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U.S. Supreme Court hears arguments in cellular-wiretapping case

By Raju Chebium
CNN.com Correspondent

WASHINGTON (CNN) -- The U.S. Supreme Court on Tuesday heard arguments in a case questioning whether anti-wiretapping laws violate the First Amendment rights of reporters to publicize newsworthy information they receive from anonymous eavesdroppers.

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The justices were called upon to strike a balance between free speech rights and the privacy expectations of individuals using cellular telephones and other modern wireless communication tools.

Bartnicki v. Vopper and U.S. v. Vopper, two conjoined cases, involved a federal law that Congress first adopted in 1968 and a similar Pennsylvania statute. The laws seek to protect the privacy of "wire, oral and electronic communications."

The laws impose fines of up to $5,000 on those who illegally tap into conversations; the constitutionality of that penalty was not before the court.

At issue was the constitutionality of related provisions allowing lawsuits and imposing prison times on those who disseminate illegally obtained information even if they do not know who did the wiretapping and played no part in the illegal act.

Brief background of case

The cases arose out of an intercepted cell-phone conversation in May 1993 between Pennsylvania teacher's union officials Gloria Bartnicki and Anthony Kane.

Discussing difficult talks with school district officials over teacher pay raises, a frustrated Kane said, "We're gonna have to go to their homes ... to blow off their front porches, we'll have to do some work on some of those guys."

Someone whose identity remains a mystery to this day tapped into the call, recorded it and dropped it in the mailbox of Jack Yocum. He gave the tape to local radio host Frederick Vopper, who played the tape on his news talk show. Television stations and newspapers also carried transcripts of the call, which the media said was in the public interest.

Bartnicki and Kane sued Vopper, Yocum and two radio stations that carried Vopper's program. The federal government joined Bartnicki and Kane's side in a bid to prevent the laws from being overturned.

Bartnicki won at the trial court and Vopper won before an appeals panel, prompting the appeal to the nation's highest court.

Bartnicki's and the government's arguments

"We know the press could get information through wiretaps," argued Jeremiah Collins, the lawyer for Bartnicki and Kane. "We say to the press, 'You can't do that.'"

"If the same information comes from any other source, you can use it with impunity," agreed U.S. Solicitor General Seth Waxman, the federal government's top litigator specializing in Supreme Court cases.

Collins said cell-phone conversations between two people are inherently private and urged the high court to keep it that way.

"There is a vital interest in people having a private place in their lives," he said.

Allowing the media to publicize illegally obtained information compounds the violation by the eavesdropper because "100,000 people have heard their conversation," he argued.

Collins and Waxman told the court the laws are "content neutral" because they do not forbid some types of speech while allowing others. They added that the high court has never overturned content neutral laws as unconstitutional on First Amendment grounds.

Waxman said the federal law penalized the users and disseminators of illegally obtained information to indirectly curb eavesdropping by eliminating the market for them to sell their information.

Congress included penalties for the users of illegally obtained information because lawmakers knew that the interceptors would be "impossible to find," Waxman said.

Justice Anthony Kennedy appeared to disagree that Bartnicki and Vopper should win the case on privacy grounds. He said the local media reported on the conversation because it was in the public interest.

"What you are doing here is you are suppressing speech that is valuable to the public," he told Waxman.

Waxman replied that the media did not receive illegally obtained material in prior cases involving speech in the public interest.

The high court historically has overturned laws that infringe on "speech" in the public interest, often giving the media unfettered rights to report such material.

For instance, in the 1971 Pentagon Papers case, the high court refused the government's request to prevent the New York Times and The Washington Post from reporting on a confidential report criticizing the government's actions during the Vietnam War.

Justice Sandra Day O'Connor said that when she was a trial court judge she encountered a case where someone intercepted a phone call in which the parties were discussing a murder. If the interceptor turns over a tape of that call to the police, should he or she be punished, she asked?

"How is the public interest served by that?" she asked Collins.

Collins said the wiretapping laws do provide some exceptions, adding, "An action to protect life and limb may be an exception."

Arguments from the media and Yocum

Lee Levine, lawyer for Vopper and radio stations WILK and WGBI, said the non-dissemination provisions of the statutes restrict the abilities of the reporters to effectively inform the public about newsworthy matters.

It should not matter how the media obtains information as long as the material "is true and a matter of public interest," he said.

"This statute is a direct prohibition of speech itself.... This statute prohibits too much speech," he said. "I don't think content neutrality even applies."

He said there was no evidence that the government could not identify the interceptor of the Bartnicki-Kane call, suggesting that that person should be held liable and not his media clients.

Justice Antonin Scalia said Levine's side seemed to be arguing that eavesdroppers have an absolute right to intercept any conversation and "publish it in the Washington Post."

"It doesn't seem unreasonable for the government to say no," he said, adding that he never uses wireless phones while discussing court business.

Thomas Goldstein, representing Yocum, reiterated Levine's contention that the statute proscribes all speech.

"No one wants people tapping phones," he said. However, he added, "You have a statute that is so broad.... It applies even when information is of vital public significance."

He said if the media did not publicize the illegally obtained information, the statute does not apply. It kicks in only when the material is published or broadcast, and therefore has a chilling effect on reporters, he said.

But Justice David Souter argued that Congress passed the law to "dry up a market" for eavesdroppers and therefore put curbs on wiretapping itself.

Goldstein responded that there is no proof that eavesdropping is a major problem in this country.

Similarity to Gingrich controversy

The Pennsylvania case is similar to a well-publicized wiretapping of cell-phone conversations between leading congressional Republicans in 1996.

Rep. John Boehner, an Ohio Republican, was talking to House Republican leaders when a Florida couple picked up the call on their scanner, taped it and gave it to Democratic House Ethics Committee member Jim McDermott of Seattle, who publicized the tape.

The conversation involved the ethics panel's finding against then House Speaker Newt Gingrich. The Florida couple pleaded guilty to wiretapping and paid fines.

Boehner sued McDermott claiming his Fourth Amendment privacy rights were violated. McDermott said he had a First Amendment right to use the information any way he saw fit.

Boehner lost in the trial court, but the D.C. Circuit Court of Appeal overruled the lower court, ruling that McDermott's First Amendment rights were not violated.

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