) Punitive damages.

(3) A reasonable attorney's fee and other li tigati on costs reasonably incurred."

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

8II.

DISCUSSION

A.

As the District Court acknowledged and the parties do not dispute, the media defendants neither intercept ed 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 vio lation of these acts can occur by the mere finding that a def endant

had a reason to believe that the communication that he disclosed or used was obtained through the use of a n illegal interception." Bartnicki v. Vopper, No. 94-1201, sl ip op. at 5 (M.D. Pa. June 17, 1996). It further opined that such an interpretation of the statute "adheres to the purpo se of the act which was to protect wire and oral communicatio ns and an individual's privacy interest in such." Id. The District Court concluded that genuine disputes of material f act 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. S ee 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 focuse s exclusively on the portions of the Wiretapping Acts that create causes of action for civil damages against t hose who use or disclose intercepted communications and who had

reason to know that the information was received th rough an illegal interception.

The defendants argue that applying the damages provision of the Wiretapping Acts to hold them liab le for disclosing the Bartnicki-Kane conversation violates the First Amendment. They contend that this case is con trolled

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

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 p rivate right of action created by a Georgia statute making it a "misdemeanor to publish or broadcast the name or id entity of a rape victim." Id. at 472. The Court was asked to decide whether Georgia could impose civil liability on a t elevision broadcasting company, among others, for accurately broadcasting the name of a deceased, 17-year-old ra pe 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 di vulge the identity of a judge subject to such proceedings prior to the filing of a formal complaint with the state's h ighest court. The Supreme Court was asked to decide whethe r Virginia could criminally prosecute a newspaper for publishing accurate information about such proceedi ngs 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. Se e id. at

830.

Finally, in Smith v. Daily Mail Publishing Co., 443 U.S. 97 (1979), the Court considered a West Virginia statut e "making it a crime for a newspaper to publish, with out the written approval of the juvenile court, the name of any youth charged as a juvenile offender." Id. at 98. T he Court was asked to decide whether West Virginia could pro secute two newspapers for publishing the name of a 14-year -old student who was accused of shooting and killing a 1 5-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 Smit h Court,

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

suggesting at least two propositions: (1) "state ac tion to punish the publication of truthful information seld om can satisfy constitutional standards," and (2) "if a ne wspaper lawfully obtains truthful information about a matte r of public significance then state officials may not constitutionally punish publication of the informat ion,

absent a need to further a state interest of the hi ghest order." 491 U.S. at 102, 103; accord Florida Star v . B.J.F., 491 U.S. 524, 533-37 (1989) (adopting and explainin g the justification for the second Smith proposition).

The defendants contend that the information disclos ed about the Bartnicki-Kane conversation was lawfully obtained within the meaning of the Smith decision b ecause the defendants in this case neither participated in the presumed interception nor violated any law by recei ving the information. They conclude that the Wiretapping Act s may not be applied to hold them liable without first me eting the test of strict scrutiny.

Bartnicki and Kane respond by arguing that the information at issue here was unlawfully obtained b ecause the original interception presumably was illegal. T hey conclude that applying the Acts to hold the defenda nts liable is constitutional without subjecting those s tatutes to any level of First Amendment scrutiny. The parties thus

assume that we should determine the constitutionali ty of the Wiretapping Acts by first determining whether t he 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 h as explicitly repudiated any suggestion that Smith ans wers the question whether a statute that limits the dissemin ation of information obtained by means of questionable legal ity is subject to First Amendment scrutiny. In Florida Sta r, the Court stated, "The [Smith] principle does not settl e the issue whether, in cases where information has been acquir ed unlawfully by a newspaper or by a source, governmen t may ever punish not only the unlawful acquisition, but the ensuing publication as well." 491 U.S. at 535 n.8. Similarly,

11the Smith Court was careful to note that its holdin g 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 s uggests

that a rule for undecided cases should not be deriv ed by negative implication from its reported decisions. T he defendant in Landmark urged the Court to adopt a bl anket rule, protecting the press from any liability for t ruthfully reporting information concerning public officials a nd their public duties, but the Supreme Court refused to do so. See 435 U.S. at 838. Instead it considered the very nar row question: "whether [a state] may subject persons, i ncluding newspapers, to criminal sanctions for divulging inf ormation regarding proceedings before a state judicial commi ssion 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 publicatio n may never be punished consistent with the First Amendme nt."

491 U.S. at 532. It stated: "Our cases have careful ly eschewed reaching this ultimate question, mindful t hat the future may bring scenarios which prudence counsels our not resolving anticipatorily. . . . We continue to believe that the sensitivity and significance of the interests p resented 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 gle aned from Cox and its progeny, but by reviewing First Amendment principles in light of the unique facts a nd

circumstances of this case.

B.

The District Court based its conclusion that the da mages provision of the Wiretapping Acts may constitutiona lly be

12applied to penalize the defendants' conduct primari ly on the

Supreme Court's decision in Cohen v. Cowles Media C o., 501 U.S. 663 (1991). The District Court interpreted that decision as standing for the proposition that a gen erally applicable law that neither singles out the press f or 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 Firs t Amendment simply because their enforcement against the press has incidental effects on its ability to gath er and report the news.' " (quoting Cohen v. Cowles Media Co., 501 U.S. 663, 669 (1991))). The District Court emphasiz ed language from the Cohen opinion in which the Suprem e 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 priv ilege to invade the rights and liberties of others.' " Bartn icki, slip op. at 8 (quoting Cohen, 501 U.S. at 670).

After reviewing the Federal and Pennsylvania Wireta pping Acts, the District Court found that neither Act tar gets or singles out the press. The District Court also opin ed that these laws are not "specifically designed to chill free speech." Id. at 7. Based on this finding, it conclu ded that "both acts are matters of general applicability" an d, without further analysis, denied defendants' motion for sum mary 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 rese rved for laws that directly regulate conduct rather than spe ech. 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 pr ohibition on disclosure falls more heavily on the press, whic h 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 applica ble laws do not require First Amendment scrutiny when applie d to

13the press, the District Court read the cited portio ns of

Cohen too broadly. In Cohen, the plaintiff, who was actively associated with the election staff of a gubernatori al candidate, offered to provide two newspapers with s ome information concerning the candidate's opponent in exchange for a promise that the newspapers would no t 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 t he 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 new spapers in state court and recovered damages under a theory of promissory estoppel. The publishers appealed, argui ng that holding them liable for their breached promises wou ld

violate the First Amendment.

It is in the context of rejecting this argument tha t the Supreme Court stated, "[G]enerally applicable laws do not offend the First Amendment simply because their enforcement against the press has incidental effect s 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 s crutiny than would be applied to enforcement against other persons or organizations." Id. at 670.

The Cohen opinion thus instructs that a law of gene ral applicability, which neither targets nor imposes disproportionate burdens upon the press, is enforce able against the press to the same extent that it is enf orceable against individuals or organizations. The question remains whether the damages provisions of the Wiretapping A cts may constitutionally be applied to penalize individ uals 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 ci vil sanctions from the Wiretapping Acts may constitutio nally be applied to penalize defendants' disclosure, we m ust first

14decide what degree of First Amendment scrutiny shou ld be

applied.

The United States argues that the Federal Wiretappi ng Act is subject to intermediate rather than strict s crutiny. It bases this contention on two subsidiary assertions: (1) that these are "general law[s] that impose[ ] only incid ental burdens on expression" and (2) that "to the extent that Title III restricts speech in particular cases, it does s o in an entirely content-neutral fashion." United States' B r. at 22. It states that "[a] statute satisfies intermediate scrutiny, if it furthers an important or substantial governmenta l interest, if the governmental interest is unrelated to the suppression of free expression, and if the incident al restriction on speech is not unnecessarily great." United

States' Br. at 11-12. We assume that the United Sta tes' arguments apply equally to the Pennsylvania Wiretap ping 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 inci dental burdens on expression. In support, the United State s 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. O n 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 (ita lics omitted). The Court of Appeals for the First Circui t agreed that this provision unconstitutionally abridged the freedom of speech.

The Supreme Court, however, reversed. It opined tha t 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 none theless

___________________________________________________ ______________

1. Respected commentators have taken issue with thi s holding in O'Brien. See, e.g., Lawrence H. Tribe, American Con stitutional Law, S 312-6 at 824-25 (2d ed. 1988).

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

of protest against war. Assuming for the sake of ar gument that "the alleged communicative element in O'Brien' s conduct [was] sufficient to bring into play the Fir st Amendment," the Supreme Court held that the statute was still a permissible regulation. Id. at 376. It reas oned that "when `speech' and `nonspeech' elements are combine d in the same course of conduct, a sufficiently importan t governmental interest in regulating the nonspeech e lement can justify incidental limitations on First Amendme nt freedoms." Id. The Court stated that such"a governm ent regulation is sufficiently justified if it is withi n the constitutional power of the Government; if it furth ers an important or substantial governmental interest; if the governmental interest is unrelated to the suppressi on of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than essenti al 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 wri tten expression, which is fully protected by that amendm ent. 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 reasonabl y be understood by the viewer to be communicative" is "[s]ymbolic expression," otherwise known as express ive

conduct. Id. at 294. The cases the United States ci tes in addition to O'Brien also focus on the permissibilit y of regulating expressive conduct. See Barnes v. Glen T heater, Inc., 501 U.S. 560 (1991) (Indiana statute prohibit ing complete nudity in public places); Arcara v. Cloud Books, Inc., 478 U.S. 697 (1986) (New York statute authori zing closure of building found to be a public health nui sance); United States v. Albertini, 472 U.S. 675 (1985) (fe deral statute making it unlawful to reenter a military ba se after having been barred by the commanding officer); Clar k, 468 U.S. at 289 (National Park Service regulation prohi biting camping in Lafayette Park); cf. R.A.V. v. City of S t. Paul, 505 U.S. 377 (1992) (Minnesota statute prohibiting disp lay of certain objects, including a burning cross or Nazi swastika).

16By citing this line of cases in support of its posi tion that

intermediate scrutiny applies here, the United Stat es apparently suggests that defendants' actions in dis closing

the contents of the Bartnicki-Kane conversation are properly considered "expressive conduct" rather tha n speech. If this is the thrust of the government's c itations, it is not persuasive. The acts on which Bartnicki and Kane base their complaint are Yocum's "intentionally dis clos[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 t he 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 fr om the category of expressive conduct.

We have no doubt that it is possible to identify so me 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 condu ct. However, this fact does not alter the analysis. The Supreme Court has observed, "It is possible to find some ke rnel of expression in almost every activity a person undert akes -- for example, walking down the street or meeting one 's friends at a shopping mall -- but such kernel is no t sufficient to bring the activity within the protect ion of the First Amendment." Barnes, 501 U.S. at 570 (quoting Dallas v. Stanglin, 490 U.S. 19, 25 (1989)). Similarly, al though it may be possible to find some kernel of conduct in a lmost every act of expression, such kernel of conduct doe s not take the defendants' speech activities outside the protection

of the First Amendment.

The United States nonetheless insists that intermed iate scrutiny is appropriate because the statute, read a s a whole, primarily prohibits conduct rather than spee ch. It notes that the prohibition in 18 U.S.C. S 2511(d) a gainst

___________________________________________________ ______________

2. The complaint also alleges that Yocum "obtained a tape of the surreptitiously recorded telephone conversation," A pp. at 149, but the complaint does not allege that the mere obtaining o f the tape violates

either statute.

17using or endeavoring to use intercepted material

encompasses more than disclosure. The government as serts that it precludes, for example, a person or company from using intercepted material to develop a competing p roduct, to craft a negotiating strategy, or to justify taki ng disciplinary action against an employee. United Sta tes' Br.

at 22-23.

The government cites no support for the surprising proposition that a statute that governs both pure s peech and conduct merits less First Amendment scrutiny th an one that regulates speech alone. We are convinced t hat this proposition does not accurately state First Amendme nt law. A statute that prohibited the "use" of evolution th eory would surely violate the First Amendment if applied to prohibit the disclosure of Charles Darwin's writing s, much as a law that directly prohibited the publication o f 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 decid e whether this statute could properly be subjected to lesser scrutiny if applied to prohibit "uses" that do invo lve such "nonspeech" elements. We merely hold that, when a s tatute that regulates both speech and conduct is applied t o an act of pure speech, that statute must meet the same deg ree of First Amendment scrutiny as a statute that regulate s speech alone.

The United States' second argument -- that intermed iate scrutiny applies because the Acts are content-neutr al -- is more persuasive.

When the state uses a "content-based" regulation to restrict free expression, particularly political sp eech, that regulation is subject to "the most exacting scrutin y." Boos v. Barry, 485 U.S. 312, 321 (1988); Phillips v. Bor ough 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 reg ulations of speech that are not regarded as content neutral wil l be

18sustained only if they are shown to serve a compell ing state

interest in a manner which involves the least possi ble burden on expression.").

By contrast, when the state places a reasonable"con tentneutral" restriction on speech, such as a time, pla ce and manner regulation, that regulation need not meet th e same high degree of scrutiny. "Content-neutral" restrict ions are valid under the First Amendment provided that they" are justified without reference to the content of the r egulated speech, that they are narrowly tailored to serve a significant governmental interest, and that they leave open amp le

alternative channels for communication of informati on."3 Clark, 468 U.S. at 293.

We recognize that an argument could be made that th e 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 (wh at is said) or whether it merely regulates the time, plac e, or manner of the speech (when, where, at what volume, and through which medium it is said). The former regula tions

are content-based while the latter are content-neut ral. The essence of the distinction lies in the fact that, i f the regulation were content-based, it would not be poss ible to determine whether a particular speech is prohibited without referring to the substantive import of that expression.

The United States contends that the Wiretapping Act s are not content-based even in the literal sense referre d to above because the Acts define the content that is prohibi ted by

reference to the manner in which the information wa s acquired, rather than to its subject matter or view point. We suspect that the mere fact that a regulation define s the category of content that is prohibited by reference to its source rather than its subject matter is unlikely t o be sufficient to justify treating the regulation as co ntentneutral. For example, one might argue that a ban on the

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3. This standard is little different from that anno unced in O'Brien as governing conduct regulations that incidentally res trict expressive behavior. See Clark, 468 U.S. at 298.

19publication of information obtained through

experimentation on human embryos would raise suffic ient First Amendment concerns to merit heightened scruti ny, even if such experimentation were illegal.

The Supreme Court's decision in Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1985), however, sugges ts that we are not limited to a literal interpretation of t he phrase "content-neutral" but may determine whether speech is

content-neutral or content-based with reference to the government's proffered justification for the restri ction. In Renton, the Supreme Court described "content-neutra l" speech restrictions as those that "are justified wi thout 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 Fed eral Wiretapping Act as: "(1) protecting the privacy of wire and oral communications, and (2) delineating on a unifo rm 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 p rivacy in adopting 18 U.S.C. S 2511, the provision that pr ohibits the interception of wire, oral, or electronic commu nications,

as well as the use or disclosure of the contents of illegally intercepted communications. Congress did not, howev er, define the privacy interest that it intended the Ac t to protect.

As commonly understood, the right to privacy encompasses both the right "to be free from unreaso nable intrusions upon [one's] seclusion" and the right to be free from "unreasonable publicity concerning [one's] pri vate 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. Vern iero, 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 interestsfi rst, by prohibiting the surreptitious interception of priva te communications in the first instance -- a highly of fensive

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

second, by circumscribing the dissemination of priv ate information so obtained." Fultz, 942 F.2d at 401 (f ootnote omitted). The First Circuit has similarly suggested that by enacting Title III Congress recognized "that the in vasion of privacy is not over when the interception occurs bu t 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 reco rding 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 i nterest in protecting the latter privacy right -- the right not to have intimate facts concerning one's life disclosed with out one's consent. That right is a venerable one whose consti tutional significance we have recognized in the past. See Pa ul P., 170 F.3d at 401-02 (collecting cases). We also have no doubt that the prohibition on using or disclosing t he contents of an illegally intercepted communication serves that interest by deterring the publicization of pri vate facts.

We are less certain, however, that the desire to pr otect the privacy interest that inheres in private facts is a content-neutral justification for restricting speec h. The Supreme Court has instructed that "[l]isteners' rea ction to speech is not a content-neutral basis for regulatio n." Forsyth County v. Nationalist Movement, 505 U.S. 12 3, 134 (1992); accord Lind v. Grimmer, 30 F.3d 115, 117 (9 th Cir. 1994) ("Because the[ ] concerns [addressed by the s tatute] all stem from the direct communicative impact of sp eech, we conclude that section 11-216(d) regulates speech on the basis of its content.") As Justice O'Connor explain ed in Boos, "[r]egulations that focus on the direct impac t of speech on its audience" -- the speech's "primary ef fects" -- are not properly treated as content-neutral under R enton. 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 wit h the disclosure of private facts stems from the communic ative impact of speech that contains those facts, i.e. ha ving

21others learn information about which one wishes the y had

remained ignorant. Thus, under the Supreme Court's jurisprudence, the injury associated with such disc losure constitutes a "primary effect" of the disfavored sp eech, rather than a "secondary effect." This reasoning mi ght suggest that a statute that regulated expression fo r the purpose of protecting the right not to have private facts disclosed without permission would be subject to st rict 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 e schews reliance on that justification in explaining the pu rpose 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 reaso ns that "prohibiting the use of illegally intercepted commu nication . . . `strengthen[s] subsection (1)(a),' the provis ion that imposes the underlying ban on unauthorized intercep tion, `by denying the wrongdoer the fruits of his labor' and by eliminating the demand for those fruits by third pa rties."

United States' Br. at 33. We are satisfied that thi s latter justification does not rely on the communicative im pact of speech and, therefore, that the Acts are properly t reated as

content-neutral.

D.

Accordingly, we adopt the government's position tha t we should apply intermediate scrutiny in our analysis of the issue before us. In doing so, we must first fix upo n an acceptable definition of the term "intermediate scr utiny."4

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4. In a recent article, the author uses the term" ` intermediate scrutiny' to refer to a test that requires a state interest w hich is greater than legitimate but less than compelling and a fit betwe en means and end that is not necessarily narrowly tailored but has m ore than just an incidental connection." Jay D. Wexler, Defending th e Middle Way: Intermediate Scrutiny as Judicial Minimalism, 66 Ge o. Wash. L. Rev. 298, 300 n.15 (1998).

22Intermediate scrutiny is used by the Court in a wid e variety

of cases calling for some balancing. Thus, intermed iate scrutiny has been applied to statutes that discrimi nate on the basis of gender. See Craig v. Boren, 429 U.S. 1 90, 200 (1976) (holding that prohibiting sale of 3.2% beer to males under 21 and females under 18 did not "closely serv e" goal of promoting traffic safety). It is the review stan dard used to examine whether an even-handed regulation promulgat ed for a legitimate public interest violates the dorma nt Commerce Clause. See Pike v. Bruce Church, Inc., 39 7 U.S. 137, 142 (1970) (describing balancing test for stat e regulation); Southern Pac. Co. v. Arizona ex rel. S ullivan, 325 U.S. 761 (1945) (invalidating limit on train le ngth as not "plainly essential" to further state interest i n safety). And in the First Amendment context, intermediate sc rutiny has been applied to commercial speech cases, see Ce ntral Hudson Gas & Elec. Corp. v. Public Serv. Comm'n., 4 47 U.S. 557, 566 (1980) (establishing four-part test for co mmercial 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 prohibiti ng 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 sta te

interest and the means used to effectuate that inte rest. And despite the frequent tendency to assume that regula tions 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 reg ulation in question was unconstitutional. The reasons varie d. Sometimes, the Court held the asserted government interest insufficient to justify an expansive prohi bition and noted the government failed to demonstrate that a l esser 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). O ther

23times, 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) (invali dating candidate registration statute because voters' asso ciational and voting rights outweighed state interest).

The test usually applied in First Amendment cases t o content-neutral regulation requires an examination of whether the regulation is "narrowly tailored to ser ve a significant governmental interest" and "leave[s] op en 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 Ame ndment cases in which the Supreme Court, applying intermed iate scrutiny, has found that the regulation at issue, a lbeit designed to advance legitimate state interests, fai led to withstand that scrutiny. A review of illustrative c ases provides some indication of the Court's analytic ap proach

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 th e streets clean and of good appearance is insufficien t to justify an ordinance which prohibits a person right fully on a public street from handing literature to one will ing to

receive it." 308 U.S. at 162. The Court termed the burden imposed on the cities in cleaning and caring for th e streets "an indirect consequence of such distribution," and one that resulted from the "constitutional protection o f the freedom of speech and press." Id. The Court continu ed, in language significant for this case, "[t]here are ob vious methods of preventing littering. Amongst these is t he punishment of those who actually throw papers on th e streets." Id. (emphasis added).

Similarly, in Village of Schaumburg, the Court reco gnized that the government had a substantial interest in

24protecting the public from fraud, crime and undue

annoyance, but held that the proffered interest, wh ich the government sought to accomplish by an ordinance tha t prohibited the solicitation of contributions by cha ritable organizations that did not use at least 75% of thei r receipts for "charitable purposes," was "only peripherally p romoted by the 75-percent requirement and could be sufficie ntly served by measures less destructive of First Amendm ent

interests." 444 U.S. at 636.

Both Schneider and Schaumburg were cited by the Cou rt

in a later case to illustrate "the delicate and dif ficult task [that] falls upon the courts to weigh the circumsta nces and to appraise the substantiality of the reasons advan ced in support of the regulation of the free enjoyment of[ First Amendment] rights." Schad v. Borough of Mount Ephra im, 452 U.S. 61, 70 (1981) (quoting Schneider, 308 U.S. at 161). In Schad, the Court invalidated a zoning ordi nance that excluded live entertainment, including nude da ncing, throughout the borough after finding that the borou gh "ha[d] not adequately justified its substantial res triction 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 substantial ity 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 app lication 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 confide ntiality of wire, electronic, and oral communications." Unit ed

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

interest. We do not understand the defendants to de ny that there is an important governmental interest served by the Wiretapping Acts. However, the government recognize s that not all of the provisions of the Wiretapping Acts a re being challenged. In fact, only a portion of those Acts a re 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 pro tect 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 pa rties." United States' Br. at 33. In this case, however, th ere is no question of "denying the wrongdoer the fruits of hi s labor." The record is devoid of any allegation that the def endants 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 interc eption and thereafter disclosed the intercepted material is no t before

us.

We therefore focus on the United States' second contention -- that the provisions promote privacy b y eliminating the demand for intercepted materials on the part of third parties. The connection between prohi biting 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 it s ipse dixit in support of its suggestion that imposing th e 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 deter red any other would-be interceptors.5 Given the indirectnes s of the

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5. As the Supreme Court recently emphasized in inva lidating a prohibition on the receipt of honoraria by governme nt employees, "[w]hen the government defends a regulation on speech . . . it must do more than simply `posit the existence of the disease sou ght to be cured.' . . .

26manner in which the United States claims the provis ions

serve its interest, we are not prepared to accept t he 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 ass ertion and conjecture to support its claim that without cr iminal sanctions the objectives of the statutory scheme wo uld be seriously undermined."). Faced with nothing "more t han assertion and conjecture," it would be a long stret ch indeed to conclude that the imposition of damages on defen dants who were unconnected with the interception even "peripherally promoted" the effort to deter interce ption. 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 unnecessari ly interfering with First Amendment freedoms. H ynes v. Mayor of Oradell, 425 U.S. at 620; First Nat ional Bank of Boston v. Bellotti, 435 U.S. 765, 786 (19 78)."Broad prophylactic rules in the area of free expre ssion 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 c ould be better served by requiring solicitors to inform the public of the uses made of their contributions, than by prohi biting 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

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It must demonstrate that the recited harms are real , not merely conjectural, and that the regulation will in fact a lleviate these harms in

a direct and material way." United States v. National Treasury Employees Union, 513 U.S. 454, 475 (1995) (citation and inter nal quotation omitted) (emphasis added).

27draconian impact on First Amendment values, the Cit y

could have used the less restrictive means of punis hing those who trespass "in defiance of the previously e xpressed will of the occupant." Indeed, the Wiretapping Acts already provide for punishment of the offender, i.e., the i ndividual 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 pr ohibiting leafleting). Those who indirectly participated in t he interception, either by aiding or abetting, would a lso fall within the sanctions provided by the statute. There fore, the government's desired effect can be reached by enfor cement of existing provisions against the responsible part ies rather than by imposing damages on these defendants.

We are also concerned that the provisions will dete r significantly more speech than is necessary to serv e the government's asserted interest. It is likely that i n many instances these provisions will deter the media fro m publishing even material that may lawfully be discl osed under the Wiretapping Acts.

Reporters often will not know the precise origins o f information they receive from witnesses and other s ources, nor whether the information stems from a lawful sou rce. Moreover, defendants argue that they cannot be held liable for use and publication of information that had pre viously been disclosed. Assuming this is so, reporters may have difficulty discerning whether material they are con sidering publishing has previously been disclosed to the pub lic. 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 "timidit y and self-censorship" that may result from permitting th e media to be punished for publishing certain truthful info rmation. See, e.g., Florida Star, 491 U.S. at 535; Cox Broad casting, 420 U.S. at 496. The public interest and newsworthi ness of the conversation broadcast and disclosed by the def endants are patent. In the conversation, the president of a union engaged in spirited negotiations with the School Bo ard suggested "blow[ing] off [the] front porches" of th e School

28Board members. Nothing in the context suggests that this

was said in anything other than a serious vein. Cer tainly, even if no later acts were taken to follow through on the statement, and hence no crime committed, the fact t hat the president of the school teachers' union would count enance the suggestion is highly newsworthy and of public significance. Our concerns are only heightened by t he Supreme Court's admonition in Smith that"state acti on to punish the publication of truthful information seld om 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 applicati on of [the agreed upon] analysis to the case at bar." Dissenti ng Op. at 36. Therefore, we add only a few brief comments per taining 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 Co urt's decisions in Schneider, Struthers, and Schaumburg a re not pertinent to this case because the state interests in those cases (littered streets, annoying door-to-door pros elytizers,6 and fraudulent charitable solicitors, respectively) were "not very important." The dissent contrasts those intere sts with the significant governmental interest at issue here -- that of maintaining the confidentiality of wire, electro nic, and

oral communications.

Presumably, the dissent's point is that we must wei gh more heavily the privacy interests furthered by the Wiretapping Acts than the Court weighed the state i nterests in the three cited cases. Given the conceded import ance of privacy and confidentiality at issue here, we nonet heless find it difficult to accord it more weight than the interests in preventing disclosure of the name of a rape vict im, the identity of a judge in a putative disciplinary proc eeding, or the identity of a youth charged as a juvenile offen der at issue in Cox Broadcasting, Landmark Communications and

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6. The dissent fails to mention that one of the pur poses for the ordinance referred to by the Court in Struthers was crime pre vention. See 319 U.S.

at 144-45.

29Smith, respectively. Yet when faced with each of th ose

circumstances, the Supreme Court determined that de spite the strong privacy interest underlying the statutor y and state constitutional provisions punishing disclosur e of such information, the interests served by the First Amen dment must take precedence.7 It would be difficult to hol d that privacy of telephone conversations are more "import ant" than the privacy interests the states unsuccessfull y championed in those cases.

In addition, we do not share the dissent's confiden ce 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 nexu s in the legislative landscape, where half of the states tha t prohibit wiretapping also authorize civil damage actions. Wi th due respect, we find this a slim reed, not only because it appears from the dissent's statistics that the othe r half of the states with wiretapping statutes have not inclu ded a damage provision but because the incidence of state statutes, and hence "widespread legislative consens us," does not prove the deterrent effect of the prohibit ion. Indeed, there is not even general agreement as to t he deterrent effect of a criminal statute on the perpe trator,8 much less on those who were not in league with the perpetrator. In determining whether a regulation th at restricts First Amendment rights "substantially ser ves [its asserted] purposes," see Grace, 461 U.S. at 182, th e Court has never found that question satisfied by sheer nu mbers

of state statutes.

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7. Although we acknowledge that those decisions aro se 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 fr eedom and privacy rights. This is bemoaned by the dissenting Justices in The Florida Star, who state candidly they "would strike the balance r ather 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 c onnection with capital punishment in Chief Justice Burger's dissen ting opinion in Furman v. Georgia, 408 U.S. 238, 395-96 (1972).

30The dissent engages in hyperbole when it suggests t hat

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." Dissenti ng Op. at 42. The statutes, which are designed to prohibit an d punish wiretapping, remain unimpaired. All that is at issue is the application of those statutes to punish memb ers of the media who neither encouraged nor participated d irectly or indirectly in the interception, an application r arely 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 cour t upheld the constitutionality of S 2511(1)(c), all three ju dges emphasized in their separate opinions that there wa s no effort to impose civil damages on the newspapers (T he New York Times, et al.) which had printed the details o f a conversation that been illegally intercepted. Thus, for example, in the lead opinion the court stated at th e outset, "[n]or should we be concerned with whetherS 2511(1) (c) would be constitutional as applied to the newspaper s who published the initial stories about the illegally-i ntercepted conference call." Id. at 467. Liability in that cas e was sought to be imposed on James McDermott, a congress man who caused a copy of the tape to be given to the newspapers. Although technically, defendant Yocum i n our case stands in the same position as McDermott, i.e. as the source but not the interceptor, there is an indicat ion in Boehner that McDermott was more than merely an inno cent conduit. Indeed, McDermott, unlike Yocum, knew who intercepted the conversation because he "accepted" the tape from the interceptors and, the opinion suggests, no t only sought to embarrass his political opponents with th e tape but also promised the interceptors immunity for the ir 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 con currence to the decision that S 2511(1)(c) "is not unconstituti onal as applied in this case," id. at 478 (emphasis added), and pointed out that "McDermott knew the transaction wa s illegal at the time he entered into it," id. at 47 9. In contrast,

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

transaction with the interceptors. In the posture o f this case, all parties accept his allegation that the ta pe was left

in his mailbox.

The Boehner court was acutely aware that no court h as yet held that the government may punish the press t hrough imposition of damages merely for publishing informa tion of public significance because its original source acq uired that

information in violation of a federal or state stat ute. Cf. Landmark, 435 U.S. at 837 (finding it unnecessary t o adopt categorical approach). As noted earlier in this opi nion, the Supreme Court has been asked to permit a state to p enalize 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. S ee 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 signific ant interest in protecting privacy is not sufficient to justify the serious burdens the damages provisions of the Wiret apping Acts place on free speech. We are skeptical that th e burden these provisions place on speech will serve to adva nce the government's goals. Even assuming the provisions mi ght advance these interests, the practical impact on sp eech 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 th e test of intermediate scrutiny and may not constitutional ly be applied to penalize the use or disclosure of illega lly intercepted information where there is no allegatio n that the defendants participated in or encouraged that interception. It follows that we need not decide wh ether these provisions leave open ample alternative chann els for

communication of information.

32III.

CONCLUSION

For the reasons set forth, we will reverse the orde r of the District Court denying summary judgment to the defendants, and will remand with directions to gran t that

motion.

33POLLAK, District Judge, dissenting.

The Court of Appeals for the District of Columbia C ircuit has recently determined, in Boehner v. McDermott, 1 91 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 cop ies of a tape recording of a telephone conversation which the defendant had "knowledge and reason to know" had be en unlawfully intercepted.1 Today this court holds tha t the

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1. In Boehner v. McDermott, the plaintiff, John Boe hner, is a Republican Representative who, together with other members of the Republican leadership of the House of Representatives (includi ng then Speaker Gingrich), was in 1996 party to a conference teleph one call that was unlawfully intercepted by persons equipped with a r adio scanner. According to Representative Boehner's complaint, th e interceptors turned over the tape to James A. McDermott, a Democratic R epresentative who was at the time the ranking minority member of the House Ethics Committee; Representative McDermott in turn gave co pies of the tape to the New York Times and other newspapers; and the Ne w 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 di smissed Representative Boehner's complaint on First Amendme nt grounds. The

circuit court reversed.

The circuit court perceived a potentially important distinction between Representative McDermott's First Amendment claim an d the First Amendment claim that might have been made by the Ne w York Times or another newspaper, if a newspaper had been named as a defendant. Identifying that potential distinction, the court w as at pains to confine its analysis to Representative McDermott's claim:

McDermott's liability under S 2511(1)(c) res ts on the truth of two allegations: that he "caused a copy of the t ape" to be given to the newspapers; and that he "did so intentionall y and with knowledge and reason to know that the recorded phone c onversation had been illegally intercepted (as the cover letter o n its face disclosed)." Complaint P 20. Although the circumstances o f McDermott's transactions with the newspapers, including who said what to whom, may become evidence at trial, it is hi s conduct in delivering

34First Amendment does bar a civil damage action brou ght,

pursuant to the Federal statute and its Pennsylvani a counterpart, against (1) one who handed over a copy of a taped telephone conversation to a radio reporter, a nd (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 t he radio reporter had, in the statutory language, "rea son to know" that the taped conversation had been intercep ted in contravention of the federal and Pennsylvania statu tes. In the case decided today the court addresses a broade r range of issues then those presented in Boehner v. McDerm ott: in Boehner v. McDermott the only defendant was the per son who allegedly delivered to the media a copy of a ta pe of an allegedly wrongfully intercepted telephone conversa tion; in

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the tape that gives rise to his potential li ability under S 2511(1)(c). McDermott's behavior in turning over the tap es doubtless conveyed a message, expressing something about him. A ll behavior does. But

not all behavior comes within the First Amen dment.

"[E]ven on the assumption that there was[som e] 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 (196 8). The O'Brien framework is the proper mode of First Amendm ent analysis in this case. McDermott's challenge is only to the s tatute as it applies to

his delivery of the tape to newspapers. Whether a different analysis would govern if, for instance, McDermott vio latedS 2511(1)(c) by reading a transcript of the tape in a news c onference, is therefore

a question not presented here. Nor should we b e 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 Randolp h. Judge Ginsburg filed a concurring opinion, joining part ( including the paragraphs just quoted) of Judge Randolph's opinion . Judge Santelle filed a dissenting opinion.

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

to the defendant who allegedly delivered to the med ia a copy of a tape of an allegedly wrongfully intercept ed 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

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2. The Boehner v. McDermott court was at pains to p oint out the limited scope of its ruling. See note 1, supra . See also n ote 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 t he distinction the

Boehner v. McDermott court drew between the First A mendment posture of Representative McDermott and the potential First Amendment posture of a newspaper that published (as the New York Time s in fact did) a portion of the intercepted telephone conference cal l, had such a newspaper been sued. As the Boehner v. McDermott e xcerpt quoted in footnote 1, supra, makes clear, the court was doubt ful that Representative McDermott's action in giving copies of the tape to newspapers was itself "speech" in the full First Am endment sense. Judge Randolph, speaking for the court, saw Representativ e McDermott's First Amendment claim as cabined by the Supreme Court's h olding in United States v. O'Brien, 391 U.S. 367, 376 (1968), that " when `speech' and `nonspeech' elements are combined in the same cours e of conduct, a sufficiently important governmental interest in reg ulating the nonspeech element can justify incidental limitations on First Amendment freedoms."

In the case at bar, in which the plaintiffs have su ed 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. McDe rmott exposition of Representative McDermott's limited First Amendment posture persuasive, and thus in the case at bar I would app ly the O'Brien approach to defendant Yocum -- whose role, from a F irst Amendment perspective, seems analogous to that of Representat ive McDermott -- while rejecting O'Brien as the proper approach to t he First Amendment claims of the media defendants. However, the distin ction 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 nonet heless wind up

36I.

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 invok ed by plaintiffs seeking damages for defendants' alleged disclosure and use of a taped telephone conversatio n 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. S tat. S 5703(2) -- are "content neutral." I further agree with the court that the proper standard to be applied in tes ting the constitutionality of the federal and Pennsylvania s tatutes as here applied is "intermediate scrutiny." Finally, I agree with the court that intermediate scrutiny "always encomp asses some balancing of the state interest and the means used to effectuate that interest." Slip Op., p. 23. Concret ely, such scrutiny calls for judicial assessment of whether t he challenged regulation is "narrowly tailored to serv e a significant governmental interest." Clark v. Commun ity for Creative Non-Violence, 468 U.S. 288, 293 (1984). 4

Where I part company with the court is in its appli cation of intermediate scrutiny in this case.

A.

The court begins by acknowledging what I take to be beyond dispute: namely, that the professed governme ntal

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disagreeing with the court on how the court's analy tic approach plays out as applied, with the result that I conclude tha t liability in damages could constitutionally have been imposed both on Yo cum and on the media defendants if the plaintiffs had been permitt ed to take their case to trial and had proved their allegations to the sa tisfaction of the factfinder.

4. The other criterion identified in Clark v. Commu nity for Creative NonViolence -- namely, whether the challenged regulati on "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, pla ce or manner restrictions." Ibid. And see id. at 295.

37interest -- the interest of the United States (whic h is

presumably also Pennsylvania's interest) in "mainta in[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 chal lenged 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 ser ve [that] significant governmental interest" -- the court und ertakes

to "focus on the United States' . . . contention . . . that the provisions promote privacy by eliminating the deman d for intercepted materials on the part of third parties. " Slip Op., p. 26. The court then proceeds as follows:

The connection between prohibiting third par ties from using or disclosing intercepted material and preventing the initial interception is indirect at best . The United States has offered nothing other than its ip se dixit in support of its suggestion that imposing the substantial statutory damages provided by the Acts on Yo cum or the media defendants will have any effect on the unknown party who intercepted the Bartnicki- Kane

conversation. Nor has the United States offe red any basis for us to conclude that these provisio ns have deterred any other would-be interceptors. Gi ven the

indirectness of the manner in which the Unit ed States claims the provisions serve its interest, we are not prepared to accept the United States' unsupp orted allegation that the statute actually produce s the hypothesized effect. See Landmark Communicat ions, Inc. v. Virginia, 435 U.S. 829, 841 (1978) ( "The

Commonwealth has offered little more than as sertion and conjecture to support its claim that wit hout criminal sanctions the objectives of the sta tutory scheme would be seriously undermined."). Fac ed with nothing "more than assertion and conjecture, " it would be a long stretch indeed to conclude that th e imposition of damages on defendants who were unconnected with the interception even "peri pherally promoted" the effort to deter interception. See Village of Schaumburg, 444 U.S. at 636.

38When the state seeks to effectuate legitima te state

interests,

it must do so by narrowly drawn regulations designed to serve those interests without unnecessarily interfering with First Amendme nt freedoms. Hynes v. Mayor of Oradell, 425 U.S . at 620; First National Bank of Boston v. Bellot ti , 435 U.S. 765, 786 (1978). "Broad prophylactic ru les in the area of free expression are suspect. Pre cision of regulation must be the touchstone. . . ." NA ACP 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 contributio ns, 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 do or-to-door solicitation, with its draconian impact on F irst Amendment values, the City could have used t he less restrictive means of punishing those who tre spass"in defiance of the previously expressed will of the occupant." Indeed, the Wiretapping Acts alre ady provide for punishment of the offender, i.e. , the individual who intercepted the wire communic ation and who used or disclosed it. See Schneider, 308 U.S. at 162 (city should prevent littering by pun ishing litterers, not by prohibiting leafleting). T hose who indirectly participated in the interception, either by aiding or abetting, would also fall within t he sanctions provided by the statute. Therefore, the gove rnment's desired effect can be reached by enforcement of existing provisions against the responsible parties rather than by imposing damages on these def endants.

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]h e connection between prohibiting third parties from u sing or

39disclosing intercepted material and preventing the initial

interception is indirect at best." "[P]reventing th e 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 communicati ons, and (2) delineating on a uniform basis the circumst ances 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, 2 153. Unauthorized interception of a communication is pro hibited -- and made both a criminal offense and an event gi ving rise to civil liability -- both to protect parties to a communication from an initial trespass on their pri vacy and to protect them from subsequent disclosure (and /or other detrimental use). "Unless disclosure is prohi bited, there will be an incentive for illegal interception s; 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 u nlawful 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 th erefore `essential' for Congress to impose upon third parti es, 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 legislati ve prohibition on unauthorized interception and the le gislative imposition upon "third parties, that is, upon those not responsible for the interception, [of] a duty of no ndisclosure," 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 persuasiv eness because it is not supported by a demonstration that "imposing the substantial statutory damages provide d by

the Acts on Yocum or the media defendants will have any effect on the unknown party who intercepted the Bar tnickiKane conversation," or "that these [statutory] prov isions 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. Virgi nia, 435 U.S. 829 (1978). It is true that in Landmark, in wh ich the Supreme Court struck down, as applied to a newspape r, a

40statute making it a misdemeanor to "divulge informa tion"

about confidential proceedings conducted by Virgini a's Judicial Inquiry and Review Commission, the Court observed that "[t]he Commonwealth has offered littl e more than assertion and conjecture to support its claim that without criminal sanctions the objectives of the st atutory scheme [which contemplated a process of confidentia l inquiry into alleged judicial misconduct] would be seriously undermined." But the special -- and limited-- perti nence 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 se rves legitimate state interests. The question, ho wever, is whether these interests are sufficient to ju stify the encroachment on First Amendment guarantees w hich the imposition of criminal sanctions entails with respect to nonparticipants such as Landmark. The

Commonwealth has offered little more than as sertion and conjecture to support its claim that wit hout criminal sanctions the objectives of the sta tutory scheme would be seriously undermined. While not dispositive, we note that more than 40 State s having

similar commissions have not found it necess ary to enforce confidentiality by use of criminal s anctions against nonparticipants.

435 U.S. at 841. In striking contrast is the legisl ative landscape that forms the setting of the case at bar

. Complementing the federal statute are more than for ty state wiretapping statutes. Of these state statutes

, approximately half have provisions which, like the federal statute, (1) prohibit disclosure or use of an inter cepted conversation by one who knows or has "reason to kno w" that the interception was unlawful, and (2) authori ze civil damage actions against one who discloses or uses su ch unlawful interception. As this case illustrates, Pe nnsylvania

is one of those states. So are Delaware and New Jer sey -- 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 prov isions of

41the federal and Pennsylvania legislation challenged by

defendants in the case at bar.5

In short, there appears to be a widespread legislat ive 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 d esigned to protect the privacy of private conversations. Mo reover, 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 s pells 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 cou rt 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-pertine nce to the case at bar of Schneider v. State, 308 U.S. 147 (1939), Martin v. Struthers, 319 U.S. 141 (1943), a nd Village of Schaumburg v. Citizens for a Better Environment, 444 U.S. 620 (1980), cases cited by the court as illust rative of the proposition that regulations designed to promot e significant governmental interests should not sweep so broadly as to impose unnecessary constraints on Fir st Amendment rights of free expression and communicati on. The constitutional shortcomings in Schneider (comba ting the littering of streets by curbing leafleting), St ruthers (banning door-to-door distribution of circulars, in cluding religious literature, in order to protect homeowner s from

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5. Fla. Stat. Ann. SS 934.03, 812.15; Haw. Rev. Sta t. SS 803-42(a)(3), 803-48; Idaho Code SS 18-6702, 18-6709; 720 Ill. Co mp. 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.

42annoyance), and Village of Schaumburg (combating al legedly

fraudulent charitable solicitation by banning all s olicitation by groups not disbursing 75% of receipts) involved situations in which small towns imposed on traditio nal First Amendment activities pervasive constraints so ught to be justified as ways of dealing with distinct (and not very important) problems that could have been more effec tively addressed by governmental action directed at the ac tual problems - e.g., prosecuting litterers (Schneider); prosecuting as trespassers solicitors who do not de part when requested by homeowners to do so (Struthers ); requiring organizations soliciting contributions to disclose how receipts are used (Village of Schaumburg). In t he case at bar, unauthorized disclosure (or other use) of p rivate conversations is a central aspect of the very evil the challenged statutory provisions are designed to com bat.

B.

The court also notes that "[r]eporters often will n ot know the precise origins of information they receive fro m witnesses and other sources, nor whether the inform ation stems from a lawful source," or, indeed, "whether m aterial they are considering publishing has previously been disclosed to the public." Slip Op., p. 28, As a res ult, the court opines, "[i]t is likely that in many instance s these [challenged statutory] provisions will deter the me dia from publishing even material that may lawfully be discl osed under the Wiretapping Acts." Ibid.

I think the court overstates the potential problems of the media. One would suppose that a responsible journal ist -- whether press or broadcast -- would be unlikely to propose publication of a transcript of an apparently newswo rthy

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 p art of such an inquiry, the question whether the parties to the conversation had authorized its recording and relea se, or whether others had lawfully intercepted the convers ation, would seem naturally to arise. Moreover, current te chnology would make it relatively easy to determine whether the

43conversation 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" tha t a published conversation was unlawfully intercepted i s called on to contest before a judicial fact-finder (whethe r jury or judge) a plaintiff 's allegation of knowledge or"re ason to

know." But the difficulties attendant on fact-finde r oversight of journalistic practice (or, indeed, of public disclosure by non-journalists) can, I believe, be m et by adoption of the procedural proposals advanced in th e brief

for the United States:

In criminal prosecutions under Title III, s cienter must be proved beyond a reasonable doubt. In civi l cases scienter ordinarily would be subject to a co nventional preponderance-of-the-evidence standard. When a claim is brought for disclosure of information abo ut matters of public significance by persons who were n ot involved in the illegal interception, however, a prep onderance- of-the-evidence standard may operate to dete r 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

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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 appea rs that defendant Vopper did not broadcast the conversation until som e months after defendant Yocum gave him a copy of the tape. Deposi tion of Frederick W. Vopper, App. 60a-61a. On the other hand, the New Yo rk 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"ma de . . . available to the New York Times" by "a Democratic Congressman ho stile to Mr. Gingrich who insisted that he not be identified fur ther" and who told the Times that the tape had been given to him [on Janua ry 8, 1997] by a couple who said the tape "had been recorded [on Dec ember 21, 1996] off a radio scanner, suggesting that one participant wa s using a cellular telephone." N.Y. Times, January 10, 1997, p.1, col. 3.

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

appellate courts to conduct independent revi ew of the findings of the trier of fact. Cf. Gertz v. Robert Welch, Inc., 418 U.S. 323, 342 (1974) (requiring cl ear and convincing evidence of "actual malice" in de famation cases); Bose Corp. v. Consumers Union of Uni ted 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 circu mstances 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 Amend ment values of free speech and press are among the value s most

cherished in the American social order. Maintenance of these values (and the other values of the Bill of R ights) against overreaching by the legislature or the exec utive 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 sta nd are countered by privacy values sought to be advanc ed by Congress and the Pennsylvania General Assembly that are of comparable - indeed kindred - dimension. Three d ecades 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

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7. The court's decision has the anomalous consequen ce of cloaking Yocum, who is not a "media defendant", with the Fir st Amendment protections the court deems appropriate for radio r eporter Vopper and the two radio stations. I have undertaken to explai n in footnote 3, supra, that in my judgment Yocum has a far more tenuous Fi rst Amendment claim (if any) than the media defendants. I do not think that, merely by virtue of the fortuity that the plaintiffs have ele cted to sue Yocum and the media defendants (which the plaintiff in Boehne r v. McDermott did not do), Yocum becomes a third-party beneficiary of whatever First Amendment protections may accrue to the media defen dants.

45approval, Harper & Row Publishers v. National Enter prises,

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

The essential thrust of the First Amendment is to prohibit improper restraints on the voluntar y 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 de fined areas, a concomitant freedom not to speak publicly, one which serves the same ultimate end as freedo m of speech in its affirmative aspect.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

46