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SUPREME COURT OF THE
UNITED STATES
21 may 2001
BARTNICKI et al. v.
VOPPER, aka WILLIAMS, et al.
Justice Stevens
delivered the opinion of the Court.
I
(feiten)
II
(procedure)
III
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
authorities. [6] 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
Surveillance.
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. § 2510 (2).
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 phones. [7] 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. V).
IV
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
Amendment. [8]
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.
V
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). [9]
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 matter.
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), [10]
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
Amendment protects. [11] 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 120.
VI
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 (1978).
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.” [12] 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 532—533.
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 ends.
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), [13] 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. [14]
In virtually all of those cases, the identity of the
person or persons intercepting the communication has
been known. [15] 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, [16]
and there is no empirical evidence to support the
assumption that the prohibition against disclosures
reduces the number of illegal interceptions. [17]
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, 475 (1995). [18]
Accordingly, the Government's first suggested
justification for applying §2511(1)(c) to an otherwise
innocent disclosure of public information is plainly
insufficient. [19]
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, 559 (1985), [20] 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 private speech.
“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)). [21]
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 concern. [22] 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.
1.
See 48 Stat. 1069, 1103.
2.
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).
3.
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 provision.
4.
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 . . . .”
5.
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.
6.
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.
7.
See, e.g., Nix v. O'Malley, 160
F.3d 343, 346 (CA6 1998); McKamey v. Roach,
55 F.3d 1236, 1240 (CA6 1995).
8.
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).
9.
“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).
10.
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.
11.
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”).
12.
That question was subsequently reserved in Landmark
Communications, Inc. v. Virginia, 435
U.S. 829, 837 (1978).
13.
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.
14.
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.
15.
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 unknown.
16.
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. Leahy).
17.
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.
18.
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).
19.
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 (1972).
20.
“ '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)).
21.
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).
22.
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 truthful information”).
De zeer
lezenswaardige concurring opinion en Dissenting opinion
alsmede volledige tekst van de uitspraak zijn te vinden
op: http://www.supremecourtus.gov/
of http://supct.law.cornell.edu/supct/html/99-1687.ZS.html.
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