Justices back free speech vs. privacy

THE BALTIMORE SUN

WASHINGTON - In a case pitting the right of free speech against the right of privacy, the Supreme Court ruled yesterday that a radio station could not be sued for broadcasting a cellular phone conversation that was illegally recorded by someone else.

The 6-3 decision is a significant victory for news organizations, which often publish information that sources have obtained or leaked unlawfully. The court's ruling gives journalists considerable leeway to report such information even though their sources can be punished for breaking the law.

But the court stopped short of giving the news media complete freedom to publish illegally obtained news. It stressed that the conversation broadcast by the radio station - in which two union leaders talked about blowing up the front porches of school board members - involved a matter of public concern. Had the conversation involved a purely private matter, the court indicated, the outcome might have been different.

"In this case, privacy concerns give way when balanced against the interest in publishing matters of public importance," Justice John Paul Stevens wrote for a plurality of four justices. "One of the costs associated with participation in public affairs is an attendant loss of privacy."

The scope of the court's decision was further limited by Justice Stephen G. Breyer, who wrote a concurring opinion that was joined by Justice Sandra Day O'Connor. Breyer pointed out that the radio station had played no part in illegally recording the conversation. He also suggested that his vote might have been different had the union leaders not discussed a potential crime.

But because they talked about committing violence, Breyer wrote, they "had little or no legitimate interest in maintaining the privacy of the particular conversation."

In a dissenting opinion, Chief Justice William H. Rehnquist argued that the court's decision would undermine the privacy that many people expect in their daily communications on telephones and over computers. Rehnquist also said the ruling would dampen free speech by making people more reluctant to share information through electronic means.

"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," Rehnquist wrote in an opinion joined by Justices Antonin Scalia and Clarence Thomas.

Yesterday's ruling stemmed from a protracted labor dispute in 1993 between teachers and school officials in Wyoming, Pa. During the dispute, the union's chief negotiator used her cell phone to call the union's president. The two discussed strategy, and the president complained about the school board's reluctance to meet the union's demands.

"If they're not going to move for 3 percent, we're gonna have to go to their homes ... to blow off their front porches," the union president said. "We'll have to do some work on some of those guys."

An unknown person recorded the conversation and mailed a tape of it to the president of a local taxpayers group. That official then gave the tape to a local radio commentator, who played it over the air after a settlement was reached between officials and the union.

After learning of the broadcast, the union leaders sued the radio commentator and the president of the taxpayers group, maintaining that they had violated a 1968 federal wiretapping law. That law makes it a crime not only to intercept electronic communications, but also to disclose the contents of any communication that one has reason to know was unlawfully obtained.

The defendants contended that the First Amendment protected them from the lawsuit - an argument that a federal district court rejected and a federal appeals court accepted. The federal government, which had intervened to defend the law, then asked the Supreme Court to hear the case.

In agreeing with the appellate court yesterday, the justices ruled that the First Amendment's protections of free speech outweigh the privacy interests protected by the ban on disclosing intercepted communications.

The court dismissed the government claim that the ban on disclosures is necessary to prevent illegal interceptions. It said there was no evidence that the two were linked.

The court did agree with the government that the ban on disclosures would protect people's privacy by ensuring that illegally recorded conversations were not replayed to the public. But when the conversation involves a matter of public concern, it concluded, this privacy interest is outweighed by the public's interest in free speech.

The court's decision applies only to conversations recorded in violation of the federal wiretap law; that is the only law that expressly bars news organizations from publishing unlawfully obtained information. Though sources often break other laws when they leak information, those laws do not bar journalists from reporting the information.

In another First Amendment development yesterday, the court agreed to rule on the constitutionality of a federal law that makes it a crime to place objectionable material on the Web without taking steps to prevent access by children.

The law is the government's second major attempt to restrict the availability of online pornography for children. The government's first effort, the Communications Decency Act, was struck down in 1997 by the court, which said that law made it too difficult for adults to access pornography.

Supporters of the new law, which was passed in 1998 and is known as the Child Online Protection Act, say it differs from the earlier law in several ways.

First, it does not apply to all forms of communication on the Internet, such as e-mail and list-serves, but only to material posted on the Web, where it can be more widely viewed. Nor does it apply to material that has educational value. And instead of banning all "indecent" material, it bans only material that is "patently offensive with respect to minors."

Despite these differences, lower federal courts ruled that the law violates the First Amendment. The government then appealed to the Supreme Court, which will hear the case in the court term that begins in October.

The Supreme Court also took these actions yesterday:

Declined to hear a challenge to Houston's electoral districts for city council, which opponents alleged were improperly designed with race in mind.

Declined to hear David Hale's complaint that he was wrongly prosecuted in Arkansas after the Whitewater independent counsel cut a deal for his testimony against former President Bill Clinton and others.

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