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Wednesday, May. 30, 2001

Last week, in Bartnicki v. Vopper, the Supreme Court ruled by a 6-3 margin that a radio station's broadcast of an illegally intercepted cell phone conversation is protected by the First Amendment — at least in those instances where the station was not itself involved in the illegal conduct, and the content of the conversation was a matter of public concern.

The case has been widely portrayed as a victory for the media. However, a close look at the method by which the Court reached its decision suggests that the victory may be short-lived.

When Rights Collide


was a difficult case because, as Justice Stevens acknowledged in his majority opinion (and as FindLaw columnist Julie Hilden argued in this space shortly after the oral argument), there were interests of constitutional magnitude on both sides.

On one side, there was the First Amendment interest of the media in disseminating, and the public in learning, newsworthy information. The intercepted conversation

included a statement by the President of a local teachers union that he might "have to go to [the] homes" of the school board members with whom the union was negotiating "[t]o blow off their front porches." Certainly, this apparent threat was newsworthy.

On the other side was the privacy interest of all cell phone users, and of all those who may ever find themselves on the other end of a call from or to a cell phone user — that is, of virtually everyone in our society.

This privacy interest implicates two guarantees of the Bill of Rights. The Fourth Amendment protects privacy, including privacy against electronic eavesdropping. And the First Amendment protects private conversations, because people who fear that their every word may become public will be reluctant to speak with one another frankly.

The Supreme Court resolved the case in favor of the media, stating that "privacy concerns give way when balanced against the interest in publishing matters of public importance." Reasonable people can disagree about whether the Court struck the proper balance.

What is perhaps more remarkable, though, than the Court's result is the fact that the Justices described their job as one of balancing competing rights. In so doing, the Court adopted a method commonly used by constitutional courts around the world, but rarely used in free speech cases in the United States.

The Scales of Justice and the Perils of Balancing

The metaphor of judging as balancing is a familiar one. We say that a judge's job is to weigh competing arguments, and Justice itself is often depicted as a blindfolded classical figure holding a scale.

Yet for roughly the last forty years, balancing has been out of favor in First Amendment law. The person who is arguably most responsible for the decline of balancing is the late Justice Hugo Black.

When considering cases in which the government asserted an interest in regulating speech or the press, Justice Black would reach into his breast pocket and remove his copy of the Constitution. Then he would read the relevant text of the First Amendment: "Congress shall make no law . . . abridging the freedom of speech, or of the press. . . . " Then he would intone: "No law means no law." No ifs, no ands, no buts — and no balancing.

Justice Black took an absolutist position on free speech because he worried that the methodology of balancing would systematically undervalue free speech. In any given case, the interest in regulating speech — whether in decorum, reputation, safety, or privacy — would be immediate and obvious.

But the benefits from free speech could appear amorphous and diffuse, especially if, as is often true of litigated cases, the speech in question is unpopular — such as crude song lyrics or flag burning. Thus, case-by-case balancing, Justice Black feared, would, little by little, leave freedom of expression unprotected.

Justice Black's fear was realistic. During the red scare of the 1920s and again during the McCarthy era, the Supreme Court — applying what was essentially the kind of ad hoc balancing test that Black abhorred — had acquiesced in the prosecution of Communists and other radicals. Yet in retrospect, the conduct of the persons prosecuted appears to have been, for the most part, peaceful expression and association, the very things the First Amendment is supposed to protect.

Rigid First Amendment Rules Bend in Bartnicki

Because of the perils of balancing, Justice Black advocated, and the Supreme Court eventually accepted, a set of rigid and strict categorical rules for evaluating regulations of speech and the press. These rules are meant to stiffen the spines of judges so that they can defend even unpopular speech against censorship.

Categorical rules are also thought to be preferable to balancing because they lead to greater certainty in application — and uncertainty is a special evil in the First Amendment context because of what constitutional lawyers call the "chilling effect." Not knowing where a balancing court might draw the line, potential speakers engage in self-censorship even when what they have to say might ultimately be ruled protected.

The Bartnicki case itself illustrates the uncertainty that can result from balancing. In a concurring opinion for himself and Justice Sandra Day O'Connor, Justice Stephen Breyer identified a total of four factors as crucial to his willingness to strike the balance in favor of the media.

The factors were as follows: First, the broadcasters themselves did not engage in unlawful conduct to obtain the tape recording. Second, they did not directly or indirectly encourage or induce such unlawful conduct. Third, the substance of the intercepted conversation proposed a wrongful act (bombing). Fourth, the speakers had a diminished privacy interest because they had voluntarily engaged in a matter of public controversy (the conflict between the union and the school board). Yet none of these factors are self-applying.

Moreover, Justice Breyer made clear that his vote and Justice O'Connor's depended upon all four factors. But this leads to an obvious question. Suppose we subtract one or more of the listed factors, or add a new, fifth factor to the other side of the scale. Which side wins then?

The answer to a question such as this is inherently uncertain because, notwithstanding the metaphor of balancing, precise weights are never assigned to any of the factors. Nor are we even sure that the quantities being measured are commensurate. As Justice Antonin Scalia once wrote in another context, the whole enterprise is rather "like judging whether a particular line is longer than a particular rock is heavy."

In Defense of Balancing

In light of these shortcomings, can anything be said in favor of balancing? Certainly. Viewed from a different perspective, the very vices to which its critics point can be understood as virtues. For instance, it is true that balancing can leave judges with discretion, but that can often be a good thing.

Discretion enables a judge to do justice in the particular case, whereas the rigid rules that the critics of balancing favor can often lead to injustice. For just as rules limit government officials' opportunities to make foolish decisions, rules also limit their opportunities to make wise ones.

If the virtue of rules is their control of arbitrary discretion, their vice is the rigidity of bureaucracy.

And even granting that it would be a good thing to control judicial discretion where the First Amendment is concerned, rules may not control the exercise of discretion; they may just hide it.

After all, even a free speech absolutist like Justice Black must make judgment calls — deciding, for example, what counts as free speech in the first place. (Flag burning? Nude dancing? Software?) And, balancers say, those judgment calls can be every bit as subjective as open balancing.

Consider the 1971 case of Cohen v. California. There, the Supreme Court ruled that it violated the First Amendment to apply a California disorderly conduct statute to an opponent of the Vietnam War for wearing a jacket emblazoned with the words "Fuck the Draft."

A victory for Justice Black and his free speech absolutism? Not in Black's view. He dissented, on the ground that the jacket wearing was conduct, not speech.

Is it not better for a court to be honest about the fact that it is balancing competing values than to pretend, as Justice Black did in the Cohen case, that unpopular speech falls outside the category of speech entirely?

It is precisely this sort of sentiment that has led the drafters of modern Bills of Rights to provide expressly for balancing. The Canadian Charter of Rights and Freedoms is typical. It guarantees free speech and other rights "subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society."

In the judgment of our neighbors to the north, and nearly every other democracy in the world, because some balancing is inevitable, it should be openly acknowledged in the fundamental legal documents themselves.

Is Balancing Making a Comeback?

Some readers may conclude that the arguments for categorical rules versus ad hoc balancing in free speech cases are, dare I say it, rather evenly balanced. Nonetheless, in recent decades, the U.S. Supreme Court has only very rarely employed ad hoc balancing in free speech cases.

Yet in Bartnicki, none of the Justices objected to balancing. They only disagreed about the separate question of how to strike the balance given the particular facts before them. Does this herald a new age of balancing?

Probably not. Recall that in Bartnicki, unlike in most free speech cases, there were constitutional rights on both sides. Indeed, in Bartnicki the very same right — the First Amendment right — was on both sides, asserted by both the radio station and the cell phone user.

Even if one generally dislikes balancing, there would appear to be no alternative where each side invokes the Constitution — and, indeed, the very same constitutional right — to trump the other. Nonetheless, Bartnicki's significance cannot be minimized so easily. After all, there was an alternative to balancing that the Court could readily have chosen, and that would have laid down a categorical rule.

A Categorical Rule the Court Refused to Accept

To see why a categorical rule was possible, consider whether the First Amendment really appears on both sides here. And remember that the Bill of Rights is a limit on government action, not private conduct.

As such, the Bill of Rights could obviously be invoked by the defendants — who were being sued pursuant to federal and Pennsylvania statutes enacted by governments. But should it have been invoked by the plaintiffs, cell phone users who only claimed harm by private actors — the unknown person who taped the plaintiffs' conversation, and the media defendants who disseminated it?

If not, then only the media defendants, and not the cell phone users, properly invoked the First Amendment. And the proper decision rule in the case could have been simple and categorical: The cell phone-using plaintiffs, who only asserted privacy and speech interests must lose to the media defendants, who asserted constitutional rights.

But though six Justices sided with the media defendants in Bartnicki, not one of those Justices was willing to adopt this categorical rule. As a result, the case can be seen as, in one sense, an important victory for privacy interests, and also for free speech interests asserted against private actors.

While these interests were outweighed in Bartnicki itself, in some future case they may well tip the balance in the other direction. All nine Justices seem prepared to recognize that privacy and free speech can be imperiled by private actors no less than by the government.

Ironically, the dissent in Bartnicki nevertheless warned that the majority gave privacy short shrift. But in truth, the case may become an important precedent for treating privacy as having great constitutional weight.

Michael C. Dorf, a FindLaw columnist, is Vice Dean and Professor of Law at Columbia University.

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