Bartnicki v. Vopper
532 U.S. 514
121 S.Ct. 1753
149 L.Ed.2d 787
NOTICE: This opinion is subject to formal revision before
publication in the preliminary print of the United States Reports.
Readers are requested to notify the Reporter of Decisions, Supreme
Court of the United States, Washington, D. C. 20543, of any
typographical or other formal errors, in order that corrections may
be made before the preliminary print goes to press.
BARTNICKI et al.
VOPPER(FN*), aka WILLIAMS, et al.
SUPREME COURT OF THE UNITED STATES
Argued December 5, 2000
Decided May 21, 2001
During contentious collective-bargaining negotiations between a
union representing teachers at a Pennsylvania high school and the
local school board, an unidentified person intercepted and recorded
a cell phone conversation between the chief union negotiator and
the union president (hereinafter petitioners). After the parties
accepted a nonbinding arbitration proposal generally favorable to
the teachers, respondent Vopper, a radio commentator, played a tape
of the intercepted conversation on his public affairs talk show in
connection with news reports about the settlement. Petitioners
filed this damages suit under both federal and state wiretapping
laws, alleging, among other things, that their conversation had
been surreptitiously intercepted by an unknown person; that
respondent Yocum, the head of a local organization opposed to the
union's demands, had obtained the tape and intentionally disclosed
it to, inter alios, media representatives; and that they had
repeatedly published the conversation even though they knew or had
reason to know that it had been illegally intercepted. In ruling on
cross-motions for summary judgment, the District Court concluded
that, under the statutory language, an individual violates the
federal Act by intentionally disclosing the contents of an
electronic communication when he or she knows or has reason to know
that the information was obtained through an illegal interception,
even if the individual was not involved in that interception; found
that the question whether the interception was intentional raised a
genuine issue of material fact; and rejected respondents' defense
that they were protected by the First Amendment even if the
disclosures violated the statutes, finding that the statutes were
content-neutral laws of general applicability containing no indicia
of prior restraint or the chilling of free speech. The Third
Circuit accepted an interlocutory appeal, and the United States,
also a petitioner, intervened to defend the federal Act's
constitutionality. Applying intermediate scrutiny, the court found
the statutes invalid because they deterred significantly more
speech than necessary to protect the private interests at stake,
and remanded the case with instructions to enter summary judgment
Held: The First Amendment protects the disclosures made by
respondents in this suit. Pp. 6-20.
(a) Title III of the Omnibus Crime Control and Safe Streets Act of
1968, as amended, generally prohibits the interception of wire,
electronic, and oral communications. Title 18 U.S.C. 2511(1)(a)
applies to the person who willfully intercepts such communications
and subsection (c) to any person who, knowing or having reason to
know that the communication was obtained through an illegal
interception, willfully discloses its contents. Pp. 6-9.
(b) Because of this suit's procedural posture, the Court accepts
that the interception was unlawful and that respondents had reason
to know that. Accordingly, the disclosures violated the statutes.
In answering the remaining question whether the statutes'
application in such circumstances violates the First Amendment, the
Court accepts respondents' submissions that they played no part in
the illegal interception, that their access to the information was
obtained lawfully, and that the conversations dealt with a matter
of public concern. Pp. 9-10.
(c) Section 2511(1)(c) is a content-neutral law of general
applicability. The statute's purpose is to protect the privacy of
wire, electronic, and oral communications, and it singles out such
communications by virtue of the fact that they were illegally
intercepted-by virtue of the source rather than the subject matter.
Cf. Ward v. Rock Against Racism, 491 U.S. 781, 791. On the other
hand, the prohibition against disclosures is fairly characterized
as a regulation of speech. Pp. 10-12.
(d) In New York Times Co. v. United States, 403 U.S. 713, this
Court upheld the press' right to publish information of great
public concern obtained from documents stolen by a third party. In
so doing, this Court focused on the stolen documents' character and
the consequences of public disclosure, not on the fact that the
documents were stolen. Ibid. It also left open the question
whether, in cases where information has been acquired unlawfully by
a newspaper or by a source, government may punish not only the
unlawful acquisition, but also the ensuing publication. Florida
Star v. B. J. F., 491 U.S. 524, 535, n. 8. The issue here is a
narrower version of that question: Where the publisher has lawfully
obtained information from a source who obtained it unlawfully, may
the government punish the ensuing publication based on the defect
in a chain? The Court's refusal to construe the issue more broadly
is consistent with its repeated refusal to answer categorically
whether the publication of truthful information may ever be
punished consistent with the First Amendment. Accordingly, the
Court considers whether, given the facts here, the interests served
by 2511(1)(c) justify its restrictions on speech. Pp. 12-14.
(e) The first interest identified by the Government-removing an
incentive for parties to intercept private conversations-does not
justify applying 2511(1)(c) to an otherwise innocent disclosure of
public information. The normal method of deterring unlawful conduct
is to punish the person engaging in it. It would be remarkable to
hold that speech by a law-abiding possessor of information can be
suppressed in order to deter conduct by a non-law-abiding third
party. In virtually all 2511(1)(a), (c), or (d) violations, the
interceptor's identity has been known. There is no evidence that
Congress thought that the prohibition against disclosures would
deter illegal interceptions, and no evidence to support the
assumption that the prohibition reduces the number of such
interceptions. Pp. 14-16.
(f) The Government's second interest-minimizing the harm to persons
whose conversations have been illegally intercepted-is considerably
stronger. Privacy of communication is an important interest.
However, in this suit, privacy concerns give way when balanced
against the interest in publishing matters of public importance.
One of the costs associated with participation in public affairs is
an attendant loss of privacy. The profound national commitment to
the principle that debate on public issues should be uninhibited,
robust, and wide open supported this Court's holding in New York
Times Co. v. Sullivan, 376 U.S. 254, that neither factual error nor
defamatory content, nor a combination of the two, sufficed to
remove the First Amendment shield from criticism of official
conduct. Parallel reasoning requires the conclusion that a
stranger's illegal conduct does not suffice to remove the First
Amendment shield from speech about a matter of public concern. Pp.
200 F.3d 109, affirmed.
ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE THIRD CIRCUIT
(FN*). Together with No. 99-1728, United States v. Vopper, aka
Williams, et al., also on certiorari to the same court.
Stevens, J., delivered the opinion of the Court, in which O'Connor,
Kennedy, Souter, Ginsburg, and Breyer, JJ., joined.
Opinion of the Court
Justice Stevens delivered the opinion of the Court.
These cases raise an important question concerning what degree of
protection, if any, the First Amendment provides to speech that
discloses the contents of an illegally intercepted communication.
That question is both novel and narrow. Despite the fact that
federal law has prohibited such disclosures since 1934,[FN1]
is the first time that we have confronted such an issue.
The suit at hand involves the repeated intentional disclosure of an
illegally intercepted cellular telephone conversation about a
public issue. The persons who made the disclosures did not
participate in the interception, but they did know-or at least had
reason to know-that the interception was unlawful. Accordingly,
these cases present a conflict between interests of the highest
order-on the one hand, the interest in the full and free
dissemination of information concerning public issues, and, on the
other hand, the interest in individual privacy and, more
specifically, in fostering private speech. The Framers of the First
Amendment surely did not foresee the advances in science that
produced the conversation, the interception, or the conflict that
gave rise to this action. It is therefore not surprising that
Circuit judges, as well as the Members of this Court, have come to
differing conclusions about the First Amendment's application to
this issue. Nevertheless, having considered the interests at stake,
we are firmly convinced that the disclosures made by respondents in
this suit are protected by the First Amendment.
During 1992 and most of 1993, the Pennsylvania State Education
Association, a union representing the teachers at the Wyoming
Valley West High School, engaged in collective-bargaining
negotiations with the school board. Petitioner Kane, then the
president of the local union, testified that the negotiations were
" 'contentious' " and received "a lot of media attention." App. 97,
92. In May 1993, petitioner Bartnicki, who was acting as the
union's "chief negotiator," used the cellular phone in her car to
call Kane and engage in a lengthy conversation about the status of
the negotiations. An unidentified person intercepted and recorded
In their conversation, Kane and Bartnicki discussed the timing of a
proposed strike, id., at 41-45, difficulties created by public
comment on the negotiations, id., at 46, and the need for a
dramatic response to the board's intransigence. At one point, Kane
said: " 'If they're not gonna move for three percent, we're gonna
have to go to their, their homes . . . To blow off their front
porches, we'll have to do some work on some of those guys.
(PAUSES). Really, uh, really and truthfully because this is, you
know, this is bad news. (UNDECIPHERABLE).' " Ibid.
In the early fall of 1993, the parties accepted a non-binding
arbitration proposal that was generally favorable to the teachers.
In connection with news reports about the settlement, respondent
Vopper, a radio commentator who had been critical of the union in
the past, played a tape of the intercepted conversation on his
public affairs talk show. Another station also broadcast the tape,
and local newspapers published its contents. After filing suit
against Vopper and other representatives of the media, Bartnicki
and Kane (hereinafter petitioners) learned through discovery that
Vopper had obtained the tape from Jack Yocum, the head of a local
taxpayers' organization that had opposed the union's demands
throughout the negotiations. Yocum, who was added as a defendant,
testified that he had found the tape in his mailbox shortly after
the interception and recognized the voices of Bartnicki and Kane.
Yocum played the tape for some members of the school board, and
later delivered the tape itself to Vopper.
In their amended complaint, petitioners alleged that their
telephone conversation had been surreptitiously intercepted by an
unknown person using an electronic device, that Yocum had obtained
a tape of that conversation, and that he intentionally disclosed it
to Vopper, as well as other individuals and media representatives.
Thereafter, Vopper and other members of the media repeatedly
published the contents of that conversation. The amended complaint
alleged that each of the defendants "knew or had reason to know"
that the recording of the private telephone conversation had been
obtained by means of an illegal interception. Relying on both
federal and Pennsylvania statutory provisions, petitioners sought
actual damages, statutory damages, punitive damages, and attorney's
fees and costs.[FN2]
After the parties completed their discovery, they filed
cross-motions for summary judgment. Respondents contended that they
had not violated the statute because (a) they had nothing to do
with the interception, and (b) in any event, their actions were not
unlawful since the conversation might have been intercepted
inadvertently. Moreover, even if they had violated the statute by
disclosing the intercepted conversation, respondents argued, those
disclosures were protected by the First Amendment. The District
Court rejected the first statutory argument because, under the
plain statutory language, an individual violates the federal Act by
intentionally disclosing the contents of an electronic
communication when he or she "know[s] or ha[s] reason to know that
the information was obtained" through an illegal interception.[FN3]
App. to Pet. for Cert. in No. 99-1687, pp. 53a-54a. Accordingly,
actual involvement in the illegal interception is not necessary in
order to establish a violation of that statute. With respect to the
second statutory argument, the District Court agreed that
petitioners had to prove that the interception in question was
but concluded that the text of the interception
raised a genuine issue of material fact with respect to intent.
That issue of fact was also the basis for the District Court's
denial of petitioners' motion. Finally, the District Court rejected
respondents' First Amendment defense because the statutes were
content-neutral laws of general applicability that contained "no
indicia of prior restraint or the chilling of free speech." Id., at
Thereafter, the District Court granted a motion for an
interlocutory appeal, pursuant to 28 U.S.C. 1292(b). It certified
as controlling questions of law: "(1) whether the imposition of
liability on the media Defendants under the [wiretapping statutes]
solely for broadcasting the newsworthy tape on the Defendant
[Vopper's] radio/public affairs program, when the tape was
illegally intercepted and recorded by unknown persons who were not
agents of [the] Defendants, violates the First Amendment; and (2)
whether imposition of liability under the aforesaid [wiretapping]
statutes on Defendant Jack Yocum solely for providing the
anonymously intercepted and recorded tape to the media Defendants
violates the First Amendment." App. to Pet. for Cert. in No.
99-1728, p. 76a. The Court of Appeals accepted the appeal, and the
United States, also a petitioner, intervened pursuant to 28 U.S.C.
2403 in order to defend the constitutionality of the federal
All three members of the panel agreed with petitioners and the
Government that the federal and Pennsylvania wiretapping statutes
are "content neutral" and therefore subject to "intermediate
scrutiny." 200 F.3d 109, 121 (CA3 1999). Applying that standard,
the majority concluded that the statutes were invalid because they
deterred significantly more speech than necessary to protect the
privacy interests at stake. The court remanded the case with
instructions to enter summary judgment for respondents. In dissent,
Senior Judge Pollak expressed the view that the prohibition against
disclosures was necessary in order to remove the incentive for
illegal interceptions and to preclude compounding the harm caused
by such interceptions through wider dissemination. In so doing, he
agreed with the majority opinion in a similar case decided by the
Court of Appeals for the District of Columbia, Boehner v.
McDermott, 191 F.3d 463 (1999). See also Peavy v. WFAA-TV, Inc.,
221 F.3d 158 (CA5 2000).[FN5]
We granted certiorari to resolve the
conflict. 530 U.S. 1260 (2000).
As we pointed out in Berger v. New York, 388 U.S. 41, 45-49 (1967),
sophisticated (and not so sophisticated) methods of eavesdropping
on oral conversations and intercepting telephone calls have been
practiced for decades, primarily by law enforcement
) In Berger, we held that New York's broadly
written statute authorizing the police to conduct wiretaps violated
the Fourth Amendment. Largely in response to that decision, and to
our holding in Katz v. United States, 389 U.S. 347 (1967), that the
attachment of a listening and recording device to the outside of a
telephone booth constituted a search, "Congress undertook to draft
comprehensive legislation both authorizing the use of evidence
obtained by electronic surveillance on specified conditions, and
prohibiting its use otherwise. S. Rep. No. 1097, 90th Cong., 2d
Sess., 66 (1968)." Gelbard v. United States, 408 U.S. 41, 78 (1972)
(Rehnquist, J., dissenting). The ultimate result of those efforts
was Title III of the Omnibus Crime Control and Safe Streets Act of
1968, 82 Stat. 211, entitled Wiretapping and Electronic
One of the stated purposes of that title was "to protect
effectively the privacy of wire and oral communications." Ibid. In
addition to authorizing and regulating electronic surveillance for
law enforcement purposes, Title III also regulated private conduct.
One part of those regulations, 2511(1), defined five offenses
punishable by a fine of not more than $10,000, by imprisonment for
not more than five years, or by both. Subsection (a) applied to any
person who "willfully intercepts . . . any wire or oral
communication." Subsection (b) applied to the intentional use of
devices designed to intercept oral conversations; subsection (d)
applied to the use of the contents of illegally intercepted wire or
oral communications; and subsection (e) prohibited the unauthorized
disclosure of the contents of interceptions that were authorized
for law enforcement purposes. Subsection (c), the original version
of the provision most directly at issue in this case, applied to
any person who "willfully discloses, or endeavors to disclose, to
any other person the contents of any wire or oral communication,
knowing or having reason to know that the information was obtained
through the interception of a wire or oral communication in
violation of this subsection." The oral communications protected by
the Act were only those "uttered by a person exhibiting an
expectation that such communication is not subject to interception
under circumstances justifying such expectation." 18 U.S.C.
As enacted in 1968, Title III did not apply to the monitoring of
radio transmissions. In the Electronic Communications Privacy Act
of 1986, 100 Stat. 1848, however, Congress enlarged the coverage of
Title III to prohibit the interception of "electronic" as well as
oral and wire communications. By reason of that amendment, as well
as a 1994 amendment which applied to cordless telephone
communications, 108 Stat. 4279, Title III now applies to the
interception of conversations over both cellular and cordless
) Although a lesser criminal penalty may apply to the
interception of such transmissions, the same civil remedies are
available whether the communication was "oral," "wire," or
"electronic," as defined by 18 U.S.C. 2510 (1994 ed. and Supp.
The constitutional question before us concerns the validity of the
statutes as applied to the specific facts of this case. Because of
the procedural posture of the case, it is appropriate to make
certain important assumptions about those facts. We accept
petitioners' submission that the interception was intentional, and
therefore unlawful, and that, at a minimum, respondents "had reason
to know" that it was unlawful. Accordingly, the disclosure of the
contents of the intercepted conversation by Yocum to school board
members and to representatives of the media, as well as the
subsequent disclosures by the media defendants to the public,
violated the federal and state statutes. Under the provisions of
the federal statute, as well as its Pennsylvania analog,
petitioners are thus entitled to recover damages from each of the
respondents. The only question is whether the application of these
statutes in such circumstances violates the First
In answering that question, we accept respondents' submission on
three factual matters that serve to distinguish most of the cases
that have arisen under 2511. First, respondents played no part in
the illegal interception. Rather, they found out about the
interception only after it occurred, and in fact never learned the
identity of the person or persons who made the interception.
Second, their access to the information on the tapes was obtained
lawfully, even though the information itself was intercepted
unlawfully by someone else. Cf. Florida Star v. B. J. F., 491 U.S.
524, 536 (1989) ("Even assuming the Constitution permitted a State
to proscribe receipt of information, Florida has not taken this
step"). Third, the subject matter of the conversation was a matter
of public concern. If the statements about the labor negotiations
had been made in a public arena-during a bargaining session, for
example-they would have been newsworthy. This would also be true if
a third party had inadvertently overheard Bartnicki making the same
statements to Kane when the two thought they were alone.
We agree with petitioners that 2511(1)(c), as well as its
Pennsylvania analog, is in fact a content-neutral law of general
applicability. "Deciding whether a particular regulation is content
based or content neutral is not always a simple task. . . . As a
general rule, laws that by their terms distinguish favored speech
from disfavored speech on the basis of the ideas or views expressed
are content based." Turner Broadcasting System, Inc. v. FCC, 512
U.S. 622, 642-643 (1994). In determining whether a regulation is
content based or content neutral, we look to the purpose behind the
regulation; typically, "[g]overnment regulation of expressive
activity is content neutral so long as it is 'justified without
reference to the content of the regulated speech.' " Ward v. Rock
Against Racism, 491 U.S. 781, 791 (1989).[FN9]
In this case, the basic purpose of the statute at issue is to
"protec[t] the privacy of wire[, electronic,] and oral
communications." S. Rep. No. 1097, 90th Cong., 2d Sess., 66 (1968).
The statute does not distinguish based on the content of the
intercepted conversations, nor is it justified by reference to the
content of those conversations. Rather, the communications at issue
are singled out by virtue of the fact that they were illegally
intercepted-by virtue of the source, rather than the subject
On the other hand, the naked prohibition against disclosures is
fairly characterized as a regulation of pure speech. Unlike the
prohibition against the "use" of the contents of an illegal
interception in 2511(1)(d),[FN10]
subsection (c) is not a
regulation of conduct. It is true that the delivery of a tape
recording might be regarded as conduct, but given that the purpose
of such a delivery is to provide the recipient with the text of
recorded statements, it is like the delivery of a handbill or a
pamphlet, and as such, it is the kind of "speech" that the First
) As the majority below put it, "[i]f the
acts of 'disclosing' and 'publishing' information do not constitute
speech, it is hard to imagine what does fall within that category,
as distinct from the category of expressive conduct." 200 F.3d, at
As a general matter, "state action to punish the publication of
truthful information seldom can satisfy constitutional standards."
Smith v. Daily Mail Publishing Co., 443 U.S. 97, 102 (1979). More
specifically, this Court has repeatedly held that "if a newspaper
lawfully obtains truthful information about a matter of public
significance then state officials may not constitutionally punish
publication of the information, absent a need . . . of the highest
order." Id., at 103; see also Florida Star v. B. J. F., 491 U.S.
524 (1989); Landmark Communications, Inc. v. Virginia, 435 U.S. 829
Accordingly, in New York Times Co. v. United States, 403 U.S. 713
(1971) (per curiam), the Court upheld the right of the press to
publish information of great public concern obtained from documents
stolen by a third party. In so doing, that decision resolved a
conflict between the basic rule against prior restraints on
publication and the interest in preserving the secrecy of
information that, if disclosed, might seriously impair the security
of the Nation. In resolving that conflict, the attention of every
Member of this Court was focused on the character of the stolen
documents' contents and the consequences of public disclosure.
Although the undisputed fact that the newspaper intended to publish
information obtained from stolen documents was noted in Justice
Harlan's dissent, id., at 754, neither the majority nor the
dissenters placed any weight on that fact.
However, New York Times v. United States raised, but did not
resolve the question "whether, in cases where information has been
acquired unlawfully by a newspaper or by a source, government may
ever punish not only the unlawful acquisition, but the ensuing
publication as well."[FN12]
Florida Star, 491 U.S., at 535, n. 8.
The question here, however, is a narrower version of that
still-open question. Simply put, the issue here is this: "Where the
punished publisher of information has obtained the information in
question in a manner lawful in itself but from a source who has
obtained it unlawfully, may the government punish the ensuing
publication of that information based on the defect in a chain?"
Boehner, 191 F.3d, at 484-485 (Sentelle, J., dissenting).
Our refusal to construe the issue presented more broadly is
consistent with this Court's repeated refusal to answer
categorically whether truthful publication may ever be punished
consistent with the First Amendment. Rather, "[o]ur cases have
carefully eschewed reaching this ultimate question, mindful that
the future may bring scenarios which prudence counsels our not
resolving anticipatorily. . . . We continue to believe that the
sensitivity and significance of the interests presented in clashes
between [the] First Amendment and privacy rights counsel relying on
limited principles that sweep no more broadly than the appropriate
context of the instant case." Florida Star, 491 U.S., at
See also Landmark Communications, 435 U.S., at 838. Accordingly, we
consider whether, given the facts of this case, the interests
served by 2511(1)(c) can justify its restrictions on speech.
The Government identifies two interests served by the
statute-first, the interest in removing an incentive for parties to
intercept private conversations, and second, the interest in
minimizing the harm to persons whose conversations have been
illegally intercepted. We assume that those interests adequately
justify the prohibition in 2511(1)(d) against the interceptor's own
use of information that he or she acquired by violating 2511(1)(a),
but it by no means follows that punishing disclosures of lawfully
obtained information of public interest by one not involved in the
initial illegality is an acceptable means of serving those
The normal method of deterring unlawful conduct is to impose an
appropriate punishment on the person who engages in it. If the
sanctions that presently attach to a violation of 2511(1)(a) do not
provide sufficient deterrence, perhaps those sanctions should be
made more severe. But it would be quite remarkable to hold that
speech by a law-abiding possessor of information can be suppressed
in order to deter conduct by a non-law-abiding third party.
Although there are some rare occasions in which a law suppressing
one party's speech may be justified by an interest in deterring
criminal conduct by another, see, e.g., New York v. Ferber, 458
U.S. 747 (1982),[FN13]
this is not such a case.
With only a handful of exceptions, the violations of 2511(1)(a)
that have been described in litigated cases have been motivated by
either financial gain or domestic disputes.[FN14]
In virtually all
of those cases, the identity of the person or persons intercepting
the communication has been known.[FN15]
Moreover, petitioners cite
no evidence that Congress viewed the prohibition against
disclosures as a response to the difficulty of identifying persons
making improper use of scanners and other surveillance devices and
accordingly of deterring such conduct,[FN16]
and there is no
empirical evidence to support the assumption that the prohibition
against disclosures reduces the number of illegal
Although this case demonstrates that there may be an occasional
situation in which an anonymous scanner will risk criminal
prosecution by passing on information without any expectation of
financial reward or public praise, surely this is the exceptional
case. Moreover, there is no basis for assuming that imposing
sanctions upon respondents will deter the unidentified scanner from
continuing to engage in surreptitious interceptions. Unusual cases
fall far short of a showing that there is a "need of the highest
order" for a rule supplementing the traditional means of deterring
antisocial conduct. The justification for any such novel burden on
expression must be "far stronger than mere speculation about
serious harms." United States v. Treasury Employees, 513 U.S. 454,
Accordingly, the Government's first suggested
justification for applying 2511(1)(c) to an otherwise innocent
disclosure of public information is plainly
The Government's second argument, however, is considerably
stronger. Privacy of communication is an important interest, Harper
& Row, Publishers, Inc. v. Nation Enterprises, 471 U.S. 539,
and Title III's restrictions are intended to
protect that interest, thereby "encouraging the uninhibited
exchange of ideas and information among private parties . . . ."
Brief for United States 27. Moreover, the fear of public disclosure
of private conversations might well have a chilling effect on
"In a democratic society privacy of communication is essential if
citizens are to think and act creatively and constructively. Fear
or suspicion that one's speech is being monitored by a stranger,
even without the reality of such activity, can have a seriously
inhibiting effect upon the willingness to voice critical and
constructive ideas." President's Commission on Law Enforcement and
Administration of Justice, The Challenge of Crime in a Free Society
202 (1967). Accordingly, it seems to us that there are important
interests to be considered on both sides of the constitutional
calculus. In considering that balance, we acknowledge that some
intrusions on privacy are more offensive than others, and that the
disclosure of the contents of a private conversation can be an even
greater intrusion on privacy than the interception itself. As a
result, there is a valid independent justification for prohibiting
such disclosures by persons who lawfully obtained access to the
contents of an illegally intercepted message, even if that
prohibition does not play a significant role in preventing such
interceptions from occurring in the first place.
We need not decide whether that interest is strong enough to
justify the application of 2511(c) to disclosures of trade secrets
or domestic gossip or other information of purely private concern.
Cf. Time, Inc. v. Hill, 385 U.S. 374, 387-388 (1967) (reserving the
question whether truthful publication of private matters unrelated
to public affairs can be constitutionally proscribed). In other
words, the outcome of the case does not turn on whether 2511(1)(c)
may be enforced with respect to most violations of the statute
without offending the First Amendment. The enforcement of that
provision in this case, however, implicates the core purposes of
the First Amendment because it imposes sanctions on the publication
of truthful information of public concern.
In this case, privacy concerns give way when balanced against the
interest in publishing matters of public importance. As Warren and
Brandeis stated in their classic law review article: "The right of
privacy does not prohibit any publication of matter which is of
public or general interest." The Right to Privacy, 4 Harv. L. Rev.
193, 214 (1890). One of the costs associated with participation in
public affairs is an attendant loss of privacy. "Exposure of the
self to others in varying degrees is a concomitant of life in a
civilized community. The risk of this exposure is an essential
incident of life in a society which places a primary value on
freedom of speech and of press. 'Freedom of discussion, if it would
fulfill its historic function in this nation, must embrace all
issues about which information is needed or appropriate to enable
the members of society to cope with the exigencies of their
period.' " Time, Inc. v. Hill, 385 U.S., at 388 (quoting Thornhill
v. Alabama, 310 U.S. 88, 102 (1940)).[FN21]
Our opinion in New York Times Co. v. Sullivan, 376 U.S. 254 (1964),
reviewed many of the decisions that settled the "general
proposition that freedom of expression upon public questions is
secured by the First Amendment." Id., at 269; see Roth v. United
States, 354 U.S. 476, 484 (1957); Bridges v. California, 314 U.S.
252, 270 (1941); Stromberg v. California, 283 U.S. 359, 369 (1931).
Those cases all relied on our "profound national commitment to the
principle that debate on public issues should be uninhibited,
robust and wide-open," New York Times, 376 U.S., at 270; see
Terminiello v. Chicago, 337 U.S. 1, 4 (1949); De Jonge v. Oregon,
299 U.S. 353, 365 (1937); Whitney v. California, 274 U.S. 357,
375-376 (1927) (Brandeis, J., concurring); see also Roth, 354 U.S.,
at 484; Stromberg, 283 U.S., at 369; Bridges, 314 U.S., at 270. It
was the overriding importance of that commitment that supported our
holding that neither factual error nor defamatory content, nor a
combination of the two, sufficed to remove the First Amendment
shield from criticism of official conduct. Id., at 273; see also
NAACP v. Button, 371 U.S. 415, 445 (1963); Wood v. Georgia, 370
U.S. 375 (1962); Craig v. Harney, 331 U.S. 367 (1947); Pennekamp v.
Florida, 328 U.S. 331, 342, 343, n. 5, 345 (1946); Bridges, 314
U.S., at 270.
We think it clear that parallel reasoning requires the conclusion
that a stranger's illegal conduct does not suffice to remove the
First Amendment shield from speech about a matter of public
The months of negotiations over the proper level of
compensation for teachers at the Wyoming Valley West High School
were unquestionably a matter of public concern, and respondents
were clearly engaged in debate about that concern. That debate may
be more mundane than the Communist rhetoric that inspired Justice
Brandeis' classic opinion in Whitney v. California, 274 U.S., at
372, but it is no less worthy of constitutional protection.
The judgment is affirmed.
It is so ordered.
Breyer, J., filed a concurring opinion, in which O'Connor, J.,
Rehnquist, C. J., filed a dissenting opinion, in which Scalia and
Thomas, JJ., joined.
. See 48 Stat. 1069, 1103.
. Either actual damages, or "statutory damages of whichever is
the greater of $100 a day for each day of violation or $10,000" may
be recovered under 18 U.S.C. 2520(c)(2); under the Pennsylvania
Act, the amount is the greater of $100 a day or $1,000, but the
plaintiff may also recover punitive damages and reasonable
attorney's fees. 18 Pa. Cons. Stat. 5725(a) (2000).
. Title 18 U.S.C. 2511(1)(c) provides that any person who
"intentionally discloses, or endeavors to disclose, to any other
person the contents of any wire, oral, or electronic communication,
knowing or having reason to know that the information was obtained
through the interception of a wire, oral, or electronic
communication in violation of this subsection; . . . shall be
punished . . . ." The Pennsylvania Act contains a similar
. Title 18 U.S.C. 2511(1)(a) provides: "(1) Except as
otherwise specifically provided in this chapter [2510-2520 (1994
ed. and Supp. V)] any person who- "(a) intentionally intercepts,
endeavors to intercept, or procures any other person to intercept
or endeavor to intercept, any wire, oral, or electronic
communication; . . . shall be punished . . . ."
. In the Boehner case, as in this case, a conversation over a
car cell phone was intercepted, but in that case the defendant knew
both who was responsible for intercepting the conversation and how
they had done it. 191 F.3d, at 465. In the opinion of the majority,
the defendant acted unlawfully in accepting the tape in order to
provide it to the media. Id., at 476. Apparently because the couple
responsible for the interception did not eavesdrop "for purposes of
direct or indirect commercial advantage or private financial gain,"
they were fined only $500. See Department of Justice Press Release,
Apr. 23, 1997. In another similar case involving a claim for
damages under 2511(1)(c), Peavy v. WFAA-TV, Inc., 221 F.3d 158 (CA5
2000), the media defendant in fact participated in the
interceptions at issue.
. In particular, calls placed on cellular and cordless
telephones can be intercepted more easily than those placed on
traditional phones. See Shubert v. Metrophone, Inc., 898 F.2d 401,
404-405 (CA3 1990). Although calls placed on cell and cordless
phones can be easily intercepted, it is not clear how often
intentional interceptions take place. From 1992 through 1997, less
than 100 cases were prosecuted charging violations of 18 U.S.C.
2511. See Statement of James K. Kallstrom, Assistant Director in
Charge of the New York Division of the FBI on February 5, 1997
before the Subcommittee on Telecommunications, Trade, and Consumer
Protection, Committee on Commerce, U.S. House of Representatives
Regarding Cellular Privacy. However, information concerning
techniques and devices for intercepting cell and cordless phone
calls can be found in a number of publications, trade magazines,
and sites on the Internet, see id., at 6, and at one set of
congressional hearings in 1997, a scanner, purchased off the shelf
and minimally modified, was used to intercept phone calls of
Members of Congress.
. See, e.g., Nix v. O'Malley, 160 F.3d 343, 346 (CA6 1998);
McKamey v. Roach, 55 F.3d 1236, 1240 (CA6 1995).
. In answering this question, we draw no distinction between
the media respondents and Yocum. See, e.g., New York Times Co. v.
Sullivan, 376 U.S. 254, 265-266 (1964); First Nat. Bank of Boston
v. Bellotti, 435 U.S. 765, 777 (1978).
. "But while a content-based purpose may be sufficient in
certain circumstances to show that a regulation is content based,
it is not necessary to such a showing in all cases. . . . Nor will
the mere assertion of a content-neutral purpose be enough to save a
law which, on its face, discriminates based on content." Turner
Broadcasting System, Inc. v. FCC, 512 U.S. 622, 642 (1994).
. The Solicitor General has catalogued some of the cases that
fall under subsection (d): "it is unlawful for a company to use an
illegally intercepted communication about a business rival in order
to create a competing product; it is unlawful for an investor to
use illegally intercepted communications in trading in securities;
it is unlawful for a union to use an illegally intercepted
communication about management (or vice versa) to prepare strategy
for contract negotiations; it is unlawful for a supervisor to use
information in an illegally recorded conversation to discipline a
subordinate; and it is unlawful for a blackmailer to use an
illegally intercepted communication for purposes of extortion. See,
e.g., 1968 Senate Report 67 (corporate and labor-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 illegally intercepted communications for important and
socially valuable purposes. See In re Grand Jury, 111 F.3d 1066,
1077-1079 (3d Cir. 1997)." Brief for United States 24.
. Put another way, what gave rise to statutory liability in
this case was the information communicated on the tapes. See
Boehner v. McDermott, 191 F.3d 463, 484 (CADC 1999) (Sentelle, J.,
dissenting) ("What . . . is being punished . . . here is not
conduct dependent upon the nature or origin of the tapes; it is
speech dependent on the nature of the contents").
. That question was subsequently reserved in Landmark
Communications, Inc. v. Virginia, 435 U.S. 829, 837 (1978).
. In cases relying on such a rationale, moreover, the speech
at issue is considered of minimal value. Osborne v. Ohio, 495 U.S.
103 (1990); New York v. Ferber, 458 U.S., at 762 ("The value of
permitting live performances and photographic reproductions of
children engaged in lewd sexual conduct is exceedingly modest, if
not de minimis"). The Government also points to two other areas of
the law-namely, mail theft and stolen property-in which a ban on
the receipt or possession of an item is used to deter some primary
illegality. Brief for United States 14; see also post, at 11.
Neither of those examples, though, involve prohibitions on speech.
As such, they are not relevant to a First Amendment analysis.
. The media respondents have included a list of 143 cases
under 2511(1)(a) and 63 cases under 2511(1)(c) and (d)-which must
also involve violations of subsection (a)-in an appendix to their
brief. The Reply Brief filed by the United States contains an
appendix describing each of the cases in the latter group.
. In only 5 of the 206 cases listed in the appendices, see n.
14, supra, n. 17, infra, was the identity of the interceptor wholly
. The legislative history of the 1968 Act indicates that
Congress' concern focused on private surveillance "in domestic
relations and industrial espionage situations." S. Rep. No. 1097,
90th Cong., 2d Sess., 225 (1968). Similarly, in connection with the
enactment of the 1986 amendment, one senator referred to the
interest in protecting private communications from "a corporate
spy, a police officer without probable cause, or just a plain
snoop." 131 Cong. Rec. 24366 (1985) (statement of Sen.
. The dissent argues that we have not given proper respect to
"congressional findings" or to " 'Congress' factual predictions.' "
Post, at 10. But the relevant factual foundation is not to be found
in the legislative record. Moreover, the dissent does not argue
that Congress did provide empirical evidence in support of its
assumptions, nor, for that matter, does it take real issue with the
fact that in the vast majority of cases involving illegal
interceptions, the identity of the person or persons responsible
for the interceptions is known. Instead, the dissent advances a
minor disagreement with our numbers, stating that nine cases
"involved an unknown or unproved eavesdropper." Post, at 13-14, n.
9 (emphasis added). The dissent includes in that number cases in
which the identity of the interceptor, though suspected, was not
"proved" because the identity of the interceptor was not at issue
or the evidence was insufficient. In any event, whether there are 5
cases or 9 involving anonymous interceptors out of the 206 cases
under 2511, in most of the cases involving illegal interceptions,
the identity of the interceptor is no mystery. If, as the
proponents of the dry up the market theory would have it, it is
difficult to identify the persons responsible for illegal
interceptions (and thus necessary to prohibit disclosure by third
parties with no connection to, or responsibility for, the initial
illegality), one would expect to see far more cases in which the
identity of the interceptor was unknown (and, concomitantly, far
fewer in which the interceptor remained anonymous). Thus, not only
is there a dearth of evidence in the legislative record to support
the dry up the market theory, but what postenactment evidence is
available cuts against it.
. Indeed, even the burden of justifying restrictions on
commercial speech requires more than "mere speculation or
conjecture." Greater New Orleans Broadcasting Assn., Inc. v. United
States, 527 U.S. 173, 188 (1999).
. Our holding, of course, does not apply to punishing parties
for obtaining the relevant information unlawfully. "It would be
frivolous to assert-and no one does in these cases-that the First
Amendment, in the interest of securing news or otherwise, confers a
license on either the reporter or his news sources to violate valid
criminal laws. Although stealing documents or private wiretapping
could provide newsworthy information, neither reporter nor source
is immune from conviction for such conduct, whatever the impact on
the flow of news." Branzburg v. Hayes, 408 U.S. 665, 691
. " 'The essential thrust of the First Amendment is to
prohibit improper restraints on the voluntary public expression of
ideas; it shields the man who wants to 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
affirmative aspect.' " Harper & Row, Publishers, Inc. v. Nation
Enterprises, 471 U.S., at 559 (quoting Estate of Hemingway v.
Random House, Inc., 23 N. Y. 2d 341, 348, 244 N. E. 2d 250, 255
(Ct. App. 1968)).
. Moreover, "our decisions establish that absent exceptional
circumstances, reputational interests alone cannot justify the
proscription of truthful speech." Butterworth v. Smith, 494 U.S.
624, 634 (1990).
. See, e.g., Florida Star v. B. J. F., 491 U.S. 524, 535
(1989) (acknowledging "the 'timidity and self-censorship' which may
result from allowing the media to be punished for publishing
Justice Breyer, with whom Justice O'Connor joins, concurring.
I join the Court's opinion because I agree with its "narrow"
holding, see ante, at 1-2, limited to the special circumstances
present here: (1) the radio broadcasters acted lawfully (up to the
time of final public disclosure); and (2) the information
publicized involved a matter of unusual public concern, namely a
threat of potential physical harm to others. I write separately to
explain why, in my view, the Court's holding does not imply a
significantly broader constitutional immunity for the media.
As the Court recognizes, the question before us-a question of
immunity from statutorily imposed civil liability-implicates
competing constitutional concerns. Ante, at 17-18. The statutes
directly interfere with free expression in that they prevent the
media from publishing information. At the same time, they help to
protect personal privacy-an interest here that includes not only
the "right to be let alone," Olmstead v. United States, 277 U.S.
438, 478 (1928) (Brandeis, J., dissenting), but also "the interest
. . . in fostering private speech," ante, at 2. Given these
competing interests "on both sides of the equation, the key
question becomes one of proper fit." Turner Broadcasting System,
Inc. v. FCC, 520 U.S. 180, 227 (1997) (Breyer, J., concurring in
part). See also Nixon v. Shrink Missouri Government PAC, 528 U.S.
377, 402 (2000) (Breyer, J., concurring).
I would ask whether the statutes strike a reasonable balance
between their speech-restricting and speech-enhancing consequences.
Or do they instead impose restrictions on speech that are
disproportionate when measured against their corresponding privacy
and speech-related benefits, taking into account the kind, the
importance, and the extent of these benefits, as well as the need
for the restrictions in order to secure those benefits? What this
Court has called "strict scrutiny"-with its strong presumption
against constitutionality-is normally out of place where, as here,
important competing constitutional interests are implicated. See
ante, at 2 (recognizing "conflict between interests of the highest
order"); ante, at 18 ("important interests to be considered on both
sides of the constitutional calculus"); ibid. ("balanc[ing]" the
interest in privacy "against the interest in publishing matters of
public importance"); ante, at 18-19 (privacy interest outweighed in
The statutory restrictions before us directly enhance private
speech. See Harper & Row, Publishers, Inc. v. Nation
Enterprises, 471 U.S. 539, 559 (1985) (describing " 'freedom not to
speak publicly' " (quoting Estate of Hemingway v. Random House,
Inc., 23 N. Y.2d 341, 348, 244 N. E.2d 250, 255 (1968))). The
statutes ensure the privacy of telephone conversations much as a
trespass statute ensures privacy within the home. That assurance of
privacy helps to overcome our natural reluctance to discuss private
matters when we fear that our private conversations may become
public. And the statutory restrictions consequently encourage
conversations that otherwise might not take place.
At the same time, these statutes restrict public speech directly,
deliberately, and of necessity. They include media publication
within their scope not simply as a means, say, to deter
interception, but also as an end. Media dissemination of an
intimate conversation to an entire community will often cause the
speakers serious harm over and above the harm caused by an initial
disclosure to the person who intercepted the phone call. See
Gelbard v. United States, 408 U.S. 41, 51-52 (1972). And the threat
of that widespread dissemination can create a far more powerful
disincentive to speak privately than the comparatively minor threat
of disclosure to an interceptor and perhaps to a handful of others.
Insofar as these statutes protect private communications against
that widespread dissemination, they resemble laws that would award
damages caused through publication of information obtained by theft
from a private bedroom. See generally Warren & Brandeis, The
Right to Privacy, 4 Harv. L. Rev. 193 (1890) (hereinafter Warren
& Brandeis). See also Restatement (Second) of Torts 652D
As a general matter, despite the statutes' direct restrictions on
speech, the Federal Constitution must tolerate laws of this kind
because of the importance of these privacy and speech-related
objectives. See Warren & Brandeis 196 (arguing for state law
protection of the right to privacy). Cf. Katz v. United States, 389
U.S. 347, 350-351 (1967) ("[T]he protection of a person's general
right to privacy-his right to be let alone by other people-is, like
the protection of his property and of his very life, left largely
to the law of the individual States"); ante, at 2 (protecting
privacy and promoting speech are "interests of the highest order").
Rather than broadly forbid this kind of legislative enactment, the
Constitution demands legislative efforts to tailor the laws in
order reasonably to reconcile media freedom with personal,
Nonetheless, looked at more specifically, the statutes, as applied
in these circumstances, do not reasonably reconcile the competing
constitutional objectives. Rather, they disproportionately
interfere with media freedom. For one thing, the broadcasters here
engaged in no unlawful activity other than the ultimate publication
of the information another had previously obtained. They "neither
encouraged nor participated directly or indirectly in the
interception." App. to Pet. for Cert. 33a. See also ante, at 9-10.
No one claims that they ordered, counseled, encouraged, or
otherwise aided or abetted the interception, the later delivery of
the tape by the interceptor to an intermediary, or the tape's still
later delivery by the intermediary to the media. Cf. 18 U.S.C. 2
(criminalizing aiding and abetting any federal offense); 2 W.
LaFave & A. Scott, Substantive Criminal Law 6.6(b)-(c), pp.
128-129 (1986) (describing criminal liability for aiding and
abetting). And, as the Court points out, the statutes do not forbid
the receipt of the tape itself. Ante, at 9. The Court adds that its
holding "does not apply to punishing parties for obtaining the
relevant information unlawfully." Ante, at 17, n. 19 (emphasis
For another thing, the speakers had little or no legitimate
interest in maintaining the privacy of the particular conversation.
That conversation involved a suggestion about "blow[ing] off . . .
front porches" and "do[ing] some work on some of these guys," App.
46, thereby raising a significant concern for the safety of others.
Where publication of private information constitutes a wrongful
act, the law recognizes a privilege allowing the reporting of
threats to public safety. See Restatement (Second) of Torts 595,
Comment g (1977) (general privilege to report that "another intends
to kill or rob or commit some other serious crime against a third
person"); id., 652G (privilege applies to invasion of privacy
tort). Cf. Restatement (Third) of Unfair Competition 40, Comment c
(1995) (trade secret law permits disclosures relevant to public
health or safety, commission of crime or tort, or other matters of
substantial public concern); Lachman v. Sperry-Sun Well Surveying
Co., 457 F.2d 850, 853 (CA10 1972) (nondisclosure agreement not
binding in respect to criminal activity); Tarasoff v. Regents of
Univ. of Cal., 17 Cal. 3d 425, 436, 551 P.2d 334, 343-344 (1976)
(psychiatric privilege not binding in presence of danger to self or
others). Even where the danger may have passed by the time of
publication, that fact cannot legitimize the speaker's earlier
privacy expectation. Nor should editors, who must make a
publication decision quickly, have to determine present or
continued danger before publishing this kind of threat.
Further, the speakers themselves, the president of a teacher's
union and the union's chief negotiator, were "limited public
figures," for they voluntarily engaged in a public controversy.
They thereby subjected themselves to somewhat greater public
scrutiny and had a lesser interest in privacy than an individual
engaged in purely private affairs. See, e.g., ante, at 19
(respondents were engaged in matter of public concern); Wolston v.
Reader's Digest Assn., Inc., 443 U.S. 157, 164 (1979); Hutchinson
v. Proxmire, 443 U.S. 111, 134 (1979); Gertz v. Robert Welch, Inc.,
418 U.S. 323, 351 (1974). See also Warren & Brandeis 215.
This is not to say that the Constitution requires anyone, including
public figures, to give up entirely the right to private
communication, i.e., communication free from telephone taps or
interceptions. But the subject matter of the conversation at issue
here is far removed from that in situations where the media
publicizes truly private matters. See Michaels v. Internet
Entertainment Group, Inc., 5 F. Supp. 2d 823, 841-842 (C.D. Cal.
1998) (broadcast of videotape recording of sexual relations between
famous actress and rock star not a matter of legitimate public
concern); W. Keeton, D. Dobbs, R. Keeton, & D. Owen, Prosser
& Keeton on Law of Torts 117, p. 857 (5th ed. 1984) (stating
that there is little expectation of privacy in mundane facts about
a person's life, but that "portrayal of . . . intimate private
characteristics or conduct" is "quite a different matter"); Warren
& Brandeis 214 (recognizing that in certain matters "the
community has no legitimate concern"). Cf. Time, Inc. v. Firestone,
424 U.S. 448, 454-455 (1976) (despite interest of public, divorce
of wealthy person not a "public controversy"). Cf. also ante, at 18
("[S]ome intrusions on privacy are more offensive than
Thus, in finding a constitutional privilege to publish unlawfully
intercepted conversations of the kind here at issue, the Court does
not create a "public interest" exception that swallows up the
statutes' privacy-protecting general rule. Rather, it finds
constitutional protection for publication of intercepted
information of a special kind. Here, the speakers' legitimate
privacy expectations are unusually low, and the public interest in
defeating those expectations is unusually high. Given these
circumstances, along with the lawful nature of respondents'
behavior, the statutes' enforcement would disproportionately harm
I emphasize the particular circumstances before us because, in my
view, the Constitution permits legislatures to respond flexibly to
the challenges future technology may pose to the individual's
interest in basic personal privacy. Clandestine and pervasive
invasions of privacy, unlike the simple theft of documents from a
bedroom, are genuine possibilities as a result of continuously
advancing technologies. Eavesdropping on ordinary cellular phone
conversations in the street (which many callers seem to tolerate)
is a very different matter from eavesdropping on encrypted cellular
phone conversations or those carried on in the bedroom. But the
technologies that allow the former may come to permit the latter.
And statutes that may seem less important in the former context may
turn out to have greater importance in the latter. Legislatures
also may decide to revisit statutes such as those before us,
creating better tailored provisions designed to encourage, for
example, more effective privacy-protecting technologies.
For these reasons, we should avoid adopting overly broad or rigid
constitutional rules, which would unnecessarily restrict
legislative flexibility. I consequently agree with the Court's
holding that the statutes as applied here violate the Constitution,
but I would not extend that holding beyond these present
Chief Justice Rehnquist, with whom Justice Scalia and Justice
Thomas join, dissenting.
Technology now permits millions of important and confidential
conversations to occur through a vast system of electronic
networks. These advances, however, raise significant privacy
concerns. We are placed in the uncomfortable position of not
knowing who might have access to our personal and business e-mails,
our medical and financial records, or our cordless and cellular
telephone conversations. In an attempt to prevent some of the most
egregious violations of privacy, the United States, the District of
Columbia, and 40 States have enacted laws prohibiting the
intentional interception and knowing disclosure of electronic
The Court holds that all of these statutes
violate the First Amendment insofar as the illegally intercepted
conversation touches upon a matter of "public concern," an
amorphous concept that the Court does not even attempt to define.
But the Court's decision diminishes, rather than enhances, the
purposes of the First Amendment: chilling the speech of the
millions of Americans who rely upon electronic technology to
communicate each day.
Over 30 years ago, with Title III of the Omnibus Crime Control and
Safe Streets Act of 1968, Congress recognized that the
"[t]remendous scientific and technological developments that have
taken place in the last century have made possible today the
widespread use and abuse of electronic surveillance techniques. As
a result of these developments, privacy of communication is
seriously jeopardized by these techniques of surveillance" . No
longer is it possible, in short, for each man to retreat into his
home and be left alone. Every spoken word relating to each man's
personal, marital, religious, political, or commercial concerns can
be intercepted by an unseen auditor and turned against the speaker
to the auditor's advantage." S. Rep. No. 1097, 90th Cong., 2d
Sess., 67 (1968) (hereinafter S. Rep. No. 1097). This concern for
privacy was inseparably bound up with the desire that personal
conversations be frank and uninhibited, not cramped by fears of
clandestine surveillance and purposeful disclosure:
"In a democratic society privacy of communication is essential if
citizens are to think and act creatively and constructively. Fear
or suspicion that one's speech is being monitored by a stranger,
even without the reality of such activity, can have a seriously
inhibiting effect upon the willingness to voice critical and
constructive ideas." President's Commission on Law Enforcement and
Administration of Justice, The Challenge of Crime in a Free Society
202 (1967). To effectuate these important privacy and speech
interests, Congress and the vast majority of States have proscribed
the intentional interception and knowing disclosure of the contents
of electronic communications.
) See, e.g., 18 U.S.C. 2511(1)(c)
(placing restrictions upon "any person who " intentionally
discloses, or endeavors to disclose, to any other person the
contents of any wire, oral, or electronic communication, knowing or
having reason to know that the information was obtained through the
interception of a wire, oral, or electronic communication").
The Court correctly observes that these are "content-neutral law[s]
of general applicability" which serve recognized interests of the
"highest order": "the interest in individual privacy and " in
fostering private speech." Ante, at 10, 2. It nonetheless subjects
these laws to the strict scrutiny normally reserved for
governmental attempts to censor different viewpoints or ideas. See
ante, at 16 (holding that petitioners have not established the
requisite " 'need of the highest order' ") (quoting Smith v. Daily
Mail Publishing Co., 443 U.S. 97, 103 (1979)). There is scant
support, either in precedent or in reason, for the Court's tacit
application of strict scrutiny.
A content-neutral regulation will be sustained if
" 'it furthers an important or substantial governmental interest;
if the governmental interest is unrelated to the suppression of
free expression; and if the incidental restriction on alleged First
Amendment freedoms is no greater than is essential to the
furtherance of that interest.' " Turner Broadcasting System, Inc.
v. FCC, 512 U.S. 622, 662 (1994) (quoting United States v. O'Brien,
391 U.S. 367, 377 (1968)).
Here, Congress and the Pennsylvania Legislature have acted "
'without reference to the content of the regulated speech.' "
Renton v. Playtime Theatres, Inc., 475 U.S. 41, 48 (1986). There is
no intimation that these laws seek "to suppress unpopular ideas or
information or manipulate the public debate" or that they
"distinguish favored speech from disfavored speech on the basis of
the ideas or views expressed." Turner Broadcasting, supra, at 641,
643. The antidisclosure provision is based solely upon the manner
in which the conversation was acquired, not the subject matter of
the conversation or the viewpoints of the speakers. The same
information, if obtained lawfully, could be published with
impunity. Cf. Seattle Times Co. v. Rhinehart, 467 U.S. 20, 34
(1984) (upholding under intermediate scrutiny a protective order on
information acquired during discovery in part because "the party
may disseminate the identical information " as long as the
information is gained through means independent of the court's
processes"). As the concerns motivating strict scrutiny are absent,
these content-neutral restrictions upon speech need pass only
The Court's attempt to avoid these precedents by reliance upon the
Daily Mail string of newspaper cases is unpersuasive. In these
cases, we held that statutes prohibiting the media from publishing
certain truthful information-the name of a rape victim, Florida
Star v. B. J. F., 491 U.S. 524 (1989); Cox Broadcasting Corp. v.
Cohn, 420 U.S. 469 (1975), the confidential proceedings before a
state judicial review commission, Landmark Communications, Inc. v.
Virginia, 435 U.S. 829 (1978), and the name of a juvenile
defendant, Daily Mail, supra; Oklahoma Publishing Co. v. District
Court, Oklahoma Cty., 430 U.S. 308 (1977) (per curiam)-violated the
First Amendment. In so doing, we stated that "if a newspaper
lawfully obtains truthful information about a matter of public
significance then state officials may not constitutionally punish
publication of the information, absent a need to further a state
interest of the highest order." Daily Mail, supra, at 103. Neither
this Daily Mail principle nor any other aspect of these cases,
however, justifies the Court's imposition of strict scrutiny
Each of the laws at issue in the Daily Mail cases regulated the
content or subject matter of speech. This fact alone was enough to
trigger strict scrutiny, see United States v. Playboy Entertainment
Group, Inc., 529 U.S. 803, 813 (2000) ("[A] content-based speech
restriction " can stand only if it satisfies strict scrutiny"), and
suffices to distinguish these antidisclosure provisions. But, as
our synthesis of these cases in Florida Star made clear, three
other unique factors also informed the scope of the Daily Mail
First, the information published by the newspapers had been
lawfully obtained from the government itself.(
information is entrusted to the government, a less drastic means
than punishing truthful publication almost always exists for
guarding against the dissemination of private facts." Florida Star,
supra, at 534. See, e.g., Landmark Communications, supra, at 841,
and n. 12 (noting that the State could have taken steps to protect
the confidentiality of its proceedings, such as holding in contempt
commission members who breached their duty of confidentiality).
Indeed, the State's ability to control the information undermined
the claim that the restriction was necessary, for "[b]y placing the
information in the public domain on official court records, the
State must be presumed to have concluded that the public interest
was thereby being served." Cox Broadcasting, supra, at 495. This
factor has no relevance in the present cases, where we deal with
private conversations that have been intentionally kept out of the
Second, the information in each case was already "publicly
available," and punishing further dissemination would not have
advanced the purported government interests of confidentiality.
Florida Star, supra, at 535. Such is not the case here. These
statutes only prohibit "disclos[ure]," 18 U.S.C. 2511(1)(c); 18 Pa.
Cons. Stat. 5703(2) (2000), and one cannot "disclose" what is
already in the public domain. See Black's Law Dictionary 477 (7th
ed. 1999) (defining "disclosure" as "[t]he act or process of making
known something that was previously unknown; a revelation of
facts"); S. Rep. No. 1097, at 93 ("The disclosure of the contents
of an intercepted communication that had already become 'public
information' or 'common knowledge' would not be prohibited"). These
laws thus do not fall under the axiom that "the interests in
privacy fade when the information involved already appears on the
public record." Cox Broadcasting, supra, at 494-495.
Third, these cases were concerned with "the 'timidity and
self-censorship' which may result from allowing the media to be
punished for publishing certain truthful information." Florida
Star, 491 U.S., at 535. But fear of "timidity and self-censorship"
is a basis for upholding, not striking down, these antidisclosure
provisions: They allow private conversations to transpire without
inhibition. And unlike the statute at issue in Florida Star, which
had no scienter requirement, see id., at 539, these statutes only
address those who knowingly disclose an illegally intercepted
They do not impose a duty to inquire into the
source of the information and one could negligently disclose the
contents of an illegally intercepted communication without
In sum, it is obvious that the Daily Mail cases upon which the
Court relies do not address the question presented here. Our
decisions themselves made this clear: "The Daily Mail principle
does not settle the issue whether, in cases where information has
been acquired unlawfully by a newspaper or by a source, the
government may ever punish not only the unlawful acquisition, but
the ensuing publication as well." Florida Star, supra, at 535, n.
8; see also Daily Mail, 443 U.S., at 105 ("Our holding in this case
is narrow. There is no issue before us of unlawful press
[conduct]"); Landmark Communications, 435 U.S., at 837 ("We are not
here concerned with the possible applicability of the statute to
one who secures the information by illegal means and thereafter
Undaunted, the Court places an inordinate amount of weight upon the
fact that the receipt of an illegally intercepted communication has
not been criminalized. See ante, at 13-17. But this hardly renders
those who knowingly receive and disclose such communications
"law-abiding," ante, at 14, and it certainly does not bring them
under the Daily Mail principle. The transmission of the intercepted
communication from the eavesdropper to the third party is itself
illegal; and where, as here, the third party then knowingly
discloses that communication, another illegal act has been
committed. The third party in this situation cannot be likened to
the reporters in the Daily Mail cases, who lawfully obtained their
information through consensual interviews or public
These laws are content neutral; they only regulate information that
was illegally obtained; they do not restrict republication of what
is already in the public domain; they impose no special burdens
upon the media; they have a scienter requirement to provide fair
warning; and they promote the privacy and free speech of those
using cellular telephones. It is hard to imagine a more narrowly
tailored prohibition of the disclosure of illegally intercepted
communications, and it distorts our precedents to review these
statutes under the often fatal standard of strict scrutiny. These
laws therefore should be upheld if they further a substantial
governmental interest unrelated to the suppression of free speech,
and they do.
Congress and the overwhelming majority of States reasonably have
concluded that sanctioning the knowing disclosure of illegally
intercepted communications will deter the initial interception
itself, a crime which is extremely difficult to detect. It is
estimated that over 20 million scanners capable of intercepting
cellular transmissions currently are in operation, see Thompson,
Cell Phone Snooping: Why Electronic Eavesdropping Goes Unpunished,
35 Am. Crim. L. Rev. 137, 149 (1997), notwithstanding the fact that
Congress prohibited the marketing of such devices eight years ago,
see 47 U.S.C. 302a(d).
As Congress recognized, "[a]ll too
often the invasion of privacy itself will go unknown. Only by
striking at all aspects of the problem can privacy be adequately
protected." S. Rep. No. 1097, at 69. See also Hearings on H. R.
3378 before the Subcommittee on Courts, Civil Liberties, and the
Administration of Justice of the House Committee on the Judiciary,
99th Cong., 1st Sess. and 2d Sess., 290 (1986) ("Congress should be
under no illusion " that the Department [of Justice], because of
the difficulty of such investigations, would be able to bring a
substantial number of successful prosecutions").
Nonetheless, the Court faults Congress for providing "no empirical
evidence to support the assumption that the prohibition against
disclosures reduces the number of illegal interceptions," ante, at
15-16, and insists that "there is no basis for assuming that
imposing sanctions upon respondents will deter the unidentified
scanner from continuing to engage in surreptitious interceptions,"
ante, at 16. It is the Court's reasoning, not the judgment of
Congress and numerous States regarding the necessity of these laws,
The "quantum of empirical evidence needed to satisfy heightened
judicial scrutiny of legislative judgments will vary up or down
with the novelty and plausibility of the justification raised."
Nixon v. Shrink Missouri Government PAC, 528 U.S. 377, 391 (2000).
"[C]ourts must accord substantial deference to the predictive
judgments of Congress." Turner Broadcasting, 512 U.S., at 665
(citing Columbia Broadcasting System, Inc. v. Democratic National
Committee, 412 U.S. 94, 103 (1973)). This deference recognizes
that, as an institution, Congress is far better equipped than the
judiciary to evaluate the vast amounts of data bearing upon complex
issues and that "[s]ound policymaking often requires legislators to
forecast future events and to anticipate the likely impact of these
events based on deductions and inferences for which complete
empirical support may be unavailable." Turner Broadcasting, 512
U.S., at 665. Although we must nonetheless independently evaluate
such congressional findings in performing our constitutional
review, this "is not a license to reweigh the evidence de novo, or
to replace Congress' factual predictions with our own." Id., at
The "dry up the market" theory, which posits that it is possible to
deter an illegal act that is difficult to police by preventing the
wrongdoer from enjoying the fruits of the crime, is neither novel
nor implausible. It is a time-tested theory that undergirds
numerous laws, such as the prohibition of the knowing possession of
stolen goods. See 2 W. LaFave & A. Scott, Substantive Criminal
Law 8.10(a), p. 422 (1986) ("Without such receivers, theft ceases
to be profitable. It is obvious that the receiver must be a
principal target of any society anxious to stamp out theft in its
various forms"). We ourselves adopted the exclusionary rule based
upon similar reasoning, believing that it would "deter unreasonable
searches," Oregon v. Elstad, 470 U.S. 298, 306 (1985), by removing
an officer's "incentive to disregard [the Fourth Amendment],"
Elkins v. United States, 364 U.S. 206, 217 (1960).
The same logic applies here and demonstrates that the incidental
restriction on alleged First Amendment freedoms is no greater than
essential to further the interest of protecting the privacy of
individual communications. Were there no prohibition on disclosure,
an unlawful eavesdropper who wanted to disclose the conversation
could anonymously launder the interception through a third party
and thereby avoid detection. Indeed, demand for illegally obtained
private information would only increase if it could be disclosed
without repercussion. The law against interceptions, which the
Court agrees is valid, would be utterly ineffectual without these
For a similar reason, we upheld against First Amendment challenge a
law prohibiting the distribution of child pornography. See New York
v. Ferber, 458 U.S. 747 (1982). Just as with unlawfully intercepted
electronic communications, we there noted the difficulty of
policing the "low-profile, clandestine industry" of child
pornography production and concurred with 36 legislatures that
"[t]he most expeditious if not the only practical method of law
enforcement may be to dry up the market for this material by
imposing severe criminal penalties on persons selling, advertising,
or otherwise promoting the product." Id., at 760. In so doing, we
did not demand, nor did Congress provide, any empirical evidence to
buttress this basic syllogism. Indeed, we reaffirmed the theory's
vitality in Osborne v. Ohio, 495 U.S. 103, 109-110 (1990), finding
it "surely reasonable for the State to conclude that it will
decrease the production of child pornography if it penalizes those
who possess and view the product, thereby decreasing
At base, the Court's decision to hold these statutes
unconstitutional rests upon nothing more than the bald substitution
of its own prognostications in place of the reasoned judgment of 41
legislative bodies and the United States Congress.
does not explain how or from where Congress should obtain
statistical evidence about the effectiveness of these laws, and
"[s]ince as a practical matter it is never easy to prove a
negative, it is hardly likely that conclusive factual data could
ever be assembled." Elkins, supra, at 218. Reliance upon the "dry
up the market" theory is both logical and eminently reasonable, and
our precedents make plain that it is "far stronger than mere
speculation." United States v. Treasury Employees, 513 U.S. 454,
These statutes also protect the important interests of deterring
clandestine invasions of privacy and preventing the involuntary
broadcast of private communications. Over a century ago, Samuel
Warren and Louis Brandeis recognized that "[t]he intensity and
complexity of life, attendant upon advancing civilization, have
rendered necessary some retreat from the world, and man, under the
refining influence of culture, has become more sensitive to
publicity, so that solitude and privacy have become more essential
to the individual." The Right to Privacy, 4 Harv. L. Rev. 193, 196
(1890). "There is necessarily, and within suitably defined areas, a
" freedom not to speak publicly, one which serves the same ultimate
end as freedom of speech in its affirmative aspect." Harper &
Row, Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 559
(1985) (internal quotation marks and citation omitted). One who
speaks into a phone "is surely entitled to assume that the words he
utters into the mouthpiece will not be broadcast to the world."
Katz v. United States, 389 U.S. 347, 352 (1967); cf. Gelbard v.
United States, 408 U.S. 41, 52 (1972) (compelling testimony about
matters obtained from an illegal interception at a grand jury
proceeding "compounds the statutorily proscribed invasion of "
privacy by adding to the injury of the interception the insult of "
These statutes undeniably protect this venerable right of privacy.
Concomitantly, they further the First Amendment rights of the
parties to the conversation. "At the heart of the First Amendment
lies the principle that each person should decide for himself or
herself the ideas and beliefs deserving of expression,
consideration, and adherence." Turner Broadcasting, 512 U.S., at
641. By "protecting the privacy of individual thought and
expression," United States v. United States Dist. Court for Eastern
Dist. of Mich., 407 U.S. 297, 302 (1972), these statutes further
the "uninhibited, robust, and wide-open" speech of the private
parties, New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964).
Unlike the laws at issue in the Daily Mail cases, which served only
to protect the identities and actions of a select group of
individuals, these laws protect millions of people who communicate
electronically on a daily basis. The chilling effect of the Court's
decision upon these private conversations will surely be great: An
estimated 49.1 million analog cellular telephones are currently in
operation. See Hao, Nokia Profits from Surge in Cell Phones, Fla.
Today, July 18, 1999, p. E1.
Although the Court recognizes and even extols the virtues of this
right to privacy, see ante, at 17-18, these are "mere words," W.
Shakespeare, Troilus and Cressida, act v, sc. 3, overridden by the
Court's newfound right to publish unlawfully acquired information
of "public concern," ante, at 10. The Court concludes that the
private conversation between Gloria Bartnicki and Anthony Kane is
somehow a "debate " . worthy of constitutional protection." Ante,
at 20. Perhaps the Court is correct that "[i]f the statements about
the labor negotiations had been made in a public arena-during a
bargaining session, for example-they would have been newsworthy."
Ante, at 10. The point, however, is that Bartnicki and Kane had no
intention of contributing to a public "debate" at all, and it is
perverse to hold that another's unlawful interception and knowing
disclosure of their conversation is speech "worthy of
constitutional protection." Cf. Hurley v. Irish-American Gay,
Lesbian and Bisexual Group of Boston, Inc., 515 U.S. 557, 573
(1995) ("[O]ne important manifestation of the principle of free
speech is that one who chooses to speak may also decide 'what not
to say' "). The Constitution should not protect the involuntary
broadcast of personal conversations. Even where the communications
involve public figures or concern public matters, the conversations
are nonetheless private and worthy of protection. Although public
persons may have forgone the right to live their lives screened
from public scrutiny in some areas, it does not and should not
follow that they also have abandoned their right to have a private
conversation without fear of it being intentionally intercepted and
The Court's decision to hold inviolable our right to broadcast
conversations of "public importance" enjoys little support in our
precedents. As discussed above, given the qualified nature of their
holdings, the Daily Mail cases cannot bear the weight the Court
places upon them. More mystifying still is the Court's reliance
upon the "Pentagon Papers" case, New York Times Co. v. United
States, 403 U.S. 713 (1971) (per curiam), which involved the United
States' attempt to prevent the publication of Defense Department
documents relating to the Vietnam War. In addition to involving
Government controlled information, that case fell squarely under
our precedents holding that prior restraints on speech bear " 'a
heavy presumption against " constitutionality.' " Id., at 714.
Indeed, it was this presumption that caused Justices Stewart and
White to join the 6-to-3 per curiam decision. See id., at 730-731
(White, J., joined by Stewart, J., concurring) ("I concur in
today's judgments, but only because of the concededly extraordinary
protection against prior restraints enjoyed by the press under our
constitutional system"). By no stretch of the imagination can the
statutes at issue here be dubbed "prior restraints." And the
Court's "parallel reasoning" from other inapposite cases fails to
persuade. Ante, at 20.
Surely "the interest in individual privacy," ante, at 2, at its
narrowest must embrace the right to be free from surreptitious
eavesdropping on, and involuntary broadcast of, our cellular
telephone conversations. The Court subordinates that right, not to
the claims of those who themselves wish to speak, but to the claims
of those who wish to publish the intercepted conversations of
others. Congress' effort to balance the above claim to privacy
against a marginal claim to speak freely is thereby set at
. See 18 U.S.C. 2511(1) (1994 ed. and Supp. V); Ala. Code
13A-11-30 et seq. (1994); Alaska Stat. Ann. 42.20.300(d) (2000);
Ark. Code Ann. 5-60-120 (1997); Cal. Penal Code Ann. 631 (West
1999); Colo. Rev. Stat. 18-9-303 (2000); Del. Code Ann., Tit. 11,
1336(b)(1) (1995); D. C. Code Ann. 23-542 (1996); Fla. Stat.
934.03(1) (Supp. 2001); Ga. Code Ann. 16-11-66.1 (1996); Haw. Rev.
Stat. 803-42 (1993); Idaho Code 18-6702 (1997); Ill. Comp. Stat.,
ch. 720, 5/14-2(b) (1999 Supp.); Iowa Code 808B.2 (1994); Kan.
Stat. Ann. 21-4002 (1995); Ky. Rev. Stat. Ann. 526.060 (Michie
1999); La. Rev. Stat. Ann. 15:1303 (1992); Me. Rev. Stat. Ann.,
Tit. 15, 710(3) (Supp. 2000); Md. Cts. & Jud. Proc. Code Ann.
10-402 (Supp. 2000); Mass. Gen. Laws 272:99(C)(3) (1997); Mich.
Comp. Laws Ann. 750.539e (West 1991); Minn. Stat. 626A.02 (2000);
Mo. Rev. Stat. 542.402 (2000); Neb. Rev. Stat. 86-702 (1999); Nev.
Rev. Stat. 200.630 (1995); N. H. Rev. Stat. Ann. 570-A:2 (Supp.
2000); N. J. Stat. Ann. 2A:156A-3 (West Supp. 2000); N. M. Stat.
Ann. 30-12-1 (1994); N. C. Gen. Stat. 15A-287 (1999); N. D. Cent.
Code 12.1-15-02 (1997); Ohio Rev. Code Ann. 2933.52(A)(3) (1997);
Okla. Stat., Tit. 13, 176.3 (2000 Supp.); Ore. Rev. Stat. 165.540
(1997); 18 Pa. Cons. Stat. 5703 (2000); R. I. Gen. Laws 11-35-21
(2000); Tenn. Code Ann. 39-13-601 (1997); Tex. Penal Code Ann.
16.02 (Supp. 2001); Utah Code Ann. 77-23a-4 (1982); Va. Code Ann.
19.2-62 (1995); W. Va. Code 62-1D-3 (2000); Wis. Stat. 968.31(1)
(1994); Wyo. Stat. Ann. 7-3-602 (1995).
. "Electronic communication" is defined as "any transfer of
signs, signals, writing, images, sounds, data, or intelligence of
any nature transmitted in whole or in part by a wire, radio,
electromagnetic, photoelectronic or photooptical system." 18 U.S.C.
2510(12) (1994 ed., Supp. V).
. The one exception was Daily Mail, where reporters obtained
the juvenile defendant's name from witnesses to the crime. See 443
U.S., at 99. However, the statute at issue there imposed a blanket
prohibition on the publication of the information. See id., at
98-99. In contrast, these antidisclosure provisions do not prohibit
publication so long as the information comes from a legal
. In 1986, to ensure that only the most culpable could face
liability for disclosure, Congress increased the scienter
requirement from "willful" to "intentional." 18 U.S.C. 2511(1)(c);
see also S. Rep. No. 99-541, p. 6 (1986) ("In order to underscore
that the inadvertent reception of a protected communication is not
a crime, the subcommittee changed the state of mind requirement
under [Title III] from 'willful' to 'intentional' ")
. Tellingly, we noted in Florida Star that "[t]o the extent
sensitive information rests in private hands, the government may
under some circumstances forbid its nonconsensual acquisition,
thereby bringing outside of the Daily Mail principle the
publication of any information so acquired." 491 U.S., at 534; see
also id., at 535 ("[I]t is highly anomalous to sanction persons
other than the source of [the] release").
. The problem is pervasive because legal "radio scanners [may
be] modified to intercept cellular calls." S. Rep. No. 99-541, at
9. For example, the scanner at issue in Boehner v. McDermott, 191
F.3d 463 (CADC 1999), had been recently purchased at Radio Shack.
See Thompson, 35 Am. Crim. L. Rev., at 152 (citing Stratton,
Scanner Wasn't Supposed to Pick up Call, But it Did, Orlando
Sentinel, Jan. 18, 1997, p. A15).
. In crafting the exclusionary rule, we did not first require
empirical evidence. See Elkins, 364 U.S., at 218 ("Empirical
statistics are not available to show that the inhabitants of states
which follow the exclusionary rule suffer less from lawless
searches and seizures than do those of states which admit evidence
unlawfully obtained"). When it comes to this Court's awesome power
to strike down an Act of Congress as unconstitutional, it should
not be "do as we say, not as we do."
. The Court attempts to distinguish Ferber and Osborne on the
ground that they involved low-value speech, but this has nothing to
do with the reasonableness of the "dry up the market" theory. The
Court also posits that Congress here could simply have increased
the penalty for intercepting cellular communications. See ante, at
14. But the Court's back-seat legislative advice does nothing to
undermine the reasonableness of Congress' belief that prohibiting
only the initial interception would not effectively protect the
privacy interests of cellular telephone users.
. The Court observes that in many of the cases litigated under
2511(1), "the person or persons intercepting the communication
ha[ve] been known." Ante, at 15. Of the 206 cases cited in the
appendices, 143 solely involved 2511(1)(a) claims of wrongful
interception-disclosure was not at issue. It is of course
unremarkable that intentional interception cases have not been
pursued where the identity of the eavesdropper was unknown. Of the
61 disclosure and use cases with published facts brought under
2511(1)(c) and (d), 9 involved an unknown or unproved eavesdropper,
1 involved a lawful pen register, and 5 involved recordings that
were not surreptitious. Thus, as relevant, 46 disclosure cases
involved known eavesdroppers. Whatever might be gleaned from this
figure, the Court is practicing voodoo statistics when it states
that it undermines the "dry up the market" theory. See ante, at 16,
n. 17. These cases say absolutely nothing about the interceptions
and disclosures that have been deterred.