US Supreme Court Briefs

No. 99-1728


In the Supreme Court of the United States



UNITED STATES OF AMERICA, PETITIONER

v.

FREDERICK W. VOPPER, ET AL.



ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT



REPLY BRIEF FOR THE UNITED STATES



SETH P. WAXMAN
Solicitor General
Counsel of Record
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217




In the Supreme Court of the United States


No. 99-1728

UNITED STATES OF AMERICA, PETITIONER

v.

FREDERICK W. VOPPER, ET AL.



ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT



REPLY BRIEF FOR THE UNITED STATES



One of this Court's most important roles is "to review the exerciseof the grave power of annulling an Act of Congress." United Statesv. Gainey, 380 U.S. 63, 65 (1965). The Court has performed that role notonly when a lower court invalidates a federal statute on its face, but alsowhen the statute is held to be unconstitutional as applied. See, e.g., UnitedStates v. Edge Broad. Co., 509 U.S. 418, 421-423 (1993) (reviewing courtof appeals decision holding federal gambling advertising law unconstitutional"as applied to respondent"). In this case, the court of appealsheld that two basic provisions of Title III of the Omnibus Crime Controland Safe Streets Act of 1968 violate the First Amendment with respect toa broad and important class of applications. That decision warrants review.

1. Seeking to avoid further review, respondents contend that the Third Circuit'sdecision constitutes a "fact-bound" application of settled FirstAmendment principles to "the unique facts of this case." VopperBr. in Opp. i, 4; see Yocum Br. in Opp. 5-6. The Third Circuit's own opiniondisposes of that argument. The Third Circuit framed its holding in the followingterms:

We * * * hold that the Wiretapping Acts fail the test of intermediate scrutinyand may not constitutionally be applied to penalize the use or disclosureof illegally intercepted information where there is no allegation that thedefendants participated in or encouraged that interception.

Pet. App. 42a.

There is nothing remotely fact-bound about that holding. Title III expresslyprohibits the disclosure and use of illegally intercepted communicationsby any person who knows or has reason to know that the communications wereintercepted in violation of Title III. 18 U.S.C. 2511(1)(c) and (d). Underthe Third Circuit's holding, Section 2511(1)(c) and (d) may not be appliedto anyone other than the wiretapper himself, even when the communicationis disclosed or used with full knowledge of its illegal provenance, unlessthe person who discloses or uses the communication "participated inor encouraged" the interception. The breadth of that holding reachesfar beyond the facts of this case.

Nor does it matter (Vopper Br. in Opp. 10) that, at several points in itsopinion, the court of appeals specifically addressed the disclosure or useof intercepted communications concerning matters of "public significance."See, e.g., Pet. App. 2a. Even if the decision were explicitly confined tocases involving matters of "public significance," the breadthand import of the decision would be largely unchanged. As a practical matter,it is information of public significance that is most likely to be passedfrom a wiretapper to third parties and, as in this case, to be publiclydisclosed or otherwise used in violation of Section 2511(1)(c) and (d).Indeed, this case and Boehner v. McDermott, 191 F.3d 463 (D.C. Cir. 1999),petition for cert. pending, No. 99-1709, both concern the application ofSection 2511(1)(c) with respect to communications on matters of public import.Cases involving the use and disclosure of communications that are not ofpublic concern, such as communications between patients and their doctors(Vopper Br. in Opp. 12 n.7), in contrast, promise to be relatively moreinfrequent, since such communications, once intercepted, are unlikely tobe disclosed by the wiretapper or be published by the media.

The constitutional reasoning underlying the Third Circuit's decision, moreover,can hardly be considered fact-bound. The decision below rests chiefly ontwo determinations by the court of appeals. The first is that the governmenthas not shown that prohibiting the disclosure and use of illegally interceptedcommunications materially deters electronic surveillance in the first instance.Pet. App. 33a-35a. The second is that, even though Section 2511(1)(c) and(d) proscribes disclosure and use of illegally intercepted communicationsonly by persons who know or have reason to know of the communication's illegalprovenance, it may deter the news media from publishing material that isnot the product of illegal surveillance. Id. at 36a-37a. We have summarizedthe shortcomings of that reasoning in our petition. Pet. 13-15. What bearsnote here is that the court of appeals' reasoning is not tied to the particularfacts of this case. Instead, its reasoning applies with equal force (orlack of force) to any case in which Section 2511(1)(c) and (d) is appliedto the disclosure or use of illegally intercepted communications of publicsignificance by persons who did not participate in the interception.1

Moreover, by its terms, the Third Circuit's decision applies not only toTitle III, but also to the corresponding provisions of the Pennsylvaniaelectronic surveillance statute. And as explained in our petition, the court'sreasoning is equally applicable to the electronic surveillance laws of numerousother States. Even with respect to Title III alone, the decision has seriouspractical implications for new and rapidly expanding private communicationstechnologies like wireless telephones and the Internet, which are relativelyvulnerable to electronic surveillance and therefore are in particular needof the additional protection that Section 2511(1)(c) and (d) provides. SeePet. 19-20 & n.9. Respondents' submission does nothing to dispel thepractical, as well as doctrinal, significance of the decision below.

2. As explained in our petition, the decision below is also inconsistentwith Boehner v. McDermott, supra, in which the D.C. Circuit rejected a virtuallyindistinguishable First Amendment challenge to the constitutionality of18 U.S.C. 2511(1)(c) and a parallel Florida statute. See Pet. 16-17. Respondents'effort to distinguish Boehner (Vopper Br. in Opp. 15-21) is unsuccessful.

Although the statutory claims in this case are broader in some respectsthan the claims in Boehner, both cases include claims under 18 U.S.C. 2511(1)(c)against individuals who did not participate in the initial illegal interceptionof the communication, but who received a recording of the intercepted conversationand conveyed it to the news media with (according to the allegations inthe complaints) knowledge or reason to know that the information was obtainedin violation of Title III. In Boehner, the D.C. Circuit held that the applicationof Section 2511(1)(c) to such an individual does not violate the First Amendment.In this case, in direct contrast, the Third Circuit held that the applicationof Section 2511(1)(c) to such an individual (as well as to the news media)does violate the First Amendment.

Respondents argue at length that the two cases are factually distinguishablebecause the defendant in Boehner (Rep. McDermott) received the recordingin circumstances that put him on notice that the recording was the fruitof an illegal interception and that the wiretappers allegedly "expectedsomething of value in return" (immunity from prosecution). Vopper Br.in Opp. 18. Those factual distinctions have no statutory or constitutionalsignificance. In statutory terms, 18 U.S.C. 2511(1)(c) and (d) imposes liabilityon those who use or disclose the contents of an intercepted communicationwith knowledge that it was unlawfully obtained. The statute thus rendersthe defendant liable if he knows of the communication's unlawful originat the time of the use or disclosure, without regard to the defendant'sknowledge or conduct at the time he received it. For purposes of the statute,respondents' and McDermott's actions are therefore indistinguishable. Thecomplaints in their respective cases both allege that they violated thestatutory prohibition on disclosure of intercepted information because theyknew or had reason to know of the information's illegal origin at the timethey disclosed it, while neither defendant violated (and neither participatedin or encouraged the violation of) the underlying prohibition on unauthorizedsurveillance itself.

Similarly, as a constitutional matter, there is no reason why the constitutionalityof applying Section 2511(1)(c) to a particular defendant should turn onwhether the wiretapper conveys illegally intercepted communications to thedefendant in person or anonymously, or on whether the wiretapper acts underthe mistaken impression (or simply the unilateral hope) that the defendantwill provide a quid pro quo. Nor does the court of appeals' holding in thiscase-that Title III "may not constitutionally be applied to penalizethe use or disclosure of illegally intercepted information where there isno allegation that the defendants participated in or encouraged that interception,"Pet. App. 42a-recognize such a distinction. In Boehner v. McDermott, ashere, the defendant "use[d] or disclos[ed]" an unlawfully interceptedcommunication but neither "participated in [n]or encouraged the interception."In Boehner, the application of Title III was upheld; in this case, in contrast,it was held unconstitutional.

At a more basic level, respondents ignore the extent to which the reasoningof the two cases is inconsistent. For example, the decision in this caserests in large measure on the Third Circuit's skepticism that prohibitingthe disclosure and use of illegally intercepted communications by thirdparties materially strengthens the underlying prohibition on electronicsurveillance. See Pet. App. 33a-35a, 41a. In contrast, the D.C. Circuitregarded it as self-evident that prohibiting the disclosure of illegallyintercepted information by third parties contributes to the goal of deterringillegal wiretapping by reducing the incentive for such activity. See Boehner,191 F.3d at 469-470, 478.2 See also id. at 471 (invalidation of Section2511(1)(c) would "render[] the government powerless to prevent disclosureof private information" because criminals can "launder" illegallyintercepted communications) (internal quotation marks omitted).3

In short, the two decisions take fundamentally disparate approaches to theFirst Amendment issues in this case and reached contrary results on constitutionallyindistinguishable facts. For that reason, too, certiorari should be granted.

3. As explained in our petition, this case presents the question this Courtexpressly reserved in Florida Star v. B.J.F., 491 U.S. 524 (1989): whether,and in what circumstances, the government constitutionally may prohibitthe dissemination of information that comes from a source who obtained theinformation illegally. See id. at 535 n.8 ("We have no occasion toaddress" the question "whether, in cases where information hasbeen acquired unlawfully by a newspaper or by a source, government may everpunish not only the unlawful acquisition, but the ensuing publication aswell.") (emphases added). The ruling of the court of appeals addressesprecisely that issue, holding that Title III may not constitutionally beapplied to prohibit the disclosure (or other use) of illegally interceptedinformation by persons who did not themselves participate in or encouragethe interception. Pet. App. 42a.

Respondents assert that the question reserved in Florida Star is not presentedin this case. See Vopper Br. in Opp. 5-7. That assertion reflects a basicmisunderstanding of the Third Circuit's treatment of Florida Star. See Pet.App. 10a-14a. Respondents correctly point out that the Third Circuit declinedto decide whether the challenged provisions of Title III would satisfy thestrict scrutiny test employed in Florida Star itself. Vopper Br. in Opp.6. The Third Circuit did so, however, precisely because it concluded thatthis case is not governed by the holding in Florida Star, but rather concernedthe issue Florida Star reserved-whether and to what extent it is permissibleto impose liability for the publication of information that a source obtainedunlawfully. See Pet. App. 13a. Moreover, defending the judgment, respondentsargue (Vopper Br. in Opp. 7 n.3) that the court of appeals erred by failingto apply strict scrutiny, notwithstanding Florida Star's reservation ofthe issue. Compare Boehner, 191 F.3d at 480 (Sentelle, J., dissenting) (applyingstrict scrutiny). The level of scrutiny to be applied, of course, is a criticalissue in this case, as is the proper application of that level of scrutinyto the use and disclosure prohibitions that Congress found necessary tothe protection of privacy when it enacted Title III.

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted.

SETH P. WAXMAN
Solicitor General


JUNE 2000

1 When the constitutionality of an Act of Congress is called into questionin private litigation, federal courts not only must notify the AttorneyGeneral and permit the United States to intervene in defense of the statute,but also must afford the United States the opportunity to make a "presentationof evidence" on the constitutional issue. 28 U.S.C. 2403(a). In thiscase, however, the United States did not have that opportunity, becauseit did not receive notice of the constitutional challenge to Title III untilafter the oral argument in the court of appeals. See Pet. 6. Thus, evenassuming arguendo that an evidentiary showing were required to vindicatethe challenged provisions of Title III, the court of appeals erred in invalidatingthose provisions without giving the United States the opportunity to providesuch support. Cf. Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 664-668(1994).

2 Indeed, it was for that very reason that the dissent in this case quotedextensively from Boehner. See Pet. App. 50a-51a (Pollack, J., dissenting)(quoting Boehner, 191 F.3d at 470).

3 The decisions are similarly at odds regarding the govern-ment's interestin protecting against the loss of privacy that occurs when illegally interceptedcommunications are disclosed following their interception. The Third Circuitacknowledged that "the prohibition on using or disclosing the contentsof an illegally intercepted communication serves that interest," butmistakenly regarded the interest as a "content-based" one thatcannot be taken into account for purposes of intermediate scrutiny underthe First Amendment. See Pet. App. 26a-27a. In contrast, the D.C. Circuittreated the government's interest in protecting privacy by prohibiting disclosureof intercepted communications as a "substantial governmental interestunrelated to the suppression of free expression," and hence one thatis properly cognizable under intermediate scrutiny. Boehner, 191 F.3d at468 (internal quotation marks omitted).

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