US Supreme Court Briefs

Nos. 99-1687 and 99-1728

In the Supreme Court of the United States

GLORIA BARTNICKI AND ANTHONY F. KANE, JR., PETITIONERS

v.

FREDERICK W. VOPPER, AKA FRED WILLIAMS, ET AL.
UNITED STATES OF AMERICA, PETITIONER

v.

FREDERICK W. VOPPER, ET AL.
ON WRITS OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

BRIEF FOR THE UNITED STATES

SETH P. WAXMAN
Solicitor General
Counsel of Record
DAVID W. OGDEN
Assistant Attorney General
MICHAEL R. DREEBEN
Deputy Solicitor General
JEFFREY A. LAMKEN
Assistant to the Solicitor
General
DOUGLAS N. LETTER
SCOTT R. MCINTOSH
Attorneys
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217

QUESTION PRESENTED

Whether the imposition of civil liability under 18 U.S.C. 2511(1)(c)and (d) for using or disclosing the contents of illegally intercepted communications,where the defendant knows or has reason to know that the interception wasunlawful but is not alleged to have participated in or encouraged it, violatesthe First Amendment to the United States Constitution.

PARTIES TO THE PROCEEDINGS

Petitioners Gloria Bartnicki and Anthony F. Kane, Jr., were plaintiffsin the district court and appellees in the court of appeals. PetitionerUnited States of America appeared as an intervenor of right in the courtof appeals pursuant to 28 U.S.C. 2403(a). Respondents Frederick W. Vopper,a/k/a Fred Williams; Keymarket of NEPA, Inc., d/b/a WILK Radio; Lackazerne,Inc., d/b/a WGBI Radio; and Jack Yocum were defendants in the district courtand appellants in the court of appeals.

In the Supreme Court of the United States

No. 99-1687

GLORIA BARTNICKI AND ANTHONY F. KANE, JR., PETITIONERS

v.

FREDERICK W. VOPPER, AKA FRED WILLIAMS, ET AL.
UNITED STATES OF AMERICA, PETITIONER

v.

FREDERICK W. VOPPER, ET AL.
ON WRITS OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

BRIEF FOR THE UNITED STATES

 

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1a-58a1) is reported at200 F.3d 109. The opinions and orders of the district court (Pet. App. 59a-68a,69a, 70a-74a, 75a-76a) are unreported.

JURISDICTION

The judgment of the court of appeals was entered on December 27, 1999.The petitions for rehearing were denied on February 25, 2000. The petitionsfor writs of certiorari were granted on June 26, 2000. The jurisdictionof this Court is invoked under 28 U.S.C. 1254(1).

STATUTORY PROVISIONS INVOLVED

The First Amendment to the United States Constitution and relevant provisionsof Title III of the Omnibus Crime Control and Safe Streets Act of 1968,as amended, 18 U.S.C. 2510 et seq., are set forth in an appendix, infra,at 1a-10a.

STATEMENT

This case involves a constitutional challenge to provisions of TitleIII of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C.2510 et seq. (Title III), the principal federal wiretapping statute. TitleIII generally prohibits the interception of wire, oral, and electronic communications.The provisions at issue in this case-18 U.S.C. 2511(1)(c) and (d)-bar useand disclosure of the contents of illegally intercepted communications byany person who knows or has reason to know that the communications wereintercepted in violation of Title III.

1. Congress enacted Title III in 1968 in response to the widespread perceptionthat technology was rapidly eroding the security of otherwise private meansof communication. As the Senate Report on Title III explained, "tremendousscientific and technological developments" had made possible "widespreaduse and abuse of electronic surveillance"; as a result, the privacyof communications was being "seriously jeopardized." See S. Rep.No. 1097, 90th Cong., 2d Sess. 67 (1968) (1968 Senate Report). The 1968Senate Report continued:

Commercial and employer-labor espionage is becoming widespread. It isbecoming increasingly difficult to conduct business meetings in private.Trade secrets are betrayed. Labor and management plans are revealed. Nolonger is it possible, in short, for each man to retreat into his home andbe left alone. Every spoken word relating to each man's personal, marital,religious, political, or commercial concerns can be intercepted by an unseenauditor and turned against the speaker to the auditor's advantage.

Ibid.

The importance of offering protection against such intrusions was underscoredin the 1967 report of the President's Commission on Law Enforcement andAdministration of Justice, which was influential in the development of wiretaplegislation. See United States v. Giordano, 416 U.S. 505, 517-518 n.7 (1974);United States v. Jones, 542 F.2d 661, 667 n.10 (6th Cir. 1976). See also1968 Senate Report 67. The Commission observed:

In a democratic society privacy of communication is essential if citizensare to think and act creatively and constructively. Fear or suspicion thatone's speech is being monitored by a stranger, even without the realityof such activity, can have a seriously inhibiting effect upon the willingnessto voice critical and constructive ideas. When dissent from the popularview is discouraged, intellectual controversy is smothered, the processfor testing new concepts and ideas is hindered and desirable change is slowed.

President's Commission on Law Enforcement and Administration of Justice,The Challenge of Crime in a Free Society 202 (1967). "[E]lectronicsurveillance," the report noted, was being used by "numerous privatepersons" "to carry on industrial espionage," "to assistin preparing for civil litigation," to conduct "personnel investigations,"and for other purposes. Ibid.

Electronic surveillance has also been understood to threaten the developmentof new and vital channels of communication. While "[a] letter sentby first class mail is afforded a high level of protection," S. Rep.No. 541, 99th Cong., 2d Sess. 5 (1986), and "from the beginning ofour history, first-class mail has had the reputation for preserving privacy,while at the same time promoting commerce," Electronic CommunicationsPrivacy Act: Hearings Before the Subcomm. on Courts, Civil Liberties, andthe Administration of Justice of the House Comm. on the Judiciary, 99thCong., 1st & 2d Sess. 4 (1985 & 1986) (ECPA Hearings), that sameguarantee of privacy was absent with respect to the mails' "new technologicalequivalents." Id. at 2 (statement of Sen. Kastenmeier). See also id.at 4 ("We cannot let any American feel less confident in putting informationinto an electronic mail network than he or she would in putting it intoan envelope and dropping it off at the post office.").

To address those concerns, Title III provides a "comprehensive schemefor the regulation of wiretapping and electronic surveillance." Gelbardv. United States, 408 U.S. 41, 46 (1972). See also Pub. L. No. 90-351, Tit.III, § 801, 82 Stat. 211 (Title III designed "to protect effectivelythe privacy of oral and wire communications"). Title III bars the unauthorizedacquisition of wire, oral, and electronic communications through the useof electronic, mechanical, and other devices. Specifically, Section 2511(1)(a)provides that, "[e]xcept as otherwise specifically provided" inTitle III, it is unlawful for "any person" to "intentionallyintercept[], endeavor[] to intercept, or procure[] any other person to interceptor endeavor to intercept, any wire, oral, or electronic communication."See also 18 U.S.C. 2510(4) (defining the term "intercept" to meanacquisition of a "communication through the use of any electronic,mechanical, or other device.").2 Sections 2516 and 2518, in turn, setforth the procedures that must be employed, and the substantive criteriathat must be met, before a wiretap or other form of electronic surveillancemay be authorized under Title III. 18 U.S.C. 2516, 2518 (1994 & Supp.IV 1998). As this Court has explained, Section 2511(1)(a) is designed "effectivelyto prohibit, on the pain of criminal and civil penalties, all interceptionsof oral[,] [electronic,] and wire communications, except those specificallyprovided for in the Act." Giordano, 416 U.S. at 514.

In framing Title III, Congress concluded that merely prohibiting interceptionswould not be sufficient. It observed that "[o]nly by striking at allaspects of the problem" could "privacy be adequately protected."1968 Senate Report 69. Accordingly, Congress reinforced the prohibitionon unauthorized interception with several related restrictions. For example,Congress banned the possession, shipment, sale, manufacture, and advertisementof listening devices where the device's design "renders it primarilyuseful for the purpose of the surreptitious interception of wire, oral,or electronic communications." 18 U.S.C. 2512. And it prohibited theuse of the contents of illegally intercepted communications as evidencein any proceeding, including criminal prosecutions. 18 U.S.C. 2515.

In 18 U.S.C. 2511(1)(c) and (d), Congress also prohibited use and disclosureof the contents of illegally intercepted communications. Section 2511(1)(c)makes it unlawful for any person to "intentionally disclose[], or endeavor[]to disclose, to any other person the contents of any wire, oral, or electroniccommunication" if the person "know[s] or ha[s] reason to know"that the information "was obtained through the interception of a wire,oral, or electronic communication in violation of" Title III. Section2511(1)(d) makes it unlawful for any person with the same knowledge to "intentionallyuse[], or endeavor[] to use, the contents of any wire, oral, or electroniccommunication." Taken together, those two provisions proscribe allunauthorized uses of illegally intercepted communications by anyone withknowledge or reason to know of their unlawful origin. See also 50 U.S.C.1809 (similar prohibition); 47 U.S.C. 605 (1994 & Supp. IV 1998) (barringdivulgence of private wire and radio communications to individuals otherthan the addressee).

Violations of Title III may be prosecuted as criminal offenses or resultin the imposition of civil fines. 18 U.S.C. 2511(4) and (5). Title III alsoprovides a private cause of action for any person whose communication isintercepted, disclosed, or used in violation of the statute. 18 U.S.C. 2520(a).In a civil action under Title III, a court may award "such * * * reliefas may be appropriate," including declaratory and injunctive relief,compensatory damages or prescribed statutory damages, and punitive damages"in appropriate cases." 18 U.S.C. 2520(b) and (c).

2. This case arises out of the illegal interception of a telephone conversationbetween Gloria Bartnicki, the chief negotiator for a Pennsylvania teachersunion, and Anthony Kane, the union's president. The union was engaged incontract negotiations with a local school board, and Bartnicki and Kaneheld a confidential telephone conversation in which they discussed the statusof the negotiations; Bartnicki used a cellular telephone. Pet. App. 3a.Both the confidential nature of the conversation, and the fact that Bartnickiwas using a car phone, were obvious from the conversation itself. See J.A.43 ("[T]his is very confidential."); J.A. 42 (indicating thatBartnicki was in her car).

An unknown person intercepted the conversation, recorded it, and anonymouslydelivered a copy of the recording to respondent Jack Yocum. Yocum was presidentof a local taxpayers' association, formed for the purpose of opposing theunion's bargaining demands. Pet. App. 3a. Yocum listened to the recording,recognized Bartnicki's and Kane's voices, and heard provocative remarksabout the school board. Ibid.3

Although Yocum has stated that the contents of the recording caused himto become concerned about the safety of school board members, he did notturn the tape over to the police. J.A. 54, 118. Instead, he gave a copyto respondent Frederick Vopper, the host of a local radio talk show, sothat Vopper would "make it public." J.A. 118; see Pet. App. 3a-4a.Yocum also played the tape for several school board members. J.A. 116-117.Respondent Vopper retained the tape for several months, J.A. 76; Pet. App.55a-56a n.6 (Pollak, J., dissenting), but eventually played it on his programrepeatedly, Pet. App. 4a; J.A. 20, 39, 64. The program was broadcast bytwo local radio stations, respondent station WILK and respondent stationWGBI. Pet. App. 4a.

Bartnicki and Kane filed this action in the United States District Courtfor the Middle District of Pennsylvania against Yocum and Vopper, as wellas the respondent radio stations, under Title III, 18 U.S.C. 2520, and aparallel provision of Pennsylvania law, 18 Pa. Cons. Stat. Ann. § 5701et seq. (West 1983). They asserted that respondents had disclosed and usedthe taped conversation, knowing or having reason to know that it had beenintercepted unlawfully, in violation of 18 U.S.C. 2511(1)(c) and (d), andin violation of the corresponding provisions of Pennsylvania law, 18 Pa.Cons. Stat. Ann. § 5725 (West 1983 & Supp. 1999). See J.A. 12,15, 17. Bartnicki and Kane seek statutory and punitive damages.4

Respondents sought summary judgment, arguing that application of TitleIII and the Pennsylvania statute to their actions would violate the FirstAmendment. They asserted that, where a private conversation involving mattersof public significance is illegally intercepted and recorded through anelectronic eavesdropping device, third parties have a constitutional rightto disclose the contents of the conversation so long as they were not responsiblefor the initial interception. Pet. App. 65a; see also id. at 74a. The districtcourt denied respondents' motion, holding, inter alia, that the applicationof Title III to respondents does not violate the First Amendment. Pet. App.65a-67a, 74a. The district court then certified the First Amendment issuefor interlocutory appeal under 28 U.S.C. 1292(b), Pet. App. 75a-76a, andrespondents filed a petition for interlocutory review, id. at 5a.

3. After the court of appeals heard oral argument, it notified the AttorneyGeneral that the constitutionality of 18 U.S.C. 2511(1)(c) and (d) was atissue; the court invited the United States to present its views. Pet. App.77a-79a; see 28 U.S.C. 2403(a).5 The United States intervened and fileda brief to defend those provisions. Pet. App. 5a.

A divided panel of the court of appeals reversed. Pet. App. 1a-58a. Thecourt framed the issue as "whether the First Amendment precludes impositionof civil damages for the disclosure of portions of a tape recording of anintercepted telephone conversation containing information of public significancewhen the defendants * * * played no direct or indirect role in the interception."Id. at 2a. The court of appeals concluded that 18 U.S.C. 2511(1)(c) and(d), and the corresponding provisions of Pennsylvania law, are "contentneutral" and therefore subject to intermediate rather than strict constitutionalscrutiny. Pet. App. 17a-28a. But it held that Title III does not meet thatstandard of judicial review when applied to "the use or disclosureof illegally intercepted information where there is no allegation that thedefendants participated in or encouraged th[e] interception." Id. at42a.

The court of appeals rejected the government's contention that TitleIII's bar on the use and dissemination of illegally intercepted conversationsis needed to diminish the demand for such materials and thus to decreasethe incentive for illegal interceptions. Pet. App. 33a-36a. "The connectionbetween prohibiting third parties from using or disclosing" such communicationsand "preventing the initial interception," the court of appealsstated, is too "indirect." Id. at 33a. The government's interestin protecting privacy and ensuring public confidence in the integrity ofcommunications, the court of appeals found, "can be reached by enforcementof existing provisions against the responsible parties rather than by imposingdamages on these defendants." Id. at 35a.

The court of appeals also rejected the government's contention that TitleIII's use and disclosure prohibition serves the legitimate interest of protectingindividuals from the further injury that occurs when illegally interceptedcommunications are disclosed to additional parties or otherwise used. SeePet. App. 26a-27a. The court stated that protecting "intimate"facts from public disclosure is not a cognizable interest for purposes ofintermediate scrutiny because, in the court's view, it turns on the communicativeimpact of the information being disclosed. Id. at 27a.

Finally, the court of appeals expressed concern that Section 2511(1)(c)and (d)'s prohibition might chill free expression. Pet. App. 36a. The threatof liability, the court stated, might deter the media from publishing materialthat was not in fact obtained in violation of Title III when the information'sorigin is unclear. Ibid.

Judge Pollak (Senior D.J., sitting by designation) dissented. Pet. App.42a-58a. Judge Pollak agreed that intermediate scrutiny is appropriate,but he "part[ed] company" with the majority on the proper applicationof that standard to Title III. Id. at 47a. He explained that, without theprohibition on disclosure, there would be an incentive to conduct illegalinterceptions and the damage from such violations would be "compounded."Id. at 50a-51a. Judge Pollak concluded that the "First Amendment valueson which [respondents] take their stand are countered by privacy valuessought to be advanced by Congress and the Pennsylvania General Assemblythat are of comparable- indeed kindred-dimension." Id. at 58a.

The United States and the plaintiffs filed petitions for rehearing enbanc. The court denied rehearing en banc by a 6-5 vote. Pet. App. 82a-83a.

SUMMARY OF ARGUMENT

Title III renders it unlawful for any person to use or disclose the contentsof a wire, oral, or electronic communication when the person knows or hasreason to know that the communication was intercepted in violation of federalwiretapping law. The court of appeals held that this restriction on speechviolates the First Amendment as applied to the facts of this case, whichinvolves the illegal interception and tape-recording of a private, cellulartelephone call between union officials followed by the public broadcastof the tape on radio stations. The court of appeals' holding is incorrect.It rests on a misapprehension about the substantial interests that TitleIII serves in protecting privacy, fostering new technologies for communications,and safeguarding uninhibited private communications. And it overstates theincidental effect on speech.

I. Title III is subject to intermediate scrutiny under the First Amendment.Where, as here, a generally applicable law burdens speech not for the purposeof excising ideas or information from public or private debate, but insteadto promote legitimate regulatory aims unrelated to the communicative impactof the regulated activity, the Court applies at most an intermediate levelof scrutiny. Under that approach, a law is valid if it furthers an importantgovernment interest that is unrelated to the suppression of free expression,and if the incidental restriction on speech is no greater than necessaryto promote that interest. See, e.g., Turner Broad. Sys., Inc. v. FCC, 512U.S. 622, 662 (1994); United States v. O'Brien, 391 U.S. 367, 377 (1968).

The restrictions in Title III are properly evaluated under intermediatescrutiny, as the court of appeals held in this case. The critical inquiryis whether the law is designed to "stifle[] speech on account of itsmessage," or instead fulfills regulatory goals independent of the messageof the speech. Turner, 512 U.S. at 641. Here, three central attributes ofTitle III show that its purpose is not to trammel speech because of disagreementwith the message it may convey.

First, Title III is a content-neutral provision. The statute, on itsface, draws no distinctions as to subject matter or viewpoint; it insteadapplies to "the contents of any wire, oral, or electronic communication."18 U.S.C. 2511(1)(c) and (d). The impartiality of those prohibitions revealsa legislative design to protect all private communications against unlawfulintrusions, not to suppress any particular type of speech. As such, therestrictions are "justified without reference to the content of theregulated speech," Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989),and turn only on the illegal source of the communications at issue. SeeSeattle Times Co. v. Rhinehart, 467 U.S. 20, 30-34 (1984) (applying intermediatescrutiny to a law that restricted speech based on the source, rather thanthe subject matter, of the information at issue).

Second, Title III is generally applicable to all uses of illegally interceptedcommunications, including non-expressive uses, where the individual hasthe requisite degree of knowledge of the illegal source. Title III prohibitsuses of illegally intercepted communications in competing with a businessrival or in trading in securities; it bars use of such communications inan extortionate scheme; and it has been construed to bar uses of illegallyintercepted communications in criminal and regulatory investigations. Thecombined prohibition against all "uses" in Section 2511(1)(d)and all "disclos[ures]" in Section 2511(1)(c) reinforces the conclusionthat Congress's intention was not to suppress speech, but to avoid the harmsto privacy, free expression, and technological innovation that flow fromexploitation of illegal surveillance of communications. The general applicabilityof a law is a feature that makes strict scrutiny inappropriate. See Cohenv. Cowles Media Co., 501 U.S. 663, 669-672 (1991); see also Hill v. Colorado,120 S. Ct. 2480, 2497 (2000); Turner, 512 U.S. at 661.

Third, Title III itself furthers the constitutional objective of encouragingfree expression. The willingness of individuals to speak freely in privateis seriously jeopardized by a constant fear of surveillance and public exposureor misuse of such conversations. Much valuable interchange-personal, philosophical,political, or business-takes place only because of the spontaneity and candorthat can occur when a speaker can select and limit the audience to whichhis comments are addressed. That is itself a value protected by the FirstAmendment. See Harper & Row, Publishers, Inc. v. Nation Enters., 471U.S. 539, 559 (1985). Because Title III furthers that purpose, this is acase in which "constitutionally protected interests lie on both sidesof the legal equation," Nixon v. Shrink Mo. Gov't PAC, 120 S. Ct. 897,911 (2000) (concurring opinion), and intermediate scrutiny is appropriate.

There is no basis for applying to Title III the strict scrutiny standardof Florida Star v. B.J.F., 491 U.S. 524 (1989), and the cases on which FloridaStar relies, including Smith v. Daily Mail Publ'g Co., 443 U.S. 97 (1979).Those cases apply only to the publication of information that was "lawfullyobtain[ed]." Florida Star, 491 U.S. at 533. The Court specificallyreserved cases in which "information has been acquired unlawfully bya newspaper or by a source," id. at 535 n.8, and it made clear thatwhen "sensitive information rests in private hands, the governmentmay under some circumstances forbid its nonconsensual acquisition, therebybringing outside of the Daily Mail principle the publication of any informationso acquired," id. at 534. Title III fits within that latter mold. Inaddition, this Court's cases applying strict scrutiny to restraints on thepress dealt with content-based laws forbidding publication of particularfacts; laws that focused on speech itself, rather than all uses of informationbased on its illegal source; and laws often directed at information aboutgovernmental processes or released from a governmental source. Title IIIdiffers from such laws in all of those respects.

II. Evaluated under the intermediate scrutiny standard, Title III isconstitutional. As an initial matter, it furthers two important governmentalinterests that are unrelated to suppression of free speech. First, it protectsagainst the aggravated injury to privacy that occurs when illegally interceptedcommunications are then exploited or publicly disseminated. As the Courthas recognized, the later use "compounds the statutorily proscribedinvasion of * * * privacy," Gelbard v. United States, 408 U.S. 41,52 (1972), and thereby multiplies the chilling effect on private communicationinevitably produced by illegal electronic surveillance and interception.Relatedly, Congress wished to foster development of new technologies, suchas cellular phones, e-mail, and other computer communications, by assuringthe public that those channels will be as secure as the mails. Second, theban on use and disclosure reinforces the underlying ban on illegal interception.Without barring outlets for taking advantage of illegally intercepted communications,the incentive to engage in them would be significant. Detection of illegalelectronic interception is difficult and often unsuccessful. Only by removingthe "market" for illegally intercepted communications could Congresseffectively deter the underlying misconduct. Cf. New York v. Ferber, 458U.S. 747, 759-760 (1982).

Those interests would be substantially less effectively served if TitleIII's prohibitions were limited to particular communications. Such a limitedban would do nothing to prevent the increased damage to privacy intereststhat disclosure of any private communication inflicts. It would thereforeless effectively remove the chill that electronic surveillance places oncommunication, particularly with new technologies. For the same reasons,a ban on illegal interception alone would not be sufficient. Moreover, becauseof the difficulty in detecting illegal surveillance, such a law would enablepersons who carry out illegal interceptions to launder information throughthird parties and thereby reap benefits from the violation. The incentivesto engage in illegal interceptions would thus remain high.

There is no basis for concern that the prohibitions of Title III willchill protected speech even when the source of the information is not anillegal interception. Title III's scienter standard requires that a person"know[] or hav[e] reason to know" that the information was obtainedthrough an illegal interception before the prohibitions on use and disclosureapply. 18 U.S.C. 2511(1)(c) and (d). That standard is satisfied only whenan individual actually knows of the illegality or is aware of the factsthat make the illegal source apparent. It imposes no duty of inquiry ona person to ferret out the provenance of the information. In addition, inother First Amendment contexts, the Court has crafted procedural devices,such as heightened scienter standards, heightened burdens of proof, andde novo appellate review, to avoid unduly chilling protected speech. Tothe extent that such concerns exist here, those legal devices would be equallycapable of dispelling deleterious effects. That result would better balancethe privacy and expression interests in this case than would invalidationof Title III's comprehensive legal protections against the disseminationof information acquired through illegal interceptions.

ARGUMENT

TITLE III'S RESTRICTION ON THE USE AND DISCLOSURE OF ILLEGALLY INTERCEPTEDCOMMUNICATIONS IS CONSISTENT WITH THE FIRST AMENDMENT

At stake in this case are interests of central importance: the interestin privacy and security of wire, oral, and electronic communications, andthe interest in free expression protected by the First Amendment. Reconcilingthose interests requires close examination of the values at issue and theeffects of the regulation; no mechanical formulation can substitute forsuch an inquiry. As this Court recognized in Florida Star v. B.J.F., 491U.S. 524, 533 (1989), "the sensitivity and significance of the interestspresented in clashes between First Amendment and privacy rights counselrelying on limited principles that sweep no more broadly than the appropriatecontext of the * * * case."

Title III "protect[s] the privacy of individual thought and expression,"United States v. United States District Court, 407 U.S. 297, 302 (1972),by safeguarding the ability of individuals to communicate without fear ofinterception, use, and disclosure of their private communications. In affordingsuch protection, Title III builds on the traditional respect in our societyfor the privacy of personal communications. The statute also reflects thebasic principle that those who knowingly come into possession of stolengoods are not free to exploit them. While attaining Title III's purposescan result in the restriction of speech in particular cases, this Courthas "pointedly refused" to hold that the publication of truthfulinformation may never "be subjected to civil or criminal liabilityfor invading an area of privacy defined by the State." Florida Star,491 U.S. at 533 (internal quotation marks omitted). Here, liability is imposed,not because of the government's disagreement with the message, or becausethe government seeks to suppress public knowledge of particular subjectmatters, but because of the illegality of the source of the information,i.e., an illegally intercepted private communication. Indeed, enforcementof Title III is necessary to assure citizens that they may communicate privatelywithout fear of unwanted and illegal dissemination of their speech. Fosteringsuch speech is itself a First Amendment value.

I. The Application of Title III To Disclosure Of Illegally InterceptedCommunications By Persons Other Than The Wiretapper Is Subject To IntermediateScrutiny

"[B]ecause not every interference with speech triggers the samedegree of scrutiny under the First Amendment," this Court "mustdecide at the outset the [appropriate] level of scrutiny." Turner Broad.Sys., Inc. v. FCC, 512 U.S. 622, 637 (1994). Title III's use and disclosureprohibition is a content-neutral provision of general applicability; itneither singles out a particular category of speech by subject nor singlesout speech itself. Accordingly, it is properly analyzed under this Court'sintermediate scrutiny standard.6

A. Intermediate Scrutiny Is Appropriate Where The Statute Neither RegulatesSpeech Because Of Its Message Nor Singles Out Speech For Differential Treatment

In order to prevent the government from suppressing unpopular ideas ordisfavored views, this Court has consistently subjected to strict scrutinylaws that attempt to "stifle[] speech on account of its message."See, e.g., United States v. Playboy Entertainment Group, Inc., 120 S. Ct.1878, 1880 (2000); Reno v. ACLU, 521 U.S. 844 (1997); Sable Communicationsof Cal., Inc. v. FCC, 492 U.S. 115, 126 (1989). Under that rigorous test,content-based statutes are generally unconstitutional unless they are "narrowlytailored to promote a compelling Government interest." Playboy, 120S. Ct. at 1886.

In contrast, laws that regulate speech or other expressive activitiesfor purposes and in a manner unrelated to the message or its communicativeimpact are subject to intermediate scrutiny. That is because, "in mostcases," such laws "pose a less substantial risk of excising certainideas or viewpoints from the public dialogue." Turner, 512 U.S. at642. Under intermediate scrutiny, a statute is consistent with the FirstAmendment "if it furthers an important or substantial governmentalinterest; if the governmental interest is unrelated to the suppression offree expression; and if the incidental restriction on alleged First Amendmentfreedoms is no greater than is essential to the furtherance of that interest."Id. at 662 (quoting United States v. O'Brien, 391 U.S. 367, 377 (1968)).

The intermediate scrutiny standard originated in O'Brien, where the Courtupheld a law prohibiting the destruction of draft cards against a FirstAmendment challenge. O'Brien had argued that the burning of his draft cardwas a form of protected political expression, a protest against the VietnamWar. See 391 U.S. at 376-386. Applying intermediate scrutiny, the Courtrejected his First Amendment claim, holding that the statute furthered importantgovernmental interests unrelated to the suppression of expression and wasnot unnecessarily broad. Id. at 376-382. The Court assumed that "thealleged communicative element in O'Brien's conduct is sufficient to bringinto play the First Amendment," id. at 376, but held that intermediatescrutiny was nevertheless appropriate because "the law punished himfor the 'noncommunicative impact of his conduct, and for nothing else.'"City of Erie v. Pap's A.M., 120 S. Ct. 1382, 1392 (2000) (plurality opinion)(quoting O'Brien, 391 U.S. at 382).

O'Brien involved a law aimed at conduct that, in particular cases, hada incidental impact on "symbolic speech" or "expressive conduct,"i.e., conduct that ordinarily is undertaken for non-expressive purposes,but that may be performed in particular cases to convey a message. See,e.g., City of Erie, 120 S. Ct. at 1391, 1395 (plurality opinion); Clarkv. Community for Creative Non-Violence, 468 U.S. 288, 294 (1984). Sincedeciding O'Brien, the Court has extended that intermediate scrutiny standardto particular First Amendment settings that involve the regulation of "purespeech." See, e.g., Procunier v. Martinez, 416 U.S. 396, 410-414 (1974).Most notably, O'Brien provides the standards that govern the constitutionalityof "content-neutral" speech regulations. See, e.g., Turner, 512U.S. at 641-652, 662; San Francisco Arts & Athletics, Inc. v. UnitedStates Olympic Comm., 483 U.S. 522, 536-537 (1987). And the O'Brien factorscorrespond to the Court's test for laws that regulate "the time, place,or manner of protected speech." Ward v. Rock Against Racism, 491 U.S.781, 791 (1989); see Hill v. Colorado, 120 S. Ct. 2480, 2491 (2000).

What unites expressive conduct cases like O'Brien, "content-neutralspeech regulation" cases like Turner, and "time, place, and manner"cases like Ward, is that, in each instance, the law is not hostile to aparticular message and does not seek to curtail the communicative impactof the expression. Instead, the justification for the law lies in the "noncommunicativeimpact" of the regulated activity. O'Brien, 391 U.S. at 382. To theextent that such laws burden the exchange of ideas and information, theburden is incidental to the government's pursuit of "a legitimate regulatorygoal" unrelated to the suppression of speech or the content of thespeaker's message. Turner, 512 U.S. at 641. Such laws, as this Court explainedin Turner, "do not pose such inherent dangers to free expression, orpresent such potential for censorship or manipulation, as to justify applicationof the most exacting level of First Amendment scrutiny." Id. at 661.

When deciding whether a law that regulates expression is subject to strictor intermediate scrutiny, the relevant inquiry is whether the law is designedto "stifle[] speech on account of its message," or, alternatively,reflects the legislature's pursuit of legitimate governmental goals thatare unrelated to the message being conveyed. Turner, 512 U.S. at 641; Cityof Erie, 120 S. Ct. at 1391 (plurality opinion) ("If the governmentalpurpose in enacting the regulation is unrelated to the suppression of expression,then the regulation need only satisfy the 'less stringent' standard fromO'Brien," but "[i]f the government interest is related to thecontent of the expression, * * * then the regulation falls outside the scopeof the O'Brien test."). The fact that a law is not aimed at the communicativeimpact of expression does not necessarily mean that the law presents noFirst Amendment concerns. But laws that are justified without referenceto the message, content, or viewpoint of speech "pose a less substantialrisk of excising certain ideas or viewpoints from the public dialogue,"Turner, 512 U.S. at 642, and are appropriately held to the less-demandingstandard of intermediate scrutiny.

B. Title III Is Subject To Intermediate Scrutiny Because It Is ContentNeutral And Has General Applicability

Title III is not directed at suppressing the dissemination of disfavoredideas or information. Indeed, Title III does not single out speech fromother activities as a subject for regulation. Instead, it prohibits alluses of illegally intercepted communications, whether or not the use iscommunicative in nature. And where Title III prohibits disclosure, it doesso in a content-neutral fashion. Title III thereby furthers legitimate andsubstantial interests in ensuring the integrity of vital means of privatecommunication and in promoting free expression through those channels. Assuch, it is "justified without reference to the content of the regulatedspeech," Ward, 491 U.S. at 791 (emphasis omitted), and is subject tointermediate scrutiny.

1. Title III is inherently content neutral. "[T]he principal inquiryin determining content neutrality * * * is whether the government has adopteda regulation of speech because of [agreement or] disagreement with the messageit conveys." Turner, 512 U.S. at 642 (internal quotation marks omitted).The "purpose, or justification" of the law is thus the touchstonein ascertaining content neutrality. Ibid. "Government regulation ofexpressive activity is content neutral so long as it is justified withoutreference to the content of the regulated speech." Ward, 491 U.S. at791 (emphasis in original; internal quotation marks omitted).7

Neither Title III's text nor its history suggests a purpose of singlingout a particular message, speaker, subject, or viewpoint for disfavoredtreatment. Contrast Playboy, 120 S. Ct. at 1885 (statute that singled outparticular content and particular speakers). To the contrary, Title IIIapplies to illegal interception of "any wire, oral, or electronic communication."The statute applies without regard to the content, subject matter, or participantsin the communication. Title III thus does not reflect an effort by Congressto "suppress, disadvantage, or impose differential burdens upon speechbecause of its content," Turner, 512 U.S. at 642. Instead, Title III'srestrictions reflect an impartial legislative judgment that individualsshould be able to engage in telephone conversations and other forms of confidentialcommunication without fear that their conversations will be used by thirdparties without consent. The restrictions are thus "justified withoutreference to the content of the regulated speech." Ward, 491 U.S. at791.

Title III thus does not seek to insulate particular facts or subjectsfrom public scrutiny. Contrast Cox Broad. Corp. v. Cohn, 420 U.S. 469, 489(1975) (tort of publication of private facts). Nor does liability underTitle III depend on the communicative impact of the use to which the interceptedcommunication is put. See ibid. Instead, liability depends solely on themeans by which a communication is obtained- i.e., whether or not the communicationwas obtained through illegal electronic surveillance. As the D.C. Circuithas explained, Title III "identifies matters" that the statutecovers "by reference not to their content, but instead to the processby which they are collected." Lam Lek Chong v. United States Drug EnforcementAdmin., 929 F.2d 729, 733 (D.C. Cir. 1991). Consequently, an individualwho obtains the identical content from a lawful source is free under TitleIII to disseminate or make any use of it he chooses.

This Court has previously applied intermediate scrutiny to a restrictionon speech that was based on the source of the information, while leavingunrestricted the dissemination of the same facts if acquired by an independentlawful means. In Seattle Times Co. v. Rhinehart, 467 U.S. 20, 30-34 (1984),a media defendant was placed under a protective order in a civil actionthat prohibited it from disclosing discovery information obtained from theplaintiffs. The defendant claimed that the protective order was subjectto strict scrutiny, but this Court disagreed. Id. at 32. The Court explainedthat "such a protective order prevents a party from disseminating onlythat information obtained through use of the discovery process" whileleaving the party free to "disseminate the identical information coveredby the protective order as long as the information is gained through meansindependent of the court's processes." Id. at 34. Thus, the protectiveorder "implicates the First Amendment rights of the restricted partyto a far lesser extent than would restraints on dissemination of informationin a different context." Ibid.

Because liability under Section 2511(1)(c) and (d) is tied to a particularmeans of acquisition (illegal electronic surveillance), rather than to aparticular category of information, and because liability is not contingenton the communicative impact of disclosure, Title III's object is not toexclude a category of information from the public domain or otherwise inhibitfree debate. It may be that Title III's restrictions will occasionally preventthe news media or other persons from providing specific information to thepublic in particular instances. But so too does Title III's underlying prohibitionon wiretapping. See Branzburg v. Hayes, 408 U.S. 665, 691 (1972) ("Althoughstealing documents or private wiretapping could provide newsworthy information,neither reporter nor source is immune [under the First Amendment] from convictionfor such conduct, whatever the impact on the flow of news."). The factthat some information may not be lawfully revealed under Title III becauseit was acquired in an illegal interception does not make the statute subjectto strict scrutiny for regulations "that stifle[] speech on accountof its message," Turner, 512 U.S. at 641; rather, that incidental effecton speech must be judged under the intermediate scrutiny of the O'Brientest.

2. Title III should also be subjected to intermediate scrutiny becauseit imposes a general prohibition on the use of illegally intercepted communications,and does not apply only to communicative activities. The statutory prohibitionson disclosure and use, 18 U.S.C. 2511(1)(c) and (d), together reflect asingle congressional aim to bar all exploitation of illegally interceptedcommunications when the recipient knows or has reason to know of the illegalsource. Consequently, it is unlawful for a company to use an illegally interceptedcommunication about a business rival in order to create a competing product;it is unlawful for an investor to use illegally intercepted communicationsin trading in securities; it is unlawful for a union to use an illegallyintercepted communication about management (or vice versa) to prepare strategyfor contract negotiations; it is unlawful for a supervisor to use informationin an illegally recorded conversation to discipline a subordinate; and itis unlawful for a blackmailer to use an illegally intercepted communicationfor purposes of extortion. See, e.g., 1968 Senate Report 67 (corporate andlabor-management uses); Fultz v. Gilliam, 942 F.2d 396, 400 n.4 (6th Cir.1991) (extortion); Dorris v. Absher, 959 F. Supp. 813, 815-817 (M.D. Tenn.1997) (workplace discipline), aff'd in part, rev'd in part, 179 F.3d 420(6th Cir. 1999). The statute has also been held to bar the use of illegallyintercepted communications for important and socially valuable purposes.See In re Grand Jury, 111 F.3d 1066, 1077-1079 (3d Cir. 1997) (Sections2511 and 2515 prohibit disclosure of illegally recorded conversation togrand jury, even where such disclosure would be in compliance with subpoena);Berry v. Funk, 146 F.3d 1003, 1011-1013 (D.C. Cir. 1998) (Section 2511 prohibitsknowing investigatory use of unlawfully intercepted communications by InspectorGeneral); Chandler v. United States Army, 125 F.3d 1296, 1298-1302 (9thCir. 1997) (Section 2511 prohibits United States Army from using taped conversationto investigate charge of adultery).

It does not undermine the generality of Title III's prohibition thatCongress addressed disclosure and other uses of illegally intercepted communicationsin separate subsections of 18 U.S.C. 2511. The statutory bar created bySection 2511(1)(c) and (d) is identical in scope and operation to a unitary,undifferentiated prohibition on use. Indeed, the only difference is oneof clarity: by breaking the prohibition into separate provisions, Congressunderscored that the prohibition is not limited to non-communicative uses,but extends to "disclosure" as well. The essential fact is thatCongress has not singled out disclosure from other uses for any specialburden or sanction, but instead has subjected communicative and non-communicativeuses to the same legal restraint. The generality of the prohibition reinforcesthe conclusion that Congress's interest is not in suppression of free expression,but in combating the dangers flowing from illegal interception.

In related contexts, the Court has recognized that the generality ofa law's applicability is a significant factor in evaluating a First Amendmentclaim. For example, in Cohen v. Cowles Media Co., 501 U.S. 663 (1991), anewspaper obtained information from an anonymous source in return for apromise of confidentiality, but proceeded to publish the source's identitynonetheless. The source-who was connected to a political campaign and whohad provided information about his candidate's opponent-sued the newspaperfor damages based on the newspaper's failure to honor its promise of confidentiality.This Court held that the First Amendment did not bar a claim by the sourcefor damages under Minnesota's common law doctrine of promissory estoppel.See id. at 668-672. The Court rested its decision on the principle that"generally applicable laws do not offend the First Amendment simplybecause their enforcement against the press has incidental effects on itsability to gather and report the news." Id. at 669.

Cohen demonstrates that strict scrutiny does not apply to laws of generalapplicability, even when, in particular cases, they attach liability tothe public disclosure of truthful, newsworthy information, such as the identityof the information's source. 501 U.S. at 671-672. As the Court stated inKonigsberg v. State Bar, 366 U.S. 36, 50-51 (1961), "general regulatorystatutes, not intended to control the content of speech but incidentallylimiting its unfettered exercise, have not been regarded as the type oflaw the First or Fourteenth Amendment forbade Congress or the States topass, when they have been found justified by subordinating valid governmentalinterests."8

Cohen, moreover, exemplifies the broader principle that, for First Amendmentpurposes, "the comprehensiveness of [a] statute is a virtue, not avice, because it is evidence against there being a discriminatory governmentalmotive." Hill v. Colorado, 120 S. Ct. at 2497; cf. Turner, 512 U.S.at 661 ("broad based" regulations "do not pose the same dangersof suppression and manipulation that [are] posed by * * * more narrowlytargeted regulations [aimed at particular speakers]"); Cincinnati v.Discovery Network, Inc., 507 U.S. 410, 424-426 (1993). That reasoning isequally applicable here. The fact that Title III's restrictions are notconfined to disclosure, but instead apply with equal force to other uses,confirms that Congress was not animated by hostility toward the disseminationof information generally or a particular category of information. Instead,the legislature was concerned with the "noncommunicative impact,"O'Brien, 391 U.S. at 382, on privacy of allowing any use (expressive ornot) of illegally intercepted communications. Thus, contrary to the courtof appeals' view that Title III's broad scope has no bearing on its constitutionality,Pet. App. 21a-22a, Congress's enactment of a comprehensive ban demonstratesthat it was acting not for prohibited anti-speech purposes, but for thelegitimate end of ensuring the inviolability of vital means of private communication.

3. Finally, the role that Title III's restrictions play in encouragingthe uninhibited exchange of ideas and information among private partiesargues in favor of intermediate rather than strict scrutiny. "[W]hereconstitutionally protected interests lie on both sides of the legal equation[,]

* * * there is no place for a strong presumption against constitutionality,of the sort often thought to accompany the words 'strict scrutiny.'"Nixon v. Shrink Mo. Gov't PAC, 120 S. Ct. 897, 911 (2000) (Breyer, J., concurring).Instead, when a law "implicates competing constitutionally protectedinterests in complex ways," what is called for is a more reflectiveinquiry that considers the statutory balance struck between the respectiveinterests, rather than "a simple test that effectively presumes unconstitutionality."Id. at 912.

Title III "implicates competing constitutionally protected interestsin complex ways." As this Court has recognized:

The essential thrust of the First Amendment is to prohibit improper restraintson the voluntary public expression of ideas; it shields the man who wantsto speak or publish when others wish him to be quiet. There is necessarily,and within suitably defined areas, a concomitant freedom not to speak publicly,one which serves the same ultimate end as freedom of speech in its affirmativeaspect.

Harper & Row, Publishers, Inc. v. Nation Enters., 471 U.S. 539, 559(1985) (quoting Estate of Ernest Hemingway v. Random House, 244 N.E.2d 250,255 (N.Y. 1968)). There can be little doubt that the right that Title IIIcreates-the right of those engaged in conversations through private channelsto control whether the conversation remains private or is instead publishedto the world-serves that "countervailing First Amendment value."Id. at 560. Nor can there be any doubt that it promotes the free and uninhibitedexchanges in private conversation that would be chilled if every communicationwere subject to the threat of publication or use by strangers. Intermediatescrutiny provides the means by which to take account of the "constitutionallyprotected interests * * * on both sides of the legal equation" in thiscase. Nixon, 120 S. Ct. at 911 (Breyer, J., concurring).

C. This Court's Cases Do Not Require The Application Of Strict ScrutinyTo Title III

In a line of cases culminating in Florida Star v. B.J.F., 491 U.S. 524(1989), this Court has applied strict scrutiny to laws restricting publicationof truthful information on matters of public significance. See LandmarkCommunications, Inc. v. Virginia, 435 U.S. 829 (1978); Smith v. Daily MailPubl'g Co., 443 U.S. 97 (1979); Cox Broad. Corp., 420 U.S. at 469. Thosecases, however, were explicitly decided on their precise facts, which differin critical respects from this case.

1. In Florida Star, this Court considered the constitutionality of astate law that prohibited the mass media from publicly disclosing the identityof rape victims. 491 U.S. at 526 & n.1. In that case, a newspaper obtaineda rape victim's identity from the police, who had inadvertently includedit in a publicly available report; the newspaper then published the victim'sname as part of its coverage of the rape. Id. at 526-528. After reviewingLandmark Communications, Cox Broadcasting, and Daily Mail, the Court inFlorida Star applied what has come to be known as the "Daily Mail principle"-thatwhen "'a newspaper lawfully obtains truthful information about a matterof public significance then state officials may not constitutionally punishpublication of the information, absent a need to further a state interestof the highest order.'" 491 U.S. at 533 (quoting Daily Mail, 443 U.S.at 103).

The Daily Mail principle is inapplicable here. Both as originally statedand later explained in Florida Star, it extends only to the publicationof information that has been "lawfully obtained." 491 U.S. at534. Indeed, in Florida Star itself, the information was not illegally obtainedby anyone; the newspaper that published the information acquired it by lawfulmeans, i.e., looking through files the police made publicly available. ThisCourt specifically noted that the case would be different if the informationwere in private hands and legally protected: "[t]o the extent sensitiveinformation rests in private hands, the government may under some circumstancesforbid its nonconsensual acquisition, thereby bringing outside of the DailyMail principle the publication of any information so acquired." Ibid.Because Title III regulates the use of private communications that wereunlawfully intercepted in violation of Title III, its restrictions fall"outside of the Daily Mail principle."

Florida Star also expressly reserved this type of case. The Court specificallynoted that "[t]he Daily Mail principle does not settle the issue whether,in cases where information has been acquired unlawfully by a newspaper orby a source, government may ever punish not only the unlawful acquisition,but the ensuing publication as well." 491 U.S. at 535 n.8 (emphasisadded). The Court's reference to "information [that] has been acquiredunlawfully by * * * a source" applies to cases-like this one-in whichsomeone other than the person who discloses the information acquired itunlawfully. The significance of the language is also illuminated by theCourt's observation in footnote eight that this issue was "raised butnot definitively resolved" in the Pentagon Papers case, New York TimesCo. v. United States, 403 U.S. 713 (1971) (per curiam). In that case, theissue of illegal acquisition of information was presented by the actionsof the source, not by the actions of the newspapers that later sought topublish the information.

2. The differences between Title III and the laws at issue in the FloridaStar line of cases also make apparent the appropriateness of intermediaterather than strict scrutiny. First, neither Florida Star nor its predecessorsinvolved a "general regulatory statute[]" that, like Title III,"incidentally limit[s]" expressive activities in particular cases,Konigsberg, 366 U.S. at 50. To the contrary, in each of those cases, thestatute under review was specifically directed at speech alone. In FloridaStar, the law prohibited publication of the name of a rape victim "inany instrument of mass communication." 491 U.S. at 526. In Daily Mail,the statute barred "publication" of the names of juvenile offenders"in any newspaper." 443 U.S. at 98, 104-105. In Cox Broadcasting,the statute and tort at issue made it unlawful to "print and publish,broadcast, televise, or disseminate" by radio the identity of rapevictims or otherwise to publicize "private" facts. 420 U.S. at471 n.1, 487. And in Landmark Communications, the law made it unlawful to"divulge[]" papers or information about particular proceedings.435 U.S. at 831 n.1. This Court squarely held in Cohen v. Cowles Media Co.,supra, that a generally applicable law that does not single out expressionis not governed by Florida Star, even if the law in a particular case isapplied to a media defendant based on its disclosure of truthful informationabout a matter of public significance. See 501 U.S. at 668-669.

Second, the statutes in Florida Star and its predecessors were manifestlycontent based rather than content neutral. In each case, the statute specificallyidentified a particular fact to be suppressed or regulated speech pertainingto a particular subject matter. In Florida Star, the statute prohibiteddissemination of the identity of rape victims, 491 U.S. at 526, and wasdefended by the State's interest in keeping the identity of such victimsa secret, id. at 537. The laws at issue in Florida Star's predecessors werelikewise subject and content specific. See Daily Mail, 443 U.S. at 98 (statuteprohibiting publication of name of juvenile offender to protect identity);Cox Broad., 420 U.S. at 471 n.1, 487 (statute prohibiting publication ofname of rape victim, and common-law tort prohibiting disclosure of "privateinformation," both invoked to protect victim's identity); LandmarkCommunications, 435 U.S. at 831 n.1, 835-836 (bar on divulgence of testimony,evidence, and papers in judicial discipline proceedings in order to protectjudge's reputation). In contrast to Title III, none of those statutes barreddisclosure and all other uses of information, not based on its content,but based on the means by which the information was acquired.9

Finally, Florida Star turned to some degree on the fact that the informationat issue was released by the government itself. Although the Court in DailyMail made clear that its analysis did not depend on whether informationcame from a governmental source, 443 U.S. at 103 (newspaper is entitledto publish information based on usual methods of newsgathering), "[w]hereinformation is entrusted to the government, a less drastic means than punishingtruthful publication almost always exists for guarding against the disseminationof private facts." Florida Star, 491 U.S. at 534. In contrast, wheninformation is in private hands-and where (as here) the government has madethe initial acquisition of the information a crime-the force of that reasoningis greatly diminished. The Court in Florida Star also expressed concernthat "timidity and self-censorship" might result if the news mediawere subject to sanctions for publishing information "released, withoutqualification, by the government," because the press would then haveto "sift[] through government press releases, reports, and pronouncementsto prune out material arguably unlawful for publication." Id. at 535-536.That concern has no bearing where, as here, the information was obtainedfrom a private source under circumstances that indicate that the sourceobtained the information unlawfully, eliminating any "implied representationsof the lawfulness of dissemination," id. at 536, from the governmentor anyone else.

In sum, Florida Star and its predecessors differ in basic ways from thecase now before this Court. Those cases involved laws that singled out speechfor different, and disfavored treatment, compared to non-speech uses ofthe same information; restricted speech on the basis of its content; soughtto foreclose public knowledge of specific information altogether; penalizedthe disclosure of information even when its initial acquisition was lawful;and sanctioned the press for publishing information provided by the governmentitself or, in many cases, that was related to the activities of the governmentitself. Because Title III's restrictions differ from those laws in everyone of those respects, subjecting its provisions to strict scrutiny underFlorida Star and its predecessors would contravene this Court's directionthat conflicts between free speech and privacy values must be resolved onthe basis of "limited principles that sweep no more broadly than theappropriate context of the * * * case." 491 U.S. at 533.

II. Title III's Restrictions Satisfy Intermediate Scrutiny

A law that is subject to intermediate scrutiny under the First Amendmentmust meet three basic requirements. First, it must "further[] an importantor substantial governmental interest." O'Brien, 391 U.S. at 377. Second,the governmental interest must be "unrelated to the suppression offree expression." Ibid. Third, "the incidental restriction onalleged First Amendment freedoms [must be] no greater than is essentialto the furtherance of that interest." Ibid. Title III's prohibitionsmeet each of those requirements.

A. The Restriction On Use And Disclosure Furthers Significant InterestsUnrelated To The Suppression of Expression

The fundamental purpose of Title III is to ensure that the public mayuse vital means of private wire, electronic, and oral communication withoutfear that private communications will be intercepted or used without theirpermission or consent. See pp. 2-5, supra. Title III thus places the forceof law behind the security of the nation's widely used channels of privatecommunication, including telephones, cellular phones, faxes, and e-mail.In so doing, Title III supports every person's reasonable expectation ofprivacy in his personal telephone conversations. See Katz v. United States,389 U.S. 347, 352 (1967). See also Harper & Row, 471 U.S. at 557-558(noting the First Amendment right of each individual to determine whetheror not he will speak publicly).

The use and disclosure prohibitions serve two essential purposes in TitleIII's protective scheme. First, by guaranteeing to individuals the rightto speak freely without having their private conversations exposed to "theuninvited ear" of strangers, Katz, 389 U.S. at 352, Title III encouragesexchanges of information and ideas. Relatedly, Title III promotes the developmentand use of new technological methods of communication, a goal that alsoserves First Amendment values. Second, Title III's use and disclosure prohibitionsreinforce the underlying restriction on illegal interceptions; without thatrestraint, a person could accede to the temptation to engage in surreptitioussurveillance with knowledge that the fruits could be disclosed through orotherwise used by third parties.

1. As this Court has recognized, the injury to privacy that flows fromunlawful interceptions does not end with the interception itself. To thecontrary, as the Court stated in upholding a grand jury witness's rightnot to answer questions based on an illegal interception of his communications,the disclosure following the initial intrusion "compounds the statutorilyproscribed invasion of * * * privacy." Gelbard v. United States, 408U.S. 41, 52 (1972). By prohibiting the use and disclosure of illegally interceptedcommunications, Title III directly guards against that further intrusioninto the integrity of private communications. And, in so doing, it advancesthe First Amendment value in the choice not to speak publicly. See Harper& Row, 471 U.S. at 559; Wooley v. Maynard, 430 U.S. 705, 714 (1977).

Because disclosure and other uses of illegally intercepted communicationsmultiply the injury that results from interception, they also multiply thedegree to which such intrusions inhibit the free exchange of thoughts andideas. If individuals lack assurance that the law will protect the confidentialityof their conversations, their willingness to speak candidly will necessarilysuffer. See United States v. Nixon, 418 U.S. 683, 705 (1974) ("Humanexperience teaches that those who expect public dissemination of their remarksmay well temper candor with a concern for appearances and for their owninterests."); Swidler & Berlin v. United States, 524 U.S. 399,407 (1998) ("fear of disclosure," even after death, would likelylead to a client's "withholding of information from counsel");Jaffee v. Redmond, 518 U.S. 1, 10 (1996) (lack of assurance of confidentialitywould impede psychotherapy). Indeed, the profound chilling effect createdby the possibility of unauthorized publication has been recognized by thecommon law from this nation's earliest days. As Justice Story explainedin the context of private letters more than 150 years ago, publication ofsuch communications "strikes at the root of all that free and mutualinterchange of advice, opinions, and sentiments, between relatives and friends,and correspondents, which is so essential to the well-being of society,"by "compel[ing] every one in self defence to write, even to his dearestfriends, with the cold and formal severity, with which he would write tohis wariest opponents, or most implacable enemies." 2 J. Story, Commentarieson Equity Jurisprudence 220-221 (1836 ed., reprinted 1972).10 Title III'suse and disclosure prohibition is thus crucial to ensuring that the threatof technological incursion into private communications does not erode individuals'willingness and ability to exchange frank and candid views.

In 1986, Congress expanded Title III's protection against illegal surveillanceto reach electronic communications. Electronic Communications Privacy Actof 1986 (ECPA), Pub. L. No. 99-508, 100 Stat. 1848. Again, Congress recognizedthe damage to candid expression that would result from an unimpeded abilityto disclose illegally intercepted private communications. Congress notedthat the "tremendous advances in telecommunications and computer technologieshave carried with them comparable technological advances in surveillancedevices and techniques," with the result that private communicationsand electronically stored private data "may be open to possible wrongfuluse and public disclosure by * * * unauthorized private parties." S.Rep. No. 541, 99th Cong., 2d Sess. 3 (1986) (emphasis added). Cellular telephonesexemplify the type of communications technology that would be substantiallyless attractive to users if interception and dissemination of their callswere lawful. Congress proposed to protect such new forms of computer andtelecommunications interchange that "American citizens and Americanbusinesses are using * * * in lieu of, or side-by-side with, first classmail and common carrier telephone services." Id. at 5.11

Title III thus advances a significant purpose in protecting the modernequivalents of letters, such as phone calls, e-mails, and faxes. And becauseelectronic intrusions into modern communications-unlike intrusions intoletters-can be accomplished without the physical access that ordinarilypermits prevention and detection, the need for legal protection againstunauthorized disclosure in this context is even greater. Attesting to theimportance of that interest, more than three dozen States and the Districtof Columbia have enacted legislation proscribing the unauthorized use anddisclosure of illegally intercepted communications. See Boehner v. McDermott,191 F.3d 463, 468 n.6 (D.C. Cir. 1999), petition for cert. pending, No.99-1709.

2. Prohibiting the use and disclosure of illegally intercepted communicationsalso reinforces the underlying prohibition on illegal surveillance itself.In particular, by barring the knowing use and disclosure of illegally interceptedcommunications, Title III's prohibitions reduce demand for such communicationsand deprive potential wiretappers of the fruits of their labors. Boehner,191 F.3d at 469-470; see Fultz v. Gilliam, 942 F.2d 396, 401 (6th Cir. 1991).

The need to prohibit such uses is particularly important because illegalinterception is by nature a clandestine enterprise. See President's Commissionon Law Enforcement and Administration of Justice, The Challenge of Crimein a Free Society 202 (1967) ("Detection of surveillance devices isdifficult."); 1968 Senate Report 69 (because of surreptitious natureof activity, fact or source of such an invasion "[a]ll too often ** * will go unknown"); id. at 96 ("[U]nlawful electronic surveillanceis typically a clandestine crime."); ECPA Hearings 54-55 (noting theincreasing difficulty of detecting surveillance).12 If untrammeled disclosureby non-participants were lawful, illegally intercepted communications couldbe easily "laundered" to prevent discovery of the interceptor.See Boehner, 191 F.3d at 471 (invalidation of use or disclosure prohibitionwould effectively "render[] the government powerless to prevent disclosureof private information, because criminals"-who may bug residences,intercept phone calls, or engage in other forms of unlawful electronic surveillance-"canliterally launder illegally intercepted information") (internal quotationmarks omitted). All an individual has to do is covertly carry on an interception-anactivity that can be conducted from the privacy of the home -and anonymouslyprovide a tape of it to a person known to have an interest in disclosingit. If the ban on illegal interceptions could be evaded that easily, therewould be a large incentive to carry out illegal interceptions in order tomake use of them through third parties.

3. The court of appeals did not dispute the legitimacy of the above interests.But it declared the first interest (in privacy and promoting free expression)to be non-cognizable under intermediate scrutiny, and the latter (deterrence)too conjectural to sustain the statute. Both of those conclusions are incorrect.

a. The court of appeals rejected the government's interest in preservingprivacy and the right not to speak publicly as "content-based"and therefore not cognizable for purposes of intermediate scrutiny. Pet.App. 26a-27a. In so concluding, the court of appeals erroneously assumedthat Title III's restrictions are designed to protect individuals from theharms associated with the disclosure of "intimate facts concerningone's life." Id. at 26a. But the spectrum of communications that TitleIII covers is unlimited in subject matter or nature; it encompasses business,social, personal, and familial interchange, and protects serious debateas well as idle conversation. Title III's restrictions thus do not seekto protect against the injury that occurs when particularly personal facts,or identified pieces of information, are disclosed. Instead, Title III protectsagainst the magnified harm that results when any illegally intercepted conversationis disseminated to a wider audience. Just as having additional eavesdroppersrather than a single eavesdropper listening in on a conversation multipliesthe intrusion into privacy regardless of content, so too multiplying thenumber of individuals to whom the conversation is disclosed after the factincreases the harm, whether or not intimate facts are involved. The interestsin preventing that increased injury and in reassuring individuals that theycan communicate freely and candidly in private are independent of the contentof any communications that could be disclosed absent the prohibition.

It is plain that this interest is directly advanced by Title III's prohibitionon disclosure and other uses of illegally intercepted information. TitleIII does not impose restrictions on some speakers while leaving others whohave the same knowledge from the illegal source free to disseminate thecommunication. Such selectivity in speakers undermined the degree to whichthe laws involved in Florida Star and Daily Mail advanced their stated purposes.But Title III does not single out media of mass communication, Florida Star,491 U.S. at 526 n.1, 540, or newspapers, Smith v. Daily Mail, 443 U.S. at98, 104; it applies evenhandedly to all speakers. Congress thereby crafteda law that does all it can reasonably do to advance its underlying purposeof protecting the privacy of wire, oral, and electronic communications.

b. The court of appeals likewise erred in dismissing the deterrent functionof the Title III prohibition. See Pet. App. 32a-34a. In particular, thecourt expressed skepticism that reducing the opportunities to disclose illegallyintercepted communications would reduce the frequency of unlawful interceptions,dismissing the link between them as "ipse dixit" that rests on"nothing more than assertion and conjecture." Id. at 33a-34a.But that very logic has long been accepted as a justification for statutesthat prohibit the knowing receipt and sale of stolen property. See, e.g.,United States v. Gardner, 516 F.2d 334, 349 (7th Cir.), cert. denied, 423U.S. 861 (1975); United States v. Bolin, 423 F.2d 834, 838 (9th Cir.), cert.denied, 398 U.S. 954 (1970). By denying the thief an outlet for distributionof the stolen goods, the law deters the underlying act of theft. See 2 W.R. LaFave & A. W. Scott, Jr., Substantive Criminal Law § 8.10(a),at 422 (1986) ("Without such receivers, theft ceases to be profitable.It is obvious that the receiver must be a principal target of any societyanxious to stamp out theft in its various forms."). This Court reliedon a similar rationale in New York v. Ferber, 458 U.S. 747, 759-760 (1982),when it held that "[t]he most expeditious if not the only practicalmethod" of effectuating a ban on the production of child pornography"may be to dry up the market for this material" by imposing sanctionson advertising and distribution. And the Court relied on the same rationaleagain to sustain a prohibition on the possession of child pornography inOsborne v. Ohio, 495 U.S. 103, 109-110 (1990), finding it "surely reasonablefor the State to conclude that it will decrease the production of childpornography if it penalizes those who possess and view the product, therebydecreasing demand."13

The court of appeals suggested that the government was obligated to "prove"the deterrent effect of the use restrictions on illegal surveillance. Pet.App. 34a. In light of the history of statutory prohibitions on fencing stolenproperty, and the holdings of cases such as Ferber, no such evidentiaryshowing is required. The well-recognized connection between the existenceof outlets for illegally acquired goods and the incentive to engage in theillegal acquisition of those goods provides proof enough of the propositionthat more surveillance will take place if eavesdroppers enjoy unrestricteddemand for the fruits of their illegal labors. Cf. Nixon v. Shrink Mo. Gov'tPAC, 120 S. Ct. at 906 ("The quantum of empirical evidence needed tosatisfy heightened judicial scrutiny of legislative judgments will varyup or down with the novelty and plausibility of the justification raised.").Insistence on rigid empirical proof of a deterrent connection in this contextcould prevent Congress from regulating at all. "[A]s a practical matterit is never easy to prove a negative [and] it is hardly likely that conclusivefactual data could ever be assembled." Elkins v. United States, 364U.S. 206, 218 (1960) (discussing exclusionary rule).14

B. The Restrictions On Use And Disclosure Do Not Unnecessarily RestrictExpressive Activities

The burden that Title III's restrictions place on expressive activityis "no greater than is essential to the furtherance of th[e] interest[s],"O'Brien, 391 U.S. at 377, underlying Title III. "To satisfy this standard,a regulation need not be the least speech-restrictive means of advancingthe Government's interests." Turner, 512 U.S. at 662. Instead, "therequirement of narrow tailoring is satisfied so long as the * * * regulationpromotes a substantial government interest that would be achieved less effectivelyabsent the regulation." Ibid. (internal quotation marks omitted). Aregulation is considered to be narrowly tailored, for these purposes, aslong as "the means chosen do not burden substantially more speech thanis necessary to further the government's legitimate interests." Ibid.(internal quotation marks omitted).

1. The government's legitimate interest in preserving the confidentialnature of all private wire, oral, and electronic communications, regardlessof their subject matter, would be less effectively met, if met at all, inthe absence of Title III's comprehensive use and disclosure prohibition.Persons engaged in telephone conversations reasonably expect and wish theircommunications to remain confidential. Katz, 389 U.S. at 352. That reasonableexpectation of privacy would be severely jeopardized by the multiplicationof the intrusion accomplished by disclosure and other uses. While the knowledge(or suspicion) that a conversation could be illegally intercepted woulddeter private communications, it is far more chilling of speech for a personto know that his private expressions may later be reported with impunityto the world at large.

It would not be reasonable to require the government to confine the protectionsof Section 2511(1)(c) and (d) to disclosure or other uses of "sensitive"or "private" information. See Vopper Br. in Opp. 12 n.7. Sucha rule in itself would create a content-based distinction. Moreover, itwould be ineffective to reassure speakers that conversations of any sortwould remain confidential, as intended. That uncertainty would dampen thedevelopment and use of new technological media for communication. And ifonly some private speech were protected, speakers would be unsure, at thetime of a communication, what subjects would be covered as sufficientlysensitive or private, thus chilling communication as whole. As a result,the interests underlying Title III "would be achieved less effectivelyabsent the regulation," Turner, 512 U.S. at 662.

2. Congress's interests could not be as effectively achieved by relyingexclusively on Title III's underlying prohibition on unauthorized electronicsurveillance (18 U.S.C. 2511(1)(a)). As noted above, the use of interceptedcommunications causes additional harm to privacy interests beyond that createdby interception alone. See Gelbard, 408 U.S. at 52 (disclosure "compoundsthe statutorily proscribed invasion of * * * privacy"). Without TitleIII's prohibition on use and disclosure, the government would be powerlessto counteract the chilling effect that exploitation of unlawfully interceptedcommunications has on the public's confidence in the security of privatemeans of communication.

Deterrence of illegal interceptions would also be markedly less effectiveif Title III's prohibition reached only the ban on interceptions. Electronicsurveillance is, by its very nature, a surreptitious enterprise, and ifillegally intercepted communications could be "laundered" throughnon-participants, the illegal wiretapper could often achieve his goals whileescaping punishment. Boehner, 191 F.3d at 471. Indeed, this case graphicallyillustrates the fact that a person who illegally intercepts a conversationand wishes to make it public can do so, without any risk to himself, byturning it over anonymously to third parties who have an interest in disclosingits contents. Given the ease with which the identity of the interceptingparty can be concealed, Title III would lose much of its force if the onlymeans of preventing invasions into the sanctity of private communicationswere prosecution of the illegal interceptor himself.

Finally, as noted above, Title III's prohibitions extend no further thannecessary to achieve its goals. Title III does not impose any restrictionon the use or disclosure of information obtained by means other than illegalsurveillance. And Title III was not intended to prohibit anyone from disseminatingthat which is already common knowledge. See 1968 Senate Report 93 ("[t]hedisclosure of the contents of an intercepted communication that had alreadybecome 'public information' or 'common knowledge' would not be prohibited"by Section 2511(1)(c) and (d)). Title III is thus crafted to take accountof the fact that the interests underlying its prohibition "fade onceinformation already appears on the public record." Florida Star, 491U.S. at 532 n.7. In sum, Title III's restrictions on the use and disclosureof illegally intercepted communications are an appropriately tailored meansof protecting privacy and speech interests without impinging unnecessarilyon the free flow of information and ideas.

C. Title III's Restrictions On Use And Disclosure Do Not ImpermissiblyChill Protected Speech

The court of appeals expressed concern that the threat of liability underTitle III for the use or disclosure of illegally intercepted communicationswould deter the news media from disseminating information that is not theproduct of illegal electronic surveillance. Pet. App. 36a. In particular,the court of appeals expressed concern that "[r]eporters often willnot know the precise origins of information they receive from witnessesand other sources." Ibid.

That concern is unfounded. If reporters in fact do not know the originsof their information, they cannot be held liable under Title III; the prohibitionsin Section 2511(1)(c) and (d) are violated only when a defendant "know[s]or ha[s] reason to know" that the communication was intercepted inviolation of Title III. That scienter requirement is demanding. Becausethe "reason to know" standard-unlike the phrase "should know"-"impliesno duty" to investigate or to discover additional facts, Restatement(Second) of Torts § 12 cmt. a (1965), there can be no liability forsimple failure to discover the unlawful origins of a communication, no matterhow negligent. See Novicki v. Cook, 946 F.2d 938, 941 (D.C. Cir. 1991) (reason-to-knowstandard "imposes no duty of inquiry; it merely requires that a persondraw reasonable inferences from information already known to him").Instead, liability may attach only if the defendant has actual "knowledgeof facts from which a reasonable man of ordinary intelligence or one ofthe superior intelligence of the actor would either infer" that thefact in question exists "or would regard its existence as so highlyprobable that his conduct would be predicated upon the assumption that thefact did exist." Restatement (Second) of Torts § 12 cmt. a (emphasisadded). That means that, unless a person actually possesses informationfrom which he or a reasonable person would infer that the communicationwas unlawfully intercepted, liability cannot attach.

That scienter requirement dispels any legitimate concern regarding thechilling effect of the challenged provisions. To the extent any residualconcerns remain, moreover, those concerns could be addressed by proceduralmeasures that stop short of invalidating the provisions themselves. SeePet. App. 56a-57a (Pollak, D.J., dissenting). For example, when a claimis brought under Title III based on the disclosure of information aboutmatters of public significance by persons who were not involved in the illegalinterception, Title III's "reason to know" standard could be supplementedby requiring proof that the defendant acted with reckless disregard of factsindicating the information's illegal origins. Cf. New York Times Co. v.Sullivan, 376 U.S. 254 (1964) (adopting "actual malice" standardin certain defamation cases). A court could also consider employment ofan elevated standard of proof of scienter in civil cases, such as proofby "clear and convincing" evidence. Cf. Gertz v. Robert Welch,Inc., 418 U.S. 323, 342 (1974) (requiring clear and convincing evidenceof actual malice in certain defamation cases). Finally, appellate courtsmight be warranted in conducting independent review of the findings of thetrier of fact. Cf. Bose Corp. v. Consumers Union of United States, Inc.,466 U.S. 485, 498-511 (1984) (de novo appellate review of findings regardingactual malice). See generally Waters v. Churchill, 511 U.S. 661, 669-671(1994) (plurality opinion) (discussing circumstances in which First Amendmentrequires modifications of burdens of proof and other procedural rules).To the extent that enforcement of the standards of Title III leaves anyquestion that the press may act with excessive caution, such proceduralmeasures, individually or collectively, would be more than adequate to ensurethat Title III does not deter the dissemination of information from sourcesother than illegal electronic surveillance. Such an approach would far betterreconcile the privacy and expression interests in this case than a holdingthat invalidates Congress's effort to provide comprehensive legal protectionagainst the unauthorized dissemination of information acquired through illegalinterceptions.

CONCLUSION

The judgment of the court of appeals should be reversed.

Respectfully submitted.

SETH P. WAXMAN
Solicitor General
DAVID W. OGDEN
Assistant Attorney General
MICHAEL R. DREEBEN
Deputy Solicitor General
JEFFREY A. LAMKEN
Assistant to the Solicitor
General
DOUGLAS N. LETTER
SCOTT R. MCINTOSH
Attorneys

SEPTEMBER 2000

1 "Pet. App." refers to the Appendix to the Petition for aWrit of Certiorari in United States v. Vopper, No. 99-1728.

2 As enacted in 1968, Title III applied only to wire and oral communications.See Pub. L. No. 90-351, Tit. III, § 802, 82 Stat. 212. Consequently,for some time it was unsettled whether Title III's definition of "wirecommunication" reached the radio portion of cellular telephone communications.See, e.g., Edwards v. State Farm Ins. Co., 833 F.2d 535, 538 (5th Cir. 1987).In 1986, however, Congress amended Title III to clarify that Title III extendsto communications on cellular and other wireless telephone systems, see18 U.S.C. 2510(1). At the same time, Congress extended Title III to coverthe electronic transmission of non-voice data such as electronic mail andother Internet communications. See 18 U.S.C. 2510(12) (1994 & Supp.IV 1998). See generally Electronic Communications Privacy Act of 1986 (ECPA),Pub. L. No. 99-508, 100 Stat. 1848; S. Rep. No. 541, supra, at 1-3, 7-8,11.

3 During the phone call, Kane stated that, if the school board did notoffer more than a three percent raise, the union would have to "goto their, their homes . . . To blow off their front porches, we'll haveto do some work on some of those guys." J.A. 46.

4 Although Bartnicki and Kane's complaint prays for compensatory damages,J.A. 18, the parties have stipulated to dismissal of that request, J.A.130. Accordingly, this case does not present any question concerning thepropriety or proper measure of compensatory damages.

5 Under 28 U.S.C. 2403(a), when the constitutionality of an Act of Congressis drawn into question in a federal suit to which the United States is nota party, federal courts are required to notify the Attorney General andto permit the United States to intervene with "all the rights of aparty" to defend the constitutionality of the statute.

6 The three courts of appeals that have considered the issue have allcome to that conclusion. See Pet. App. 28a (intermediate scrutiny appropriatebecause Title III is "content-neutral" and "does not relyon the communicative impact of speech"); Boehner v. McDermott, 191F.3d 463, 467 (D.C. Cir. 1999) (intermediate scrutiny appropriate becauseTitle III contains "generally applicable, content-neutral prohibitionson conduct that create incidental burdens on speech"), petition forcert. pending, No. 99-1709; Peavy v. WFAA-TV, No. 99-10272, 2000 WL 1051909(5th Cir. July 31, 2000) (intermediate scrutiny applicable to Title IIIwhere defendants had some participation in the illegal interceptions, becausethe statute is content neutral and imposes an incidental burden on speech).And, in contrast to the court below, both the D.C. Circuit and the FifthCircuit went on to find Title III's restrictions constitutional as appliedto the facts of those cases.

7 Because the ultimate issue is whether the justification for a regulationturns on the content of the regulated expression, "even a regulationneutral on its face may be content based," and hence subject to strictscrutiny, "if its manifest purpose is to regulate speech because ofthe message it conveys." Turner, 512 U.S. at 645. Conversely, a lawthat regulates speech based on its subject matter may nevertheless be deemedcontent neutral, and therefore subject to intermediate scrutiny, if (forexample) it is justified by non-communicative "secondary effects"associated with the speech rather than by the communicative effect of thespeech. See City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 47-55(1986); see also Boos v. Barry, 485 U.S. 312, 320-321 (1988) (pluralityopinion).

8 In Cohen, the Court held that the general law at issue in that casewas not subject to any heightened scrutiny under the First Amendment, notwithstandingthe fact that the defendant was a member of the media and the law couldhave an incidental impact on newsgathering and reporting. 501 U.S. at 668-669.The Court has also recognized, however, that the application of a generallaw to "conduct with a significant expressive element" may makeintermediate scrutiny under O'Brien appropriate. Arcara v. Cloud Books,Inc., 478 U.S. 697, 706-707 (1986). While Cohen supports the conclusionthat strict scrutiny is not appropriate for general laws that could havesome incidental impact on speech, Title III's direct application to speechmakes it appropriate to apply intermediate scrutiny under O'Brien.

9 The law at issue in Landmark prohibited the disclosure of testimonyand evidence before a judicial misconduct commission. Read literally, thelaw based its prohibition on the source of the information, since it appliedto all "papers" filed with the commission (regardless of theirsubstance) and did not prohibit publication of allegations of judicial misconductmade outside the confines of the commission. See 435 U.S. at 830 n.1. Butthe law in Landmark was still not content neutral, since the State singledout a particular type of proceeding by subject matter (judicial misconduct),and its manifest purpose was preventing public knowledge of the anticipatedcontent at such proceedings, e.g., allegations that might injure a "judge'sreputation" or damage public "confidence in the judicial system."Id. at 833. The state grand jury secrecy law addressed by the Court in Butterworthv. Smith, 494 U.S. 624 (1990), can be understood as not content neutralfor similar reasons, i.e., it was justified by the interest in suppressingspeech about the workings of a particular governmental proceeding. See id.at 632-634. In addition, Butterworth involved a prohibition on disclosureof information acquired by a witness independently of the grand jury, i.e.,lawfully obtained. Indeed, it was for that reason that the Court found DailyMail and Florida Star controlling. Id. at 632.

10 See also Denis v. LeClerc, 5 Am. Dec. 712, 716, 1811 WL 986, at *5-*6(La. Terr. Super. Orleans 1811); F. Lieber, On Civil Liberty and Self-Government109 (1853) (Because "freedom of communion" between individualsis "one of the primary elements of civil liberty," and becausenobody "can imagine himself free if his communion with his fellowsis * * * submitted to surveillance," all "[f]ree nations"guarantee not merely "the liberty of the press" but "thesacredness of epistolary communion.").

11 As Congress noted in expanding the scope of Title III in 1986, theabsence of legal protection against surreptitious interceptions would "discouragepotential customers from using innovative communications systems" and"businesses from developing new [and] innovative forms of telecommunicationsand computer technology." S. Rep. No. 541, supra, at 5. See ElectronicCommunications Privacy Act: Hearings Before the Subcomm. on Courts, CivilLiberties, and the Administration of Justice of the House Comm. on the Judiciary,99th Cong., 1st & 2d Sess. 44 (1985 & 1986) (ECPA Hearings) (testimonyof Fred W. Weingarten, Program Manager, Communication and Technologies Program,Office of Technology Assessment) ("There are two dangers in leavingthis type of new application unprotected. One danger, of course, is a gradualerosion of privacy, a loss of the right to whisper and to keep our dealingsconfidential. The other danger is that we may be denied useful applicationsand useful new technologies because they're unprotected. Consumers and userssimply will not use these services if they are not properly protected, andthey will not be developed and offered in the marketplace."). See alsoid. at 4, 38-39, 70, 93, 155 (similar testimony).

12 Indeed, "[t]he last 20 years have seen an extraordinary explosionin technologies for invading people's privacy." Protection from PersonalIntrusion Act and Privacy Protection Act of 1998: Hearing Before the HouseComm. on the Judiciary, 105th Cong., 2d Sess. 75 (1998) (statement of ProfessorLawrence Lessig, Harvard Law School). For example, an FBI publication reportsthat "[l]ittle or no technical expertise is needed to convert a readilyavailable computer equipped with sound capability, a modem, and the appropriatesoftware into a device that will allow the surreptitious interception ofany audio generated within its proximity." C. W. O'Neal, SurreptitiousAudio Surveillance: The Unknown Danger to Law Enforcement, FBI Law EnforcementBulletin, June 1998, at 10, 11. Even conversations held behind closed doorsmay not be safe from intrusion. According to some, eavesdroppers can listenthrough closed windows using a laser listening device. When the laser beamis pointed at a window, the device detects the window's vibration and thusconversations going on inside; the device can work from as far as a quarter-mileaway. See T. Larsen, The Layman's Guide to Electronic Eavesdropping 55-56(1996). See also http://www.espionage-store.com/ surveillance.html (describingdevice); http://www.pimall.com/nais/n.lazer. eaves.html (similar).

13 Respondents attempt to distinguish the market for stolen communicationsfrom the markets for stolen goods and child pornography by pointing outthat "money drives the market" for the latter products whereas,in this case, no one appears to have paid the interceptor for the tapedconversation. Vopper Br. in Opp. 12 n.7. That does not mean that the interceptionin this case had no economic motive; the individual who intercepted thephone conversation and passed it to Jack Yocum was likely motivated by adesire to embarrass the union and thwart its bargaining demands. In anyevent, whatever motivates an illegal interception-and motives range fromacquiring embarrassing information about a neighbor to achieving politicalends-the incentive to do so will be sharply diminished if there is a legalimpediment to use or disclosure of the information.

14 Even if one were to assume that empirical evidence were required,however, the government was not given the opportunity to meet that burden,as it is entitled to do under 28 U.S.C. 2403. When the constitutionalityof an Act of Congress is called into question in private litigation, federalcourts are required by law to give the United States an opportunity for"presentation of evidence" on the constitutional issue. 28 U.S.C.2403(a). In this case, however, the Attorney General did not receive noticeof respondents' constitutional challenge to Title III until after the oralargument in the court of appeals, see p. 8, supra, and the court of appealsindicated that it found the government's position to be "unsupported"for the first time in its opinion. Pet. App. 34a.

APPENDIX

1. The First Amendment to the United States Constitution provides:

Congress shall make no law respecting an establishment of religion, orprohibiting the free exercise thereof; or abridging the freedom of speech,or of the press; or the right of the people peaceably to assemble, and topetition the Government for a redress of grievances.

2. 18 U.S.C. 2510 provides in pertinent part:

§ 2510. Definitions

As used in this chapter-

(1) "wire communication" means any aural transfer made in wholeor in part through the use of facilities for the transmission of communicationsby the aid of wire, cable, or other like connection between the point oforigin and the point of reception (including the use of such connectionin a switching station) furnished or operated by any person engaged in providingor operating such facilities for the transmission of interstate or foreigncommunications or communications affecting interstate or foreign commerceand such term includes any electronic storage of such communication;

(2) "oral communication" means any oral communication utteredby a person exhibiting an expectation that such communication is not subjectto interception under circumstances justifying such expectation, but suchterm does not include any electronic communication;

* * *

(4) "intercept" means the aural or other acquisition of thecontents of any wire, electronic, or oral communication through the useof any electronic, mechanical, or other device.

* * *

(8) "contents", when used with respect to any wire, oral, orelectronic communication, includes any information concerning the substance,purport, or meaning of that communication;

* * *

(12) "electronic communication" means any transfer of signs,signals, writing, images, sounds, data, or intelligence of any nature transmittedin whole or in part by a wire, radio, electromagnetic, photoelectronic orphotooptical system that affects interstate or foreign commerce, but doesnot include-

(A) any wire or oral communication;

(B) any communication made through a tone-only paging device; or

(C) any communication from a tracking device (as defined in section 3117of this title);

3. 18 U.S.C. 2511 provides in pertinent part:

§ 2511. Interception and disclosure of wire, oral, or electroniccommunications prohibited

(1) Except as otherwise specifically provided in this chapter [18 U.S.C.2510-2520] any person who-

(a) intentionally intercepts, endeavors to intercept, or procures anyother person to intercept or endeavor to intercept, any wire, oral, or electroniccommunication; [or]

* * *

(c) intentionally discloses, or endeavors to disclose, to any other personthe contents of any wire, oral, or electronic communication, knowing orhaving reason to know that the information was obtained through the interceptionof a wire, oral, or electronic communication in violation of this subsection;[or]

(d) intentionally uses, or endeavors to use, the contents of any wire,oral, or electronic communication, knowing or having reason to know thatthe information was obtained through the interception of a wire, oral, orelectronic communication in violation of this subsection; * * *

* * *

shall be punished as provided in subsection (4) or shall be subject tosuit as provided in subsection (5).

* * *

(4)(a) Except as provided in paragraph (b) of this subsection or in subsection(5), whoever violates subsection (1) of this section shall be fined underthis title or imprisoned not more than five years, or both.

(b) If the offense is a first offense under paragraph (a) of this subsectionand is not for a tortious or illegal purpose or for purposes of direct orindirect commercial advantage or private commercial gain, and the wire orelectronic communication with respect to which the offense under paragraph(a) is a radio communication that is not scrambled, encrypted, or transmittedusing modulation techniques the essential parameters of which have beenwithheld from the public with the intention of preserving the privacy ofsuch communication, then-

(i) if the communication is not the radio portion of a cellular telephonecommunication, a cordless telephone communication that is transmitted betweenthe cordless telephone handset and the base unit, a public land mobile radioservice communication or a paging service communication, and the conductis not that described in subsection (5), the offender shall be fined underthis title or imprisoned not more than one year, or both; and

(ii) if the communication is the radio portion of a cellular telephonecommunication, a cordless telephone communication that is transmitted betweenthe cordless telephone handset and the base unit, a public land mobile radioservice communication or a paging service communication, the offender shallbe fined under this title.

(c) Conduct otherwise an offense under this subsection that consistsof or relates to the interception of a satellite transmission that is notencrypted or scrambled and that is transmitted-

(i) to a broadcasting station for purposes of retransmission to the generalpublic; or

(ii) as an audio subcarrier intended for redistribution to facilitiesopen to the public, but not including data transmissions or telephone calls,

is not an offense under this subsection unless the conduct is for thepurposes of direct or indirect commercial advantage or private financialgain.

(5)(a)(i) If the communication is-

(A) a private satellite video communication that is not scrambled orencrypted and the conduct in violation of this chapter is the private viewingof that communication and is not for a tortious or illegal purpose or forpurposes of direct or indirect commercial advantage or private commercialgain; or

(B) a radio communication that is transmitted on frequencies allocatedunder subpart D of part 74 of the rules of the Federal Communications Commissionthat is not scrambled or encrypted and the conduct in violation of thischapter is not for a tortious or illegal purpose or for purposes of director indirect commercial advantage or private commercial gain,

then the person who engages in such conduct shall be subject to suitby the Federal Government in a court of competent jurisdiction.

(ii) In an action under this subsection-

(A) if the violation of this chapter is a first offense for the personunder paragraph (a) of subsection (4) and such person has not been foundliable in a civil action under section 2520 of this title, the Federal Governmentshall be entitled to appropriate injunctive relief; and

(B) if the violation of this chapter is a second or subsequent offenseunder paragraph (a) of subsection (4) or such person has been found liablein any prior civil action under section 2520, the person shall be subjectto a mandatory $500 civil fine.

(b) The court may use any means within its authority to enforce an injunctionissued under paragraph (ii)(A), and shall impose a civil fine of not lessthan $500 for each violation of such an injunction.

4. 18 U.S.C. 2512 provides:

§ 2512. Manufacture, distribution, possession, and advertising ofwire, oral, or electronic communication intercepting devices prohibited

(1) Except as otherwise specifically provided in this chapter, any personwho intentionally-

(a) sends through the mail, or sends or carries in interstate or foreigncommerce, any electronic, mechanical, or other device, knowing or havingreason to know that the design of such device renders it primarily usefulfor the purpose of the surreptitious interception of wire, oral, or electroniccommunications;

(b) manufactures, assembles, possesses, or sells any electronic, mechanical,or other device, knowing or having reason to know that the design of suchdevice renders it primarily useful for the purpose of the surreptitiousinterception of wire, oral, or electronic communications, and that suchdevice or any component thereof has been or will be sent through the mailor transported in interstate or foreign commerce; or

(c) places in any newspaper, magazine, handbill, or other publicationany advertisement of-

(i) any electronic, mechanical, or other device knowing or having reasonto know that the design of such device renders it primarily useful for thepurpose of the surreptitious interception of wire, oral, or electronic communications;or

(ii) any other electronic, mechanical, or other device, where such advertisementpromotes the use of such device for the purpose of the surreptitious interceptionof wire, oral, or electronic communications,

knowing or having reason to know that such advertisement will be sentthrough the mail or transported in interstate or foreign commerce,

shall be fined under this title or imprisoned not more than five years,or both.

(2) It shall not be unlawful under this section for-

(a) a provider of wire or electronic communication service or an officer,agent, or employee of, or a person under contract with, such a provider,in the normal course of the business of providing that wire or electroniccommunication service, or

(b) an officer, agent, or employee of, or a person under contract with,the United States, a State, or a political subdivision thereof, in the normalcourse of the activities of the United States, a State, or a political subdivisionthereof,

to send through the mail, send or carry in interstate or foreign commerce,or manufacture, assemble, possess, or sell any electronic, mechanical, orother device knowing or having reason to know that the design of such devicerenders it primarily useful for the purpose of the surreptitious interceptionof wire, oral, or electronic communications.

(3) It shall not be unlawful under this section to advertise for salea device described in subjection (1) of this section if the advertisementis mailed, sent, or carried in interstate or foreign commerce solely toa domestic provider of wire or electronic communication service or to anagency of the United States, a State, or a political subdivision thereofwhich is duly authorized to use such device.

5. 18 U.S.C. 2515 provides:

§ 2515. Prohibition of use as evidence of intercepted wire or oralcommunications

Whenever any wire or oral communication has been intercepted, no partof the contents of such communication and no evidence derived therefrommay be received in evidence in any trial, hearing, or other proceeding inor before any court, grand jury, department, officer, agency, regulatorybody, legislative committee, or other authority of the United States, aState, or a political subdivision thereof if the disclosure of that informationwould be in violation of this chapter.

6. 18 U.S.C. 2520 provides:

§ 2520. Recovery of civil damages authorized

(a) IN GENERAL.-Except as provided in section 2511(2)(a)(ii), any personwhose wire, oral, or electronic communication is intercepted, disclosed,or intentionally used in violation of this chapter may in a civil actionrecover from the person or entity which engaged in that violation such reliefas may be appropriate.

(b) RELIEF.-In an action under this section, appropriate relief includes-

(1) such preliminary and other equitable or declaratory relief as maybe appropriate;

(2) damages under subsection (c) and punitive damages in appropriatecases; and

(3) a reasonable attorney's fee and other litigation costs reasonablyincurred.

(c) COMPUTATION OF DAMAGES.-(1) In an action under this section, if theconduct in violation of this chapter is the private viewing of a privatesatellite video communication that is not scrambled or encrypted or if thecommunication is a radio communication that is transmitted on frequenciesallocated under subpart D of part 74 of the rules of the Federal CommunicationsCommission that is not scrambled or encrypted and the conduct is not fora tortious or illegal purpose or for purposes of direct or indirect commercialadvantage or private commercial gain, then the court shall assess damagesas follows:

(A) If the person who engaged in that conduct has not previously beenenjoined under section 2511(5) and has not been found liable in a priorcivil action under this section, the court shall assess the greater of thesum of actual damages suffered by the plaintiff, or statutory damages ofnot less than $50 and not more than $500.

(B) If, on one prior occasion, the person who engaged in that conducthas been enjoined under section 2511(5) or has been found liable in a civilaction under this section, the court shall assess the greater of the sumof actual damages suffered by the plaintiff, or statutory damages of notless than $100 and not more than $1000.

(2) In any other action under this section, the court may assess as damageswhichever is the greater of-

(A) the sum of the actual damages suffered by the plaintiff and any profitsmade by the violator as a result of the violation; or

(B) statutory damages of whichever is the greater of $100 a day for eachday of violation or $10,000.

(d) DEFENSE.-A good faith reliance on-

(1) a court warrant or order, a grand jury subpoena, a legislative authorization,or a statutory authorization;

(2) a request of an investigative or law enforcement officer under section2518(7) of this title; or

(3) a good faith determination that section 2511(3) of this title permittedthe conduct complained of;

is a complete defense against any civil or criminal action brought underthis chapter or any other law.

(e) LIMITATION.-A civil action under this section may not be commencedlater than two years after the date upon which the claimant first has areasonable opportunity to discover the violation.

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