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Supreme Consideration: Free Speech vs. Privacy

Magazine article Editor & Publisher

Supreme Consideration: Free Speech vs. Privacy

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Bartnicki v. Vopper may be high court's most significant First Amendment case since the Pentagon Papers

Journalists often publish confidential government memos and corporation documents with little concern for how their sources obtained the papers. But they may have to start worrying, depending on how the U.S. Supreme Court decides a free-speech case it heard last Tuesday.

In a contest between the First Amendment right to publish and the right to privacy, Pennsylvania union negotiators asked the high court to allow damages against radio stations that aired a recording of their cellular telephone conversation.

Justices gave little indication how they might rule. A decision for the union officials could leave journalists -- print as well as broadcast - - subject to a chilling effect as they consider whether they might face lawsuits for publishing confidential material.

"This one is seminal. This is a question left open decades ago in the original Pentagon Papers case," said defense lawyer Thomas Goldstein. The Pentagon Papers case established that government could not restrain speech, but left moot whether journalists may be punished after the fact.

Last week's case, Bartnicki v. Vopper, tests a 1986 federal law that bars disclosure of information obtained from illegally monitored cellular telephone conversations. In May 1993, union official Anthony Kane told union negotiator Gloria Bartnicki that if the local school board did not increase its salary offer, "We're gonna have to go to their, their homes ... to blow off their front porches." Someone (still unknown to authorities) sent a tape recording of the conversation to Jack Yocum, head of a taxpayers' group working to restrain teacher pay increases. Yocum gave the tape to Frederick W. Vopper, a disc jockey, who played it on current-affairs programs on stations WILK and WGBI. …

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