U.S. Supreme Court Extends First Amendment Protection to Republication of Illegally Intercepted Communications

June 1, 2001

In a case of first impression, the U.S. Supreme Court in late May held that media outlets that receive matter obtained via illegal eavesdropping activity have a First Amendment privilege to use and disseminate that material, provided that they themselves did not participate in the illegal eavesdropping or receive the material through illegal means.

Bartnicki v. Vopper could impact the use of audiotapes obtained via illegal eavesdropping in news investigations. Up until now, eavesdropping laws that make dissemination of material obtained in illegal eavesdropping activity a civil and criminal offense have deterred the dissemination of such material by the producers of news investigations. The Court's holding in Bartnicki, however, extends a First Amendment shield to the dissemination of such materials, under some circumstances.

The facts of the case are simple: Someone (exactly who is unknown) recorded a telephone conversation between union organizers involved in a labor dispute involving a school board. A copy of the tape found its way into the hands of the defendant, a media representative, which disclosed its contents by playing it on the air. The federal eavesdropping law and its Pennsylvania counterpart make it a civil and criminal offense to divulge or disseminate illegally overheard conversations.

But the Court in Bartnicki held that a First Amendment privilege to use and disseminate the contents of the recorded telephone conversation shields the defendant from prosecution under both federal and Pennsylvania eavesdropping laws. Setting up a three part test that parties must meet in order to receive First Amendment protection, the court said that the media republisher must have no complicity in the law violation, that the republisher's access was obtained lawfully, that is, not the result of theft or some other illegal conduct, and that the information involves a matter of public concern.

The Court's extension of a First Amendment shield to media outlets' dissemination of materials obtained via illegal eavesdropping is consistent with other First Amendment case law, including the use of juvenile court records and publishing names of rape victims.

Please contact a member of Sonnenschein's First Amendment Group, listed below, with any questions.

Samuel Fifer in Chicago at (312) 876-3114 -- Sfifer@sonnenschein.com

Michael Bamberger in New York at (212) 768-6756 -- Mbamberger@sonnenschein.com

Jim Klenk in Chicago at (312) 876-8072 -- Jklenk@sonnenschein.com

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