US Supreme Court Briefs

No. 99-1728

In the Supreme Court of the United States






Solicitor General
Counsel of Record
Acting Assistant Attorney
Deputy Solicitor General
Assistant to the Solicitor
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217


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.


Petitioner United States of America appeared as an intervenor of right inthe court of appeals pursuant to 28 U.S.C. 2403(a). Respondents FrederickW. 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 thedistrict court and appellants in the court of appeals. Petitioners GloriaBartnicki and Anthony F. Kane, Jr., were plaintiffs in the district courtand appellees in the court of appeals.

In the Supreme Court of the United States

No. 99-1728






The Solicitor General, on behalf of the United States of America, petitionsfor a writ of certiorari to review the judgment of the United States Courtof Appeals for the Third Circuit in this case.


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


The judgment of the court of appeals was entered on December 27, 1999. Thepetitions for rehearing were denied on February 25, 2000 (App., infra, 82a-83a).The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).


The First Amendment to the United States Constitution and the 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 the Appendix at App.,infra, 84a-91a.


1. Title III of the Omnibus Crime Control and Safe Streets Act of 1968,as amended, 18 U.S.C. 2510 et seq. (Title III), is a "comprehensivescheme for the regulation of wiretapping and electronic surveillance,"Gelbard v. United States, 408 U.S. 41, 46 (1972), and is designed to "protecteffectively the privacy of wire and oral communications." Pub. L. No.90-351, Tit. III, § 801(b), 82 Stat. 211 (Congressional findings). See also S. Rep. No.1097, 90th Cong., 2d Sess. 66 (1968) (1968 Senate Report); Gelbard, 408U.S. at 48.

a. Consistent with that goal, Title III broadly prohibits the interceptionof wire, oral, and electronic communications except where authorized underTitle III itself. 18 U.S.C. 2511(1)(a). It also sets forth the proceduresthat must be employed, and the substantive criteria that must be met, beforea wiretap or other form of electronic surveillance may be authorized underTitle III. 18 U.S.C. 2516, 2518 (1994 & Supp. IV 1998). See also 18U.S.C. 2511(2).

As enacted in 1968, Title III applied only to wire and oral communications.See Tit. III, § 802, 82 Stat. 212. In 1986, however, Congress amendedTitle III to cover the electronic transmission of non-voice data such aselectronic mail and other Internet communications, see 18 U.S.C. 2510(12)(1994 & Supp. IV 1998), and to clarify that Title III extends to communicationson cellular and other wireless telephone systems, see 18 U.S.C. 2510(1).See also Electronic Communications Privacy Act of 1986 (ECPA), Pub. L. No.99-508, 100 Stat. 1848; S. Rep. No. 541, 99th Cong., 2d Sess. 1-3, 7-8,11 (1986).1

b. Because the interception of communications is generally a surreptitiousand difficult-to-detect enterprise, the fact or source of such an invasion"[a]ll too often * * * will go unknown." 1968 Senate Report 69;see also id. at 96 ("[U]nlawful electronic surveillance is typicallya clandestine crime."). In part for that reason, Congress determinedthat merely prohibiting unauthorized surveillance itself would not be sufficient.Id. at 69. Instead, Congress concluded that "[o]nly by striking atall aspects of the problem can privacy be adequately protected." Ibid.

Accordingly, Congress accompanied the prohibition on unauthorized interceptionswith restrictions on the use of the fruits of such invasions. 1968 SenateReport 69. See, e.g., 18 U.S.C. 2515 (unlawfully intercepted communicationsinadmissible as evidence). Section 2511(1)(c) makes it unlawful for anyperson to "intentionally disclose[], or endeavor[] to disclose, toany other person the contents of any wire, oral, or electronic communication"if the person "know[s] or ha[s] reason to know" that it "wasobtained through the interception of a wire, oral, or electronic communicationin violation of this subsection." Section 2511(1)(d) makes it unlawfulfor any person with the same knowledge or reason to know to "intentionallyuse[], or endeavor[] to use, the contents of any wire, oral, or electroniccommunication." Title III thus proscribes all unauthorized uses ofthe contents of illegally intercepted communications, including but notlimited to their disclosure, by persons knowing or having reason to knowof their unlawful source.

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 "relief asmay be appropriate," including declaratory and injunctive relief, compensatorydamages or prescribed statutory damages, and punitive damages "in appropriatecases." 18 U.S.C. 2520(b) and (c).

2. This case arises out of the illegal interception of a private telephoneconversation between Gloria Bartnicki, the chief negotiator for a Pennsylvaniateachers union, and Anthony Kane, the union's president. The union was engagedin contract 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. App., infra, 3a.

An unknown person illegally intercepted the conversation, recorded it, andanonymously delivered a copy of the recording to respondent Jack Yocum.Yocum was president of a local taxpayers association formed for the purposeof opposing the union's bargaining demands. App., infra, 3a. Yocum listenedto the recording, which contained inflammatory remarks regarding the schoolboard, and recognized the voices of Bartnicki and Kane. Ibid. He then gavethe recording to respondent Frederick Vopper, the host of a local radiotalk show. Id. at 3a-4a. Apparently, respondent Vopper retained the tapefor over a month, id. at 55a-56a n.6 (Pollak, J., dissenting), but eventuallyplayed it on his program repeatedly, id. at 4a. That program was broadcastby two local radio stations, respondent station WILK and respondent stationWGBI. Ibid.

Bartnicki and Kane brought a civil action in the United States DistrictCourt for the Middle District of Pennsylvania against respondents Yocumand Vopper, as well as the respondent radio stations, under Title III, 18U.S.C. 2520, and a parallel provision of Pennsylvania law, 18 Pa. Cons.Stat. Ann. §§ 5701 et seq. (West 1983). Bartnicki and Kane assertedthat respondents had disclosed and used the taped conversation, knowingor having reason to know that it was intercepted unlawfully, in violationof 18 U.S.C. 2511(1)(c) and (d), and in violation of corresponding provisionsof Pennsylvania law, 18 Pa. Cons. Stat. Ann. § 5725 (West 1983 &Supp. 1999).

Respondents sought summary judgment, arguing that application of Title III(and the Pennsylvania electronic eavesdropping statute) to their actionswould violate the First Amendment. They asserted that, where a private conversationis illegally intercepted or recorded through electronic eavesdropping devices,third parties have a constitutional right to disclose the contents of thatconversation if they were not responsible for the initial interception andthe conversation is deemed to involve matters of public significance. App.,infra, 65a; see also id. at 74a. According to respondents, statutes that,like Title III, impose liability for such disclosures are subject to strictscrutiny and are invalid under the First Amendment as applied here. 65a.

The district court denied the motion, holding, inter alia, that the applicationof Title III to respondents does not violate the First Amendment. App.,infra, 65a-67a, 74a. The district court later certified the First Amendmentissue for interlocutory appeal under 28 U.S.C. 1292(b), App., infra, 75a-76a,and respondents filed a petition for interlocutory review, id. at 5a.

3. Following oral argument on respondents' interlocutory appeal, the courtof appeals notified the Attorney General that the constitutionality of theapplication of 18 U.S.C. 2511(1)(c) and (d) to the facts of this case wasat issue and invited the United States to present its views. App., infra,77a-79a; see 28 U.S.C. 2403(a).2 The United States intervened and fileda brief to defend those provisions. App., infra, 5a.

A divided panel of the court of appeals reversed. App., infra, 1a-58a. Thecourt stated: "At issue is 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 agreed with the United States that 18 U.S.C.2511(1)(c) and (d), and the corresponding provisions of Pennsylvania law,are subject to intermediate rather than strict scrutiny. App., infra, 17a-28a.3The court explained that, to the extent those provisions are designed toreinforce the underlying prohibition on unauthorized interceptions, they"are properly treated as content neutral." Id. at 28a. The court,concluded, however, that those provisions do not satisfy intermediate scrutinywhen applied to "the use or disclosure of illegally intercepted informationwhere there is no allegation that the defendants participated in or encouragedth[e] interception." Id. at 42a.

The court of appeals rejected the government's contention that Title III'sbar on the use and dissemination of illegally intercepted conversationsis necessary to diminish the demand for such materials. App., infra, 33a-36a."The connection between prohibiting third parties from using or disclosing"such communications and "preventing the initial interception,"the court of appeals stated, was too "indirect." Id. at 33a. Thegovernment's interest in protecting privacy and ensuring public confidence,the court of appeals found, "can be reached by enforcement of existingprovisions against the responsible parties rather than by imposing damageson these defendants." Id. at 35a. Finally, the court expressed concernthat the media might be deterred from publishing material not obtained inviolation of Title III by the possibility of liability where the information'sorigin is unclear. Id. at 36a.

Judge Pollak (Senior D.J., sitting by designation) dissented. App., infra,42a-58a. Judge Pollak agreed with the majority's conclusion that intermediatescrutiny is appropriate, but he "part[ed] company" with the majorityon the proper application of that standard to Title III. Id. at 47a (Pollak,J., dissenting). He explained: "Unless disclosure is prohibited, therewill be an incentive for illegal interceptions; and unless disclosure isprohibited, the damage caused by an unlawful interception will be compounded.It is not enough to prohibit disclosure only by those who conduct the unlawfuleavesdropping." Id. at 50a-51a (quoting Boehner v. McDermott, 191 F.3d463, 470 (D.C. Cir. 1999)). Judge Pollak concluded that the "FirstAmendment values on which [respondents] take their stand are countered byprivacy values sought to be advanced by Congress and the Pennsylvania GeneralAssembly that are of comparable-indeed kindred-dimension." App., infra,58a.

The United States and the plaintiffs filed petitions for rehearing en banc.The court denied rehearing en banc by a 6-5 vote; Judges Greenberg, Scirica,Nygaard, Alito, and Rendell would have granted rehearing en banc. App.,infra, 82a-83a.


The court of appeals has invalidated, as contrary to the First Amendment,a significant application of Title III's "comprehensive scheme,"Gelbard v. United States, 408 U.S. 41, 46 (1972), for protecting the privacyof, and ensuring public confidence in the facilities used for, wire, oral,and electronic communications. Under 18 U.S.C. 2511(1)(c) and (d), it isunlawful for any person to use or disclose the contents of a communicationintercepted in violation of Title III, if that person knows or has reasonto know that the communication was intercepted unlawfully. The court ofappeals held those provisions unconstitutional as applied to anyone whodid not participate in or encourage the initial illegal interception ifthe intercepted communication relates to a matter of public significance.App., infra, 37a, 42a.

That conclusion is wrong. It is also inconsistent with the decision in Boehnerv. McDermott, 191 F.3d 463 (D.C. Cir. 1999), which rejected an almost indistinguishableconstitutional challenge. The Third Circuit's decision here, moreover, callsinto question the constitutionality of numerous state statutes that containprohibitions like those contained in Title III. And it undermines the comprehensivescheme Congress established to ensure public confidence in the securityof private conversations. This Court's review is therefore warranted.4

1. The fundamental purpose of Title III is to protect the privacy of wire,oral, and electronic communications. Title III's restriction on the useof illegally intercepted communications, contained in 18 U.S.C. 2511(1)(c)and (d), furthers that legislative goal in at least two ways. First, itreinforces Title III's underlying prohibition on electronic surveillance,18 U.S.C. 2511(1)(a). Because no one can lawfully disclose or otherwiseuse a communication he knows to be the product of illegal wiretapping, therecan be no "market" for illegally intercepted communications. TitleIII thus reduces the incentive to engage in unlawful wiretapping (and otherprohibited forms of electronic surveillance) in the first instance. SeeBoehner, 191 F.3d at 469-470; Fultz v. Gilliam, 942 F.2d 396, 401 (6th Cir.1991) (18 U.S.C. 2511(1)(c) and (d) "strengthen[s] [Section 2511(1)(a)]by denying the wrongdoer the fruits of his conduct").

Second, when illegal surveillance does take place, the challenged provisionsprotect against the additional injury that occurs when the contents of interceptedcommunications are exploited by third parties. As this Court has observed,an "invasion of privacy is [not] over and done with" when a communicationis intercepted, but instead is compounded when the communication is disclosedor otherwise used without the permission of the parties to the conversation.Gelbard, 408 U.S. at 51-52.

The use-and-disclosure prohibitions of Title III thus offer members of thepublic the assurance that they can speak freely with one another throughprivate means -whether by telephone or in person in the privacy of theirhomes-without having their confidential conversations disclosed or otherwiseexploited by unknown persons. The provisions thus further the fundamentalinterest in "the free exchange of ideas enshrined in the First Amendment."Harte-Hanks Communications, Inc. v. Connaughton, 491 U.S. 657, 686 (1989).

a. As the Third Circuit here and the District of Columbia Circuit in Boehner,supra, both recognized, when Title III's restrictions are applied to thedisclosure of illegally intercepted communications by persons other thanthe individuals who intercepted them, they are subject to intermediate ratherthan strict scrutiny under the First Amendment. App., infra, 28a; Boehner,191 F.3d at 467. Two features of Section 2511(1)(c) and (d) support thatconclusion. First, Title III does not single out speech or other expressiveactivities, but rather establishes a general prohibition on the use of illegallyintercepted communications; that prohibition includes, but is not confinedto, expressive uses like disclosure. Boehner, 191 F.3d at 467-468. See UnitedStates v. O'Brien, 391 U.S. 367 (1968).5 Second, Title III is content-neutral.It does not predicate liability on "the[] content" of the interceptedcommunications, "but instead [on] the process by which they are collected."Lam Lek Chong v. United States DEA, 929 F.2d 729, 733 (D.C. Cir. 1991) (emphasisadded). Where a communication is acquired through illegal electronic surveillance,Title III bars disclosure and other uses, regardless of subject matter orviewpoint.

Title III's use prohibitions thus are not the product of the government's"agreement or disagreement with the message" conveyed. TurnerBroad. Sys., Inc. v. FCC, 512 U.S. 622, 642-643 (1994) (brackets omitted).Nor do they reflect a legislative desire to conceal from the public informationon particular subjects. Instead, because Title III contains "generallyapplicable, content neutral prohibitions on conduct that create incidentalburdens on speech," Boehner, 191 F.3d at 467, it falls squarely withinthe ambit of this Court's intermediate scrutiny precedents. See City ofErie v. Pap's A.M., 120 S. Ct. 1382, 1391 (2000) ("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."); Turner, 512 U.S. at 661 (provisions subjectto intermediate scrutiny where they "do not pose such inherent dangersto free expression, or present such potential for censorship or manipulation,as to justify application of the most exacting level of First Amendmentscrutiny").

Under the intermediate scrutiny framework of O'Brien, a statute's applicationis constitutional if the statute "furthers an important or substantialgovernmental interest; if the governmental interest is unrelated to thesuppression of free expression; and if the incidental restriction on allegedFirst Amendment freedoms is no greater than is essential to the furtheranceof that interest." O'Brien, 391 U.S. at 377; Turner, 512 U.S. at 662.

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