In a decision issued May 21, the Supreme Court elevated the First Amendment over privacy rights, by protecting a radio talk-show host who had broadcast an illegal tape. The decision, Bartnicki v. Vopper, seemed to give the press what it wanted: immunity to publish accurate, newsworthy information, even when it came from a source who broke the law to get it.
But while the vote was 6-3, Justice John Paul Stevens’s opinion was so murky that some experts say it’s only a matter of time before the Supremes go the other way, giving privacy claims the power to censor the press. And if that happens, some fear the government will steal the rhetoric, making it a crime for the media to publish anything the feds choose to classify as a secret.
On the face of it, Bartnicki is an important victory for the press. According to attorney Theodore J. Boutrous Jr., who filed an amicus brief on behalf of The Wall Street Journal, the decision gives journalists “a strong argument that if they have lawfully obtained information and it’s truthful and of public concern, they cannot be punished.”
Says Ken Paulson, executive director of the First Amendment Center, “There’s nothing here that suggests that any news organization needs to do anything different.” As before, the legality of publishing stolen goods is not automatically guaranteed, and journalists can still be punished if they break a law or encourage a source to do so.
But the Bartnicki decision leaves a lot of loopholes, and some describe it as equivocal. “It’s a strange opinion,” said one lawyer with a stake in the case. “It’s kind of hiding the ball. I think they’re concerned about the privacy interests, and they want to be able to limit or narrow this later on. That’s why they don’t show you all their cards.” This source finds it conspicuous that Stevens did not state his standard for review, as is customary when crafting constitutional law. The source guesses that the omission was insisted on by Stephen Breyer and Sandra Day O’Connor, who voted with the majority but voiced reservations in a concurring opinion.
The facts of Bartnicki are not all that compelling. A few years ago, someone illegally taped a conversation between two representatives of a teachers’ union in Pennsylvania. The union reps were negotiating with the local school board, and they’d hit a snag. One rep told the other that if the school board didn’t come around, “We’re gonna have to go to their homes . . . to blow off their front porches.” Before long, the tape was broadcast by talk-show host Frederick Vopper, who ended up getting sued.
What’s the big deal if some union guy has a violent fantasy, someone else gets him on tape, and a third guy broadcasts it for town comment? In principle, this case is about leaks, those unexpected gifts that journalists depend on to help expose public and private corruption. The most notorious leak of all was the Pentagon Papers, a secret study of the Vietnam War that Daniel Ellsberg leaked to The New York Times. In 1971, the Supreme Court gave the Times immunity to publish it, a decision journalists have relied on ever since when publishing info obtained by a third party illegally.
Under the U.S. legal system, some nobody can become a cause célèbre for an entire class of potential defendants. That’s why, on the way to Capitol Hill, Vopper attracted the support of The New York Times, The Washington Post, and the Journal, as well as magazines, TV networks, and wire services, all of whom joined amicus briefs on his behalf. The collective wish was that upon reviewing Vopper’s case, the Supremes would issue a broad rule, granting the press blanket immunity to publish anything as long as it’s true and newsworthy—whether or not criminal behavior is involved.
Publishers aren’t the only ones who think they deserve protection when their sources are thieves and eavesdroppers: In 1975, constitutional scholar Alexander Bickel argued that the press should not be held responsible for judging the morality of its sources. But that was post-Watergate, when Americans wanted a more transparent government and a more powerful press. At the same time, privacy was finding a niche in U.S. social policy, helping protect gay lifestyles and abortion rights. In the last 25 years, “the public has gradually turned its back on [the press] in favor of privacy,” says Paulson. “We don’t have the fever we had in the wake of Watergate.”
And so, instead of seizing Bartnicki as a chance to be media heroes, the Supremes issued a series of conflicting messages: Stevens’s majority opinion, the Breyer and O’Connor concurrence, and an ominous dissent signed by William Rehnquist, Antonin Scalia, and Clarence Thomas.
Experts suggest that Breyer and O’Connor didn’t want to endorse a hard-and-fast rule because it might serve to justify using a high-tech bug to record someone’s pillow talk. “Sooner or later there will be a case that shocks the conscience,” says Paulson, who offers the following hypothetical: In a political campaign, the upstart uses listening devices to pick up the incumbent’s private conversations in his car or his bedroom, finds some newsworthy dirt, and sends the tape anonymously to the local newspaper. While it’s arguable that the media could publish the content of that tape without fear of penalty, Paulson says that, post-Bartnicki, some news companies might get scared and decide that in all cases, “we won’t take anything that’s the fruit of the poisonous tree.”
And if Breyer’s Bartnicki concurrence doesn’t have a chilling effect on the press, consider Rehnquist’s dissent, which argues that the right to privacy should trump the First Amendment no matter what. Gregg Leslie, legal defense director for the Reporters Committee for Freedom of the Press, calls the dissent a Trojan horse, noting that if the dissenters had prevailed, giving individuals the power to suppress free speech, “it would open the floodgates for the government to justify its actions because it was trying to protect people’s privacy.” Under that rationale, privacy would be “not just a shield for individuals, but a sword the government can use to overcome someone’s First Amendment rights.”
Here’s how that might pan out: Last fall, Congress approved a law that would have made it a felony for government officials to disclose any information that was deemed classified. The New York Times editorialized that such a bill could be used to “shield misconduct, block access to historical papers,” and “deny Americans the chance to debate critical national issues.” To his credit, Clinton vetoed the bill. But under Bush, one can imagine renewed support for keeping all government documents under wraps. If a test case makes it to the Supreme Court, Breyer and O’Connor might join the Bartnicki dissenters, resulting in a block of five justices who believe that privacy rights can overpower the press.
“The irony is that the right of privacy was supposed to protect an individual against the government,” says Leslie. “It was never supposed to be something that gave the government more power.”