Nos. 99-1687 & 99-1728 

In the Supreme Court of the United States 

GLORIA BARTNICKI AND ANTHONY F. KANE, JR., 
PETITIONERS 

v. 

FREDERICK W. VOPPER, AKA FRED WILLIAMS, ET AL. 

UNITED STATES OF AMERICA, PETITIONER 

v. 

FREDERICK W. VOPPER, ET AL. 

ON WRITS OF CERTIORARI 
TO THE UNITED STATES COURT OF APPEALS 
FOR THE THIRD CIRCUIT 

REPLY BRIEF FOR THE UNITED STATES 

SETH P. WAXMAN 

Solicitor General 

Counsel of Record 
Department of Justice 
Washington, D.C. 20530-0001 
(202) 514-2217 

TABLE OF CONTENTS 

Page 

A. Title III is subject to intermediate scrutiny .................... 
1 

B. The Florida Star line of cases is inapposite ..................... 
5 

C. Title III satisfies intermediate scrutiny ........................... 
10 

Appendix ......................................................................................... 1a 

TABLE OF AUTHORITIES 

Cases: 

Arkansas Writers’ Project, Inc. v. Ragland, 

481 US. 221 (1987) .................................................................. 

4 

Asmar v. Detroit News, 836 F.2d 1347 (6th Cir. 

1988) ......................................................................................... 12 

Birnbaum v. United States, 436 F. Supp. 967 

(E.D.N.Y. 1977) ...................................................................... 

9 

Boehner v. McDermott, 191 F.3d 463 (D.C. Cir. 

1999) ..................................................................................... 

12, 13 

Bolger v. Youngs Drug Prods. Corp., 463 U.S. 60 

(1983) ........................................................................................ 11 

Branzburg v. Hayes, 408 U.S. 665 (1972) .......................... 

20 

Brockett v. Spokane Arcades, Inc., 472 U.S. 491 

(1985) ........................................................................................ 10 

Buckley v. Valeo, 424 U.S. 1 (1976) .................................... 

8 

Burson v. Freeman, 504 U.S. 191 (1992) ........................... 

4 

Butterworth v. Smith, 494 U.S. 624 (1990) ......................... 

7 

City of Ladue v. Gilleo, 512 U.S. 43 (1994) ....................... 

8 

Cohen v. Cowles Media Co., 501 U.S. 663 (1991) ............. 

1 

Cox v. Louisiana, 379 U.S. 536 (1965) ............................... 

8 

Cox Broad. Corp. v. Cohn, 420 U.S. 469 (1975) ................. 

7 

Edenfield v. Fane, 507 U.S. 761 (1993) .............................. 

11 

FCC v. League of Women Voters, 468 U.S. 364 

(1984) ........................................................................................ 4 

Florida Star v. B.J.F., 491 U.S. 524 (1989) .............. 

5, 6, 7, 10 

Folsom v. Marsh, 9 F. Cas. 342 (C.C.D. Mass. 1841) 

(No. 4901) ................................................................................ 9 

(I) 

II 

Cases—Continued: Page 

Forsyth v. Barr, 19 F.3d 1527 (5th Cir.), cert. denied, 

513 U.S. 871 (1994) ................................................................ 

12 

Forsyth County v. Nationalist Movement, 505 U.S. 123 

(1992) ........................................................................................ 17 

Fultz v. Gilliam, 942 F.2d 396 (6th Cir. 1991) .................. 

12 

Gee v. Pritchard, 36 Eng. Rep. 670 (K.B. 1818) ............... 

9 

Gelbard v. United States, 408 U.S. 41 (1972) .................... 

15 

Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974) .............. 

9 

Harper & Row Pubishers, Inc. v. Nation Enters., 

471 U.S. 539 (1985) ................................................................ 

9, 17 

Hill v. Colorado, 120 S. Ct. 2480 (2000) ............................. 

3, 7 

Hurley v. Irish-American Gay, Lesbian & Bisexual 

Group of Boston, 515 U.S. 557 (1995) ................................ 

8 

Hustler Magazine, Inc. v. Falwell, 485 U.S. 46 

(1988) ........................................................................................ 8 

Katz v. United States, 389 U.S. 347 (1967) ........................ 

16 

Landmark Communications, Inc. v. Virginia, 

435 U.S. 829 (1978) ................................................................ 

6, 7 

Leathers v. Medlock, 499 U.S. 439 (1991) .......................... 

4 

Mayes v. LIN Television of Tex., Inc., No. 3:96-CV- 
0396-X, 1998 WL 665088 (N.D. Tex. Sept. 22, 1998) ....... 

12 

Natoli v. Sullivan, 606 N.Y.S.2d 504 (Sup. Ct. 

1993) ......................................................................................... 12 

New York v. Ferber, 458 U.S. 747 (1982) ....................... 

11, 13 

Nixon v. Shrink Mo. Gov’t PAC, 120 S. Ct. 897 

(2000) ........................................................................................ 1 

Osborne v. Ohio, 495 U.S. 103 (1990) .................................. 

11 

Peavy v. WFAA-TV, Inc., 221 F.3d 158 (5th Cir. 

2000), petition for cert. pending, No. 00-69 ....................... 

12 

Pope v. Curl, 26 Eng. Rep. 608 (K.B. 1741) ...................... 

9 

Seattle Times Co. v. Rhinehart, 467 U.S. 20 (1984) ........ 

3 

Simon & Schuster, Inc. v. Members of N.Y. State 

Crime Victims Bd., 502 U.S. 105 (1991) ........................... 

4 

Smith v. Daily Mail Pub. Co., 443 U.S. 97 (1979) ........... 

5 

Terminiello v. Chicago, 337 U.S. 1 (1949) ......................... 17 

III 

Cases—Continued: Page 

Thompson v. Stanhope, 27 Eng. Rep. 476 (K.B. 

1774) ......................................................................................... 9 

Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622 

(1994) .................................................................................... 

1, 3, 8 

Woolsey v. Judd, 11 Super. Ct. (4 Duer) 379, 11 How. 

Pr. 49 (N.Y. Super. Ct. 1855) ............................................... 

9 

Constitution and statutes: 

U.S. Const. Amend. I ........................................ 

1, 4, 7, 11, 17, 20 

Omnibus Crime Control and Safe Streets Act of 1968, 

Pub. L. No. 90-351, Tit. III, 82 Stat. 212 (18 U.S.C. 

2510 et seq.) ....................................................................... 

passim 

18 U.S.C. 2511(1) ............................................................... 

11 

18 U.S.C. 2511(1)(c) ........................................................... 

4 

18 U.S.C. 2511(1)(d) .......................................................... 

4 

18 U.S.C. 2515 .................................................................... 

11 

Criminal Code, R.S.C. ch. C-46, § 193(1) (Can. 1985) ......... 

14 

Telecommunications (Interception) Act of 1979, 

§ 63 (Austr.) ............................................................................ 

14 

Miscellaneous: 

Black’s Law Dictionary (5th ed. 1979) ............................. 

12, 19 

Cryptographers Crack Digital Cellular Code, 

Communications Today, Mar. 21, 1997 .............................. 

1, 8 

G. Curtis, A Treatise on the Law of Copyright (1847) ....... 
9 

E. Drone, The Law of Property in Intellectual Pro- 
ductions (1879) ....................................................................... 
9 

Fifth Annual Report and Analysis of Competitive 

Market Conditions with Respect to Commercial 
Mobile Services, FCC No. 00-289 (Aug. 3, 2000) ............. 

18 
H.R. Rep. No. 24, 106th Cong., 1st Sess. (1999) .................. 
18 

H.R. Rep. No. 725, 106th Cong., 2d Sess. (2000) ................. 
18 

Hearings Before the Subcomm. on Courts, Civil 

Liberties, and the Administration of Justice of the 
Sen. Judiciary Comm.: Electronic Communications 
Privacy Act, 99th Cong., 1st & 2d Sess. (1985-1986) ...... 18 

IV 

Miscellaneous—Continued: Page 

Hearings on Invasion of Privacy Before the Subcomm. 
on Administration Practice and Procedure of the 
Sen. Judiciary Comm., 89th Cong., 1st Sess. Pt. 5 
(1966) ........................................................................................ 16 

C. Kaplan, Spies Like Us, Newsday, June 10, 1990 ............ 

13 

W. R. LaFave & A. W. Scott, Jr. Substantive Criminal 

Law (1986): 

Vol. 1 .................................................................................... 
19 

Vol. 2 .................................................................................... 
11 

Restatement (Second) of Torts (1965) .................................. 
20 

P. Rubin, Sure It’s Secure—But Is It Really Safe? En- 
cryption Algorithms for CDMA and TDMA Are Prov- 
ing Disturbingly Easy to Crack, tele.com (McGraw 
Hill May 1, 1997) (avail. 1997 WL 18325455) .................... 
19 

J. Sandberg, Weakness Is Found in Digital Phone 

System, Wall St. J. Europe, Apr. 14, 1998 ........................ 18 

A. Title III Is Subject To Intermediate Scrutiny 

Respondents take issue with our submission (U.S. Br. 11- 
12, 20-28) that Title III’s prohibition on the use and dis- 
closure of illegally intercepted communications is subject to 
intermediate scrutiny. As we have explained, three reasons 
support our conclusion. First, the prohibition is content 
neutral, because it bars exploitation of all communications 
known to have been intercepted in violation of Title III, 
without regard to the communication’s content, while per- 
mitting the identical content to be used or disseminated 
freely if it is not obtained from an unlawful interception. 
U.S. Br. 20-23. Second, Title III treats speech and non- 
speech uses of illegally intercepted communications identi- 
cally; it thus does not single out speech for disfavored 
treatment. U.S. Br. 23-27. Third, Title III not only protects 
a legally recognized zone of privacy against technological 
intrusion, but also furthers First Amendment values by 
encouraging uninhibited interchange and discussion among 
private parties—interchange that would be chilled if every 
communication were subject to the threat of unrestricted 
use and dissemination following illegal interception. U.S. Br. 
27-28. This Court and its members have recognized that 
those characteristics make intermediate scrutiny appropri- 
ate. See Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 642 
(1994) (“[R]egulations that are unrelated to the content of 
speech are subject to an intermediate level of scrutiny”); 
Cohen v. Cowles Media Co., 501 U.S. 663, 669 (1991) 
(“generally applicable laws do not offend the First Amend- 
ment simply because” of “incidental effects on [the press’s] 
ability to gather and report the news”); Nixon v. Shrink Mo. 
Gov’t PAC, 120 S. Ct. 897, 911 (2000) (Breyer, J., concurring) 
(intermediate scrutiny proper where “constitutionally pro- 
tected interests lie on both sides of the legal equation”). 

1. Respondents resist intermediate scrutiny by contend- 
ing that Title III is content based, because assertedly it is 

(1) 

2 

“hostile toward” messages that contain “supposedly private 
information,” Yocum Br. 48, or has the “sole goal” of “sup- 
press[ing] speech,” id. at 46-47. See also WFAA-TV Br. 19- 

20. Those assertions overlook the fact that Title III bars use 
and disclosure of stolen communications whether or not they 
concern matters that might be labeled intimate or private. 
Title III’s concern is not the content of the stolen speech, but 
the fact that it was unlawfully obtained by the use of elec- 
tronic or mechanical eavesdropping devices. Respondents 
also overlook that Title III does not prohibit publication of 
the same information if it is not obtained through illegal 
interception, even if that information is highly private. 
Finally, respondents’ claim that Title III has a speech- 
suppression purpose overlooks the fact that the prohibition 
extends to all exploitation of illegally intercepted communi- 
cations, whether or not the prohibited uses are expressive. 
See U.S. Br. 24.1 
Title III thus does not (Liberty Proj. Br. 6, 8, 13) seek to 
prevent “the disclosure of certain information to the public,” 
or “reflect the government’s preference for silence.” Title 
III aims at the unlawful theft of communications in the first 
instance, and the exploitation of such stolen communications 
thereafter. And it does so not to regulate topic, viewpoint, 
or content, but rather because permitting the untrammeled 
exploitation of stolen communications increases the incentive 
to engage in unlawful interception in the first instance, and 
because the exploitation of stolen communications multiplies 

1 The prohibition on non-expressive uses cannot be dismissed as a 
“minor aspect” (Liberty Proj. Br. 8) of Title III. The vast majority of use- 
and-disclosure cases involve non-expressive uses (e.g., use by one spouse 
against the other to obtain an advantage in divorce) or disclosures made to 
permit such uses (e.g., to the divorce lawyer). See Vopper Br. 38 n.24. In 
an appendix to this brief, we reproduce the list of private use-and- 
disclosure cases that were cited in the appendix to the Vopper Brief (at 
9a-13a), together with parentheticals describing the relevant facts. 

3 

the intrusion on the right of conversational privacy that Title 
III protects. U.S. Br. 34-35. 

2. Respondents and their amici argue that Title III is 
content based on its face because, “[t]o determine whether 
Title III applies,” the communication’s “ ‘contents’ must be 
assessed.” Vopper Br. 25 n.16; Yocum Br. 48. This Court re- 
jected precisely that argument last Term, declaring that it 
has “never held, or suggested, that it is improper to look at 
the content of an oral or written statement in order to deter- 
mine whether a rule of law applies.” Hill v. Colorado, 120 S. 
Ct. 2480, 2492 (2000). Content neutrality depends on 
whether the statute discriminates based on topic or view- 
point, id. at 2491, or was adopted “because of [agreement or] 
disagreement with the message,” Turner, 512 U.S. at 642 
(quotation marks omitted)—not on whether a court must 
examine the contents of the statement as part of the 
statute’s enforcement. 

The need to examine “content” under Title III requires 
only a comparison between the disclosure at issue and the 
underlying intercepted communication. That comparison 
does not involve a judgment that favors or disfavors dis- 
closures on particular topics or viewpoints. Were it other- 
wise, copyright actions would be subject to strict scrutiny 
merely because a court must examine the expression to see 
if it appropriates copyrighted material; likewise, breach of 
contract actions would be subject to strict scrutiny because 
one must review the agreement to identify the promise that 
was made. See also Hill, 120 S. Ct. at 2492 (other examples). 
Indeed, if respondents were correct, the judicial order in 
Seattle Times Co. v. Rhinehart, 467 U.S. 20 (1984)—which 
barred the newspaper from disclosing information obtained 
through discovery and thus required review of the newspa- 
per’s disclosures as part of enforcement—would have been 
subject to strict scrutiny; this Court upheld that order under 
an intermediate level of scrutiny. Id. at 32. Nor do the cases 
that respondents and amici cite support the contrary view. 

4 

Those cases instead show that strict scrutiny generally ap- 
plies to statutes that discriminate on subject, viewpoint, or 
speaker, or that otherwise single out speech for unique 
sanction.2 

3. Finally, respondents and their amici argue (Yocum Br. 
46-47; WFAA-TV Br. 11-13) that Title III is not a law of 
general applicability, since it specifically identifies speech 
(disclosure) as falling within its prohibition. As Title III’s 
plain terms indicate, however, it applies with equal force to 
all forms of exploitation, whether non-expressive (“use”), or 
expressive (“disclosure”). See U.S. Br. 25. The fact that 
First Amendment activity, such as publication or broadcast, 
may be involved in a particular case results in no different or 
additional sanction. Respondents and their amici are correct 
that Title III bars use and disclosure in separate subsections 
—use in 18 U.S.C. 2511(1)(d), and disclosure in 18 U.S.C. 
2511(1)(c)—and that “disclosure” thus is not a subset of 
“use.” Vopper Br. 28; Yocum Br. 45; WFAA-TV Br. 13-14. 

2 See, e.g., Simon & Schuster, Inc. v. Members of N.Y. State Crime 
Victims Bd., 502 U.S. 105, 116 (1991) (Son-of-Sam law subjected to strict 
scrutiny because it “singles out income derived from expressive activity 
for a burden the State places on no other income,” and was “directed only 
at works with a specified content,” i.e., writings about the felon’s crimes); 
Burson v. Freeman, 504 U.S. 191 (1992) (statute barring vote solicitation 
near polling stations but placing no burden on any other speech or 
solicitation); FCC v. League of Women Voters, 468 U.S. 364, 384 (1984) 
(statute banning “editorializing” on “matters of public concern” that dis- 
criminated among speakers—“singl[ing] out noncommercial broadcasters 
and den[ying] them the right to address their chosen audience” on those 
matters—reviewed carefully because it might “reflect[] an impermissible 
attempt to * * * control . . . the search for political truth”) (quotation 
marks omitted); Arkansas Writers’ Project, Inc. v. Ragland, 481 U.S. 221, 
228, 230 (1987) (statute that taxes magazine based on the subjects of the 
articles requires strict scrutiny because “selective taxation of the 
press—either singling out the press as a whole or targeting individual 
members of the press—poses a particular danger of abuse by the State”); 
Leathers v. Medlock, 499 U.S. 439, 453 (1991) (“differential taxation * * * 
does not implicate the First Amendment unless the tax is directed at, or 
presents the danger of suppressing, particular ideas”). 

5 

But the statute’s scope and operation would be identical if 
Congress had barred all uses, “including” disclosure, in a 
single provision. See U.S. Br. 24-25. Congress’s decision to 
bar non-expressive uses in one section and disclosures in 
another has no constitutional significance. 

B. The Florida Star Line Of Cases Is Inapposite 

Respondents also contend that Title III is subject to strict 
scrutiny even if it is generally applicable and content neu- 
tral. Respondents mainly rely (e.g., Vopper Br. 20-21) on a 
line of cases culminating in Florida Star v. B.J.F., 491 U.S. 
524 (1989), that apply the “Daily Mail” principle, Smith v. 
Daily Mail Pub. Co., 443 U.S. 97 (1979)—that strict scrutiny 
applies to laws punishing the publication of truthful informa- 
tion, on matters of public significance, that was “lawfully 
obtained.” Florida Star, 491 U.S. at 533, 541. Because the 
Daily Mail principle applies only when the information was 
“lawfully obtained,” it has no application to cases such as this 
one in which the communication was not. As this Court 
explained in Florida Star, “[t]he Daily Mail principle does 
not settle the issue whether, in cases where information has 
been acquired unlawfully by a newspaper or by a source, 
government may ever punish not only the unlawful acquisi- 
tion, but the ensuing publication as well.” 491 U.S. at 535 

n.8. To the contrary, when “sensitive information rests in 
private hands, the government may under some circum- 
stances forbid its nonconsensual acquisition, thereby bring- 
ing outside of the Daily Mail principle the publication of any 
information so acquired.” Id. at 534.3 

3 Respondent Yocum argues (Br. 39-40) that the Daily Mail principle 
applies here because Congress did not also punish the receipt of the com- 
munication later disclosed. That argument overlooks the substance of 
Title III. Congress barred both the initial acquisition and any later dis- 
closures of protected communications. Prohibiting the intermediate step 
of passive receipt would not add protection, given the difficulty of deter- 
ring the passive acquisition of information and the potential unfairness of 
so doing. In any event, it would make no sense that the level of scrutiny 

6 

Respondents contend (Vopper Br. 20, 22; Yocum Br. 41- 

42) that Flordia Star reserves only whether government 
may punish the unlawful interceptor’s own disclosure. That 
contention cannot be reconciled with Florida Star’s lan- 
guage, which speaks of “punish[ing] * 
* * the ensuing pub- 
lication” where the information “has been acquired unlaw- 
fully by a newspaper or a source,” 491 U.S. at 535 n.8 (em- 
phasis added and omitted); ordinarily, the newspaper that 
engages in the “ensuing publication” is understood to be a 
different entity than the “source” that acquired the informa- 
tion unlawfully in the first instance. 

Respondents’ argument also rests primarily on the incor- 
rect assertion (Vopper Br. 21; Yocum Br. 39-40) that Land- 
mark Communications, Inc. v. Virginia, 435 U.S. 829 (1978), 
and Florida Star necessarily resolved the issue, because the 
information in those cases was “disclosed” or “divulged” by 
the police or others “in violation of a statutory duty.” 
Vopper Br. 21; Yocum Br. 39-40; McDermott Br. 7-8. But 
the speakers in those cases did not obtain the information 
unlawfully; nor did their sources. To the contrary, in those 
cases, a lawful custodian of information released it into the 
public domain. In that context, those seeking to protect 
their information can more carefully select and supervise 
those to whom they entrust it. See Florida Star, 491 U.S. at 
534; U.S. Br. 31-32. Where communications instead are ille- 
gally seized by strangers through an unlawful intrusion into 
a protected zone of privacy, that means of protection is 
unavailable, because there is no entrustment. There is 
instead only an unlawful invasion, potentially by means (e.g., 
a hidden bug) against which individuals cannot reasonably 
protect themselves. It is for that reason that this Court has 
reserved from the scope of the Daily Mail principle cases in 
which the information is “acquired unlawfully,” see Florida 

would be lower if only Congress had prohibited not just willful inter- 
ception and willful disclosures, but passive receipt as well. 

7 

Star, 491 U.S. at 535 n.8, rather than cases in which the 
information is disclosed unlawfully. Indeed, for similar 
reasons, this Court in Cox Broadcasting Co. v. Cohn, 420 
U.S. 469, 489 (1975), was careful to note that the information 
in that case (a rape victim’s name) was acquired from court 
records, rather than from “a physical or other tangible 
intrusion into a private area.” See also Florida Star, 491 
U.S. at 533. The communication in this case, in contrast, was 
obtained through an intrusion into a legally recognized zone 
of privacy. See also p. 16, infra. 

Moreover, the statutes at issue in the Florida Star line 
were not truly content neutral. For example, while Vopper 
relies (Br. 25-26) on Butterworth v. Smith, 494 U.S. 624 
(1990), and Landmark, supra, the statutes in those cases 
sought to suppress information on particular topics (grand 
jury investigations in Butterworth and judicial misconduct 
proceedings in Landmark), with the manifest objective of 
preventing public dissemination of the substance of particu- 
lar governmental proceedings. The remaining cases in the 
Florida Star line similarly addressed statutes that identified 
topics (e.g., crime victim’s name, identity of juvenile of- 
fender) on which reporting was prohibited. U.S. Br. 30-31. 
Nor were the statutes at issue in the Florida Star line laws 
of general applicability, since they applied solely to speech 
itself. U.S. Br. 30. See, e.g., Butterworth, 494 U.S. at 627 & 

n.1 (making it unlawful to “disclose,” “publish,” or “communi- 
cate,” but not barring other uses); Landmark, 435 U.S. at 
831 n.1 (“divulge”). Title III, in contrast, is comprehensive, 
prohibiting all exploitation of illegally intercepted commu- 
nications. In the First Amendment context, “comprehensive- 
ness * * * is a virtue, not a vice, because it is evidence 
against there being a discriminatory governmental motive.” 
Hill, 120 S. Ct. at 2497. See also U.S. Br. 25-26. 
Respondents and their amici also cite a variety of other 
cases in an effort to prove that content-neutral laws of gen- 
eral applicability can be subject to strict scrutiny. See 

8 

Vopper Br. 27; WFAA-TV Br. 11-12; Liberty Proj. Br. 9-10. 
That effort fails. Many of the cases they cite involve statutes 
that were not content neutral or generally applicable.4 
Others do not address the level of scrutiny.5 

And still others 
involve laws that suppress “too much speech” by “fore- 
clos[ing] an entire medium of expression” that is “uniquely 
valuable or important,” City of Ladue v. Gilleo, 512 U.S. 43, 
54, 55 (1994). Respondents, however, nowhere argue that 
Title III forecloses an entire (much less a “uniquely valu- 
able”) medium of expression, and do not claim that they 
often knowingly rely on illegally intercepted communica- 
tions. See p. 20, infra. Finally, reliance on this Court’s defa- 

4 Buckley v. Valeo, 424 U.S. 1 (1976) (cited Vopper Br. 27) is one such 
case. Buckley, this Court has explained, “stands for the proposition that 
laws favoring some speakers over others demand strict scrutiny when the 
legislature’s speaker preference reflects a content preference.” Turner, 
512 U.S. at 658. The Court in Buckley also noted that the limitations at 
issue there could not satisfy the O’Brien test because “the interests 
served by the Act include restricting the voices of people and interest 
groups who have money to spend and reducing the overall scope of federal 
election campaigns.” 424 U.S. at 17. Thus, “[a]lthough the Act does not 
focus on the ideas expressed,” it was, in the Court’s view, “aimed in part at 
equalizing the relative ability of all voters to affect electoral outcomes by 
placing a ceiling on expenditures for political expression.” Ibid. No such 
governmental objective of readjusting political debate is present here. 
Moreover, the statute in Buckley, although “neutral as to the ideas 
expressed,” was not neutral as to subject; it singled out for special limit 
the “political expression” that lies “at the core of our electoral process and 
of the First Amendment freedoms.” Buckley, 424 U.S. at 39 (quotation 
marks omitted). Nor does Hustler Magazine, Inc. v. Falwell, 485 U.S. 46 
(1988), support respondents’ view. There, the Court held that the inten- 
tional infliction of emotional distress tort could not be invoked to punish 
speech because it provided no “principled standard” as to what speech was 
impermissible, id. at 55, and because the “outrageousness” standard was 
effectively content based because its “inherent subjectiveness” invited 
juries to impose liability based on the “adverse emotional impact” of the 
content, ibid. See pp. 16-17, infra. 

5 E.g., Liberty Proj. Br. 9-10 (citing Hurley v. Irish-American Gay, 
Lesbian & Bisexual Group of Boston, 515 U.S. 557 (1995); and Cox v. 
Louisiana, 379 U.S. 536 (1965)). Cox, moreover, may have involved a 
content-based statute. See 379 U.S. at 551. 

9 

mation decisions is misplaced. Those cases do not purport to 
apply strict scrutiny, and in any event, defamation law, 
which addresses only statements about a person that injure 
reputation, is inherently content based and, far from being 
generally applicable, is wholly speech specific. Gertz v. 
Robert Welch, Inc., 418 U.S. 323, 342 (1974). Title III, in 
contrast, is generally applicable and does not proscribe any 
particular sentiment or subject; it instead proscribes reliance 
on a particular unlawful source. 

Respondents and their amici at bottom argue that their 
use of stolen communications should receive the same level 
of constitutional protection and scrutiny as would dissemina- 
tion of their own original thoughts and viewpoints. That 
position cannot be reconciled with the Nation’s copyright 
laws, which protect original authors while imposing liability 
for the publication of a misappropriated manuscript. See, 

e.g., Harper & Row, Publishers, Inc. v. Nation Enters., 471 
U.S. 539 (1985). Nor can it be squared with the common law 
(see U.S. Br. 35 & n.10), which held the publication of a 
private letter without the author’s consent—the functional 
equivalent of respondents’ broadcast of a verbatim recording 
of Bartnicki and Kane’s conversation—to be an actionable 
wrong from before this Nation was founded.6 Stolen books 
and letters may be truthful in content, but the government 
may punish their dissemination, reproduction, or use, so long 

6 Birnbaum v. United States, 436 F. Supp. 967, 979-980 (E.D.N.Y. 
1977). See, e.g., Pope v. Curl, 26 Eng. Rep. 608 (K.B. 1741) (enjoining 
publication of book of letters); Thompson v. Stanhope, 27 Eng. Rep. 476 
(K.B. 1774) (familial letters); Gee v. Pritchard, 36 Eng. Rep. 670, 678 (K.B. 
1818) (personal letters); Folsom v. Marsh, 9 F. Cas. 342, 347 (C.C.D. Mass. 
1841) (No. 4901) (Story, J.) (George Washington’s letters); Woolsey v. 
Judd, 11 Super. Ct. (4 Duer) 379, 11 How. Pr. 49 (N.Y. Super. 1855). Ac- 
cord G. Curtis, A Treatise on the Law of Copyright 94 (1847) (letter’s 
author has right to “decide whether there shall be any publication at all”); 
E. Drone, The Law of Property in Intellectual Productions 130-131 (1879) 
(“right to withhold * * * expressed thoughts from publication is as 
inviolable as [the] right to publish them”). 

10 

as it does not discriminate regarding topic or viewpoint. 
Title III does precisely that with respect to stolen conver- 
sations, like the one at issue here.7 

C. Title III Satisfies Intermediate Scrutiny 

Title III’s bar on use and disclosure furthers three 
substantial governmental interests: it lessens the incentive 
to engage in illegal interceptions; it prevents the compound- 
ing of damage that occurs when such interceptions are used 
or disseminated; and it promotes frank and candid exchange 
(and the use of new communications technologies) by assur- 
ing those who speak in private that their words will not be 
intercepted and broadcast for all the world to hear. 

1. Respondents do not dispute the well-established prin- 
ciple that eliminating the outlets for, and potential benefits 
of, criminal activity decreases the incentive to engage in 

7 Respondents’ assertion (Yocum Br. 28-29; Vopper Br. 30 n.20, 49 

n.31) that Title III bars the disclosure of facts, whereas statutory and 
common law copyright relate only to the form of expression, hardly assists 
their cause, since respondents appropriated expression by broadcasting an 
entire verbatim recording of the intercepted conversation. There is no 
reason for this Court to reach out beyond this case to decide Title III’s 
applicability in the infrequent case that does not involve a tape recording 
(i.e., a literal reproduction of expression). The Court repeatedly has es- 
chewed broad pronouncements in this area, instead “relying on limited 
principles that sweep no more broadly than the appropriate context of 
the” case before it. Florida Star, 491 U.S. at 533. In this case, that princi- 
ple is that government may constitutionally punish the publication of ex- 
pression appropriated through illegal intrusions into a constitutionally 
recognized zone of privacy. Indeed, because respondents disseminated 
expression, they lack standing to challenge Title III on the ground that its 
prohibition may also extend to facts. See Bartnicki Reply Br. 15 n.13, 17- 

19. Nor can respondents rely on the doctrine of substantial overbreadth to 
challenge the statute “on its face because it also threatens others not be- 
fore the court,” Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 503 
(1985). This suit involves only an as applied challenge; and the question 
certified by the district court asks only if liability can be imposed “for 
broadcasting the newsworthy tape,” Pet. App. 76a (emphasis added). In 
any event, even as to facts, Title III is constitutional for the reasons given 
in this brief and in our principal brief. 

11 

criminal acts. See U.S. Br. 37-38, 40-42 (citing 2 W. R. 
LaFave & A. W. Scott, Jr., Substantive Criminal Law 
§ 8.10(a), at 422 (1986); New York v. Ferber, 458 U.S. 747, 
759-760 (1982); and Osborne v. Ohio, 495 U.S. 103, 109-110 
(1990)). Respondents instead argue that the principle is in- 
applicable here because Congress did not rely on it in Title 
III’s legislative history, Vopper Br. 37-38; and they dispute 
whether, in this context, eliminating the outlets for the fruits 
of illegal conduct will actually deter illegal interceptions, 
Vopper Br. 39; Yocum Br. 16-23.8 As to the first argument, 
this Court does not require the legislative history to mention 
every rationale for purposes of intermediate scrutiny. See 
Bolger v. Youngs Drug Prods. Corp., 463 U.S. 60, 70-71 & 

n.19 (1983); Edenfield v. Fane, 507 U.S. 761, 768 (1993). That 
should be especially true where, as here, the rationale is suf- 
ficiently obvious. No one disputes that Title III’s exclusion- 
ary rule, 18 U.S.C. 2515, which proscribes the use of illegally 
intercepted communications as evidence, is designed to 
lessen the incentive to engage in illegal interceptions in the 
first instance. See Yocum Br. 22. It stands to reason that 
Section 2511(1), which proscribes all other means of exploit- 
ing such communications, serves the same purpose in the 
same way, i.e., it decreases the incentive to engage in 
unlawful invasions by making the fruits of the violation not 

8 Respondents distinguish the prohibitions in Ferber and Osborne, as 
well as the proscription on the receipt of stolen property, by noting that 
those prohibitions either do not bar speech at all or bar speech of 
“exceedingly modest” First Amendment value. Yocum Br. 21-22; Vopper 
Br. 39. Respondents misunderstand our position. We do not contend that 
Ferber and Osborne control this case; we contend only that they recognize 
that foreclosing outlets for the proceeds of criminal activity deters the 
underlying illegal conduct. Respondents also err by asserting (e.g., Yocum 
Br. 12) that the government has not “adduce[d] any evidence” to support 
the deterrence rationale. Quite apart from the fact that the government 
has never been given the opportunity to present evidence, U.S. Br. 42 

n.14, no evidence is required, since the connection between outlets for the 
fruits of illegal conduct and the incentive to engage in that conduct is 
obvious and borne out by this Court’s cases. 

12 

merely unusable in court, but for any other purpose as well. 
See Boehner v. McDermott, 191 F.3d 463, 469-470 (D.C. Cir. 
1999); Fultz v. Gilliam, 942 F.2d 396, 401 (6th Cir. 1991). 

Respondents also claim that, because the incentive to 
engage in unlawful interceptions is not always financial, 
Vopper Br. 39, or driven by a “market” for the illegal fruits, 
Yocum Br. 12-13, eliminating outlets for intercepted com- 
munications will not deter interceptions.9 Respondents err. 
Whether or not one uses market terminology, the incentives 
for illegal interceptions—which can range from a desire to 
embarrass a disliked neighbor to the achievement of political 
ends—are undoubtedly increased if intercepted communica- 
tions can be freely used and disclosed by others. In fact, the 
cases show that wiretappers often derive a benefit from 
third-party disclosure, whether that benefit is the elimina- 
tion of a competitor or simple revenge. 

10 Indeed, in this 
very case, the illegal interception may have been motivated 
by a desire to embarrass the union and thereby defeat its 
bargaining demands, and the interceptor’s own unlawful dis- 
closure of the tape—leading to its eventual publication— 
seems clearly motivated by that goal. Nor is respondent 

9 Respondent Yocum incorrectly argues (Br. 13) that Title III’s bar on 
“procur[ing] any other person” to intercept communications precludes a 
“market” or payment for illegally intercepted communications. To “pro- 
cure” an illegal interception, however, one must “cause” or “induce” the in- 
terception before it occurs; payment after the fact by itself is insufficient. 
See Black’s Law Dictionary 1087 (5th ed. 1979). 

10 See, e.g., Mayes v. LIN Television of Tex., Inc., No. 3:96-CV-0396-X, 
1998 WL 665088 (N.D. Tex. Sept. 22, 1998) (illegal wiretap anonymously 
provided to plaintiff’s political opponents, potentially by plaintiff ’s ex- 
wife); Asmar v. Detroit News, 836 F.2d 1347 (6th Cir. 1988) (Table) 
(anonymous tape recording revealing bribery by competing contractor 
sent to media); Natoli v. Sullivan, 606 N.Y.S.2d 504, 505 (Sup. Ct. 1993) 
(illegally taped call given to press to achieve “political, economic, personal 
and other advantage”); Peavy v. WFAA-TV, 221 F.3d 158 (5th Cir. 2000) 
(interception by feuding neighbor provided to media), petition for cert. 
pending, No. 00-69; Forsyth v. Barr, 19 F.3d 1527 (5th Cir.) (wiretap by 
neighbors with a “grudge” sent to police), cert. denied, 513 U.S. 871 (1994). 

13 

Yocum correct to assert (Br. 16) that interceptions cannot be 
deterred by barring use and disclosure because interceptions 
are not “targeted” at particular victims, or are generally 
motivated by voyeurism and not the possibility of later use. 
Review of the cases cited in the Vopper Brief Appendix (9a- 
13a), see App., infra, 1a-11a, demonstrates that most inva- 
sions are targeted and motivated by the possibility of later 
use. 

Respondents also err when they assert (Vopper Br. 42; 
Yocum Br. 36) that Congress could achieve its goals by 
prosecuting wiretappers more vigorously. Congress specifi- 
cally found that wiretapping is often a clandestine and 
difficult-to-detect enterprise, U.S. Br. 37-38 & n.12—a con- 
clusion that remains true given the breathtaking technolo- 
gies through which conversational privacy may now be 
breached—whereas follow-on uses are easier to detect and 
redress. Compare Ferber, 458 U.S. at 760 (government may 
deter the “low-profile, clandestine industry” that produces 
child pornography by attacking the more “visible apparatus 
of distribution”). 

11 Respondents’ view would permit illegally 
intercepted communications to be “laundered” and dissemi- 
nated on a large scale, as happened here. Without individu- 
als (and institutions) willing to participate in that dissemina- 
tion, wiretappers could rarely achieve such anonymous mass 
dissemination themselves. See Boehner, 191 F.3d at 471. 

11 Respondent Vopper suggests (Br. 42 n.27) that it is no more difficult 
to detect and prosecute unauthorized interceptors—who may use remote 
electronic means of surveillance—than those who physically invade the 
home or other locations. That assertion is directly contradicted by the 
President’s 1967 Commission on Law Enforcement and Congress’s ex- 
press findings. See U.S. Br. 37 & n.12. Respondent Vopper’s sole author- 
ity for his contrary claim, moreover, is a newspaper article discussing the 
investigation of computer viruses. Those who have considered the issue of 
unlawful interceptions consider them unusually difficult to detect. See C. 
Kaplan, Spies Like Us, Newsday, June 10, 1990, at 80 (“evidence to 
prompt an investigation can be hard to get,” because “there’s almost no 
way the government can know that [it] is happening”). 

14 

While Yocum speculates otherwise (Br. 18), he never 
explains how the unidentified wiretapper who intercepted 
the conversation here could have disseminated it by himself 
to tens of thousands of radio listeners in the local community, 
particularly without increasing the likelihood of apprehen- 
sion. Nor does it matter that relatively unsophisticated 
wiretappers—primarily individuals who record a spouse’s 
conversation and try to use it in a divorce proceeding—often 
make no effort to disguise their conduct. See Vopper Br. 39- 
40 & n.25. Congress may address the actions of sophisti- 
cated actors as well. 

Finally, noting Congress’s desire to make wire and 
electronic communications as secure as the mails (U.S. Br. 4), 
respondents argue that Title III’s prohibition on use and 
disclosure is unnecessary. Yocum argues that, because this 
Nation’s mail theft statutes “contain no analogous prohibi- 
tion” on disclosure, he “lawfully could have disclosed” a 
“copy of a letter stolen from the mails.” Yocum Br. 20; see 
Vopper Br. 41-42. That assertion is simply incorrect. Com- 
mon law copyright long has barred the dissemination of 
stolen letters. See p. 9 & note 6, supra. Respondents thus 
would have been no less subject to suit for reproducing the 
entirety of a stolen letter between Bartnicki and Kane than 
they are for reproducing the entirety of the stolen telephone 
conversation under Title III. Nor does Title III’s use and 
disclosure prohibition stand “basically alone” (Yocum Br. 15) 
in American law. The prohibition not only has a venerable 
antecedent in the common law treatment of private letters, 
but it also stands alongside more than three dozen state 
statutes with similar prohibitions, U.S. Br. 37, and the 
statutes of nations sharing our legal traditions, e.g., Criminal 
Code, R.S.C. ch. C-46, § 193(1) (Can. 1985); Telecommunica- 
tions (Interception) Act of 1979, § 63 (Austr.). In any event, 
any difference between the treatment of mail theft (which 
requires a physical invasion) and technological incursions 
into wire and electronic communications (which can be con- 

15 

ducted from a remote location, see U.S. Br. 37-38 n.12), is 
easily explained by the greater difficulty of detecting and 
prosecuting the latter. See p. 13 & note 11, supra. 

2. Title III’s prohibition on the use and disclosure of ille- 
gally intercepted communications also minimizes the injury 
caused by those illegal interceptions that do occur. U.S. Br. 
34, 39. As this Court has explained, the disclosure of illegally 
intercepted communications “compounds the statutorily pro- 
scribed invasion.” Gelbard v. United States, 408 U.S. 41, 52 
(1972). The mere threat of widespread dissemination, more- 
over, chills free expression in private conversation. U.S. Br. 
34-35. 

Respondents argue that those compounded injuries result 
from the “communicative impact” of speech and, therefore, 
are neither content neutral nor “unrelated to the sup- 
pression of free expression.” See, e.g., Vopper Br. 25 n.16 
(justification rests “on the impact of the communication’s 
content” on listeners “and the consequent injury” to the vic- 
tims of interception); Yocum Br. 25, 27. Those arguments 
echo respondents’ mistaken claims regarding content neu- 
trality. Title III is not concerned with the content of a com- 
munication, and the impact of such content on listeners is 
irrelevant. See pp. 2-4, supra. The disclosure in this case, 
for example, was proscribed without regard to the public’s 
reaction, and liability would in no way depend on the exis- 
tence, nature, or scope of communicative impact or listener 
reaction. Nor does Title III have the goal of “protecting 
people from the embarrassment” of disclosure, Liberty Proj. 
Br. 23-24. Title III would not have proscribed disclosure of 
the communication here if it had been obtained by lawful 
means. Title III thus is indifferent to communicative impact; 
it is the impact of the unlawful source that is Title III’s 
focus. 

12 

12 Nor does it matter that Title III’s legislative history identifies par- 
ticular examples of private matters that, if disclosed, might cause par- 

16 

Respondent Yocum errs similarly when he asserts (Br. 27) 
that Title III’s prohibition is justified by communicative 
impact because it “rests on the sense of ‘violation’ that arises 
from the disclosure of one’s communication.” The sense of 
violation that is relevant under Title III does not result from 
communicative impact, but rather from the impact of there 
having been an invasion into a zone we rightfully expect to 
be private, e.g., into private telephone conversations that 
everyone is “entitled to assume * * * will not be broadcast 
to the world.” See Katz v. United States, 389 U.S. 347, 352 
(1967). Any invasion into that zone is rendered more serious 
and more chilling of speech when additional people eaves- 
drop in the first instance, regardless of the communication’s 
content or the listeners’ reaction; and the same is true when 
additional people are enabled to “eavesdrop” after the fact 
by the conversation’s later publication. Thus, far from being 
justified by communicative impact, Title III is justified by 
the invasive and chilling effect of having additional eaves- 
droppers invade conversational privacy—whether in the 
first instance or on a time-delayed basis through rebroadcast 
—wholly apart from the communication’s content or any- 
one’s reaction to it. 

For those reasons, Amicus Liberty Project is incorrect to 
assert (Br. 20) that, if Title III were upheld, Congress could 

ticular harm to victims of unlawful interceptions. See Yocum Br. 48 
(noting Congress’s concern that “[e]very spoken word relating to each 
man’s personal, marital, religious, political, or commercial concerns” might 
be intercepted and exposed); WFAA-TV Br. 20-21. Those are just exam- 
ples of the sorts of speech that might be intercepted; the legislative 
history indicates Congress’s awareness that illegal interception is used in 
other contexts as well. See Hearings on Invasion of Privacy Before the 
Subcomm. on Administrative Practice and Procedure of the Sen. Judici- 
ary Comm., 89th Cong., 1st Sess. Pt. 5, at 2261 (1966) (three major areas 
of widespread private electronic surveillance were “(1) industrial (2) di- 
vorce cases, and (3) politics”). Most important, Congress never suggested 
that it was concerned solely with those subjects, and it passed a law 
covering all intercepted communications, regardless of content. 

17 

also bar “critical” or “vicious reviews” that might “deter 
authors from writing.” The rationale underlying that bar 
would be content based, because it would depend on the lis- 
teners’ reaction to the review’s message, and not (like Title 

III) on the injury caused by the unlawful source. For the 
same reason, respondents’ reliance (Vopper Br. 25 n.16) on 
Forsyth County v. Nationalist Movement, 505 U.S. 123, 134 
(1992), is misplaced. In that case, this Court invalidated a 
parade permit ordinance where fees were assessed based on 
the likelihood of hostile crowd reaction; the “[l]isteners’ reac- 
tion to speech,” the Court explained, “is not a content-neu- 
tral basis for regulation.” See also Terminiello v. Chicago, 
337 U.S. 1 (1949). Title III, in contrast, is indifferent to lis- 
tener reaction. Its prohibition instead is justified—without 
respect to the communication’s content or the way listeners 
respond—by the chilling effect that illegal interception and 
disclosure has on the willingness of people to communicate in 
the first instance. 

13 

3. Finally, respondents assert that Title III is not “nar- 
rowly tailored.” There are, they contend, alternative means 
of preserving conversational privacy, such as use of digital 
wireless telephones. Yocum Br. 13-14 & nn.5-8; Vopper Br. 
44-45. But the rule respondents propose—that the First 
Amendment guarantee their right to publish the contents of 
stolen conversations so long as they did not encourage or 
participate in the initial illegal interception—is not linked to 
the nature of telephone technology. To the contrary, it 
would prevent Congress from barring disclosure even where 
there are no reasonable means of preventing intrusion, such 

13 Nor can the government’s interest in promoting private (rather than 
public) communication be dismissed (e.g., Liberty Proj. Br. 13 n.4, 16) as 
illegitimate. In Harper & Row, this Court recognized the right not to 
speak publicly—whether or not in anticipation of later release—as a 
“countervailing First Amendment value” to speech in its “affirmative 
aspect.” 471 U.S. at 559, 560. See also p. 9 & note 6, supra (common law 
copyright protects right not to publish). 

18 

as where the wiretapper invades the home and plants a bug; 
uses a laser listening device on a window to hear conversa- 
tions inside; or pierces a state-of-the-art computer “firewall” 
to intercept private e-mails. See U.S. Br. 37 & n.12. 

In any event, respondents misunderstand wireless tele- 
phone technology. While they praise the modern digital 
telephone, this case concerns an interception that occurred in 
1993, at a time when digital telephones were expensive and 
not supported in most areas. 

14 Even today, almost half of all 
wireless telephone users still rely on analog technology, 
Yocum Br. 14 n.7, and many have no choice: 50% of this 
Nation’s land (containing over ten percent of its population) 
is not covered by a digital network. 

15 The current 
availability of superior (although not foolproof) technology to 
urban dwellers does not deprive Congress of its power to 
protect the conversational privacy of those who live in (or 
visit) rural areas. And the fact that privacy-preserving 
technology may be superior to privacy-invading technology 
at any moment cannot prevent Congress from legislating in 
case the tables are turned. Even now, “digital cellular and 
PCS are not immune from eavesdropping,” H.R. Rep. No. 
725, 106th Cong., 2d Sess. 10 (2000), and the privacy of those 
technologies is increasingly under attack. 

16 

14 Contrary to Vopper’s claim (Br. 4-5), the evidence before Congress 
when it amended Title III in 1986 hardly demonstrated “an array” of 
affordable privacy-protection devices. The evidence showed effective 
alternatives to be “very costly” and available only “down the road.” Hear- 
ings Before the Subcomm. on Courts, Civil Liberties, and the Administra- 
tion of Justice of the Sen. Judiciary Comm.: Electronic Communications 

Privacy Act, 99th Cong., 1st & 2d Sess. 39, 103, 206-207 (1985-1986). 

15 Compare Fifth Annual Report and Analysis of Competitive Market 
Conditions with Respect to Commercial Mobile Services, FCC No. 00-289 
(Aug. 3, 2000), at F-2 (Map 1 showing wireless coverage) with id. at F-3 
through F-6 (Maps 2-5 showing coverage of digital technologies, TDMA, 
CDMA, GSM, and iDEN). 

16 H.R. Rep. No. 24, 106th Cong., 1st Sess. 2 (1999); J. Sandberg, Weak- 
ness Is Found in Digital Phone System, Wall St. J. Europe, Apr. 14, 1998, 
at 8; Cryptographers Crack Digital Cellular Code, Communications 

19 

Alternatively, respondents argue that Title III’s prohibi- 
tions are overinclusive because they prohibit the dissemina- 
tion of matters that are not truly “private or personal,” 
Yocum Br. 26, and may apply to some members of the public 
who do not care if their calls are intercepted, id. at 25 n.13. 
If the statute limited itself to personal matters, however, 
respondents would surely argue that the statute is content 
based. In any event, respondents’ claim of overinclusiveness 
stems from their failure to grasp Title III’s purpose, which is 
not to protect “private or personal” facts, but to protect a 
zone of conversational privacy. In that respect, Title III is 
perfectly tailored. If the communication is obtained from 
that zone through an unlawful interception, it is subject to 
Title III’s strictures; but if it is obtained by other means, 

e.g., if it is overheard because one participant is speaking in 
public, Yocum Br. 25, it is not. Nor does Title III apply to 
speech that already has been broadly disseminated, Vopper 
Br. 45; Yocum Br. 37. Consistent with Title III’s legislative 
history, U.S. Br. 44, the term “disclose[]” in Section 
2511(1)(c) includes a requirement that the matter previously 
not be publicly known. See Black’s Law Dictionary 417 (5th 
ed. 1978) (defining “disclose” as to “bring into view by 
uncovering”). 

17 

Today, Mar. 21, 1997; P. Rubin, Sure It’s Secure—But Is It Really Safe? 
Encryption Algorithms for CDMA and TDMA Are Proving Disturbingly 
Easy to Crack, tele.com (McGraw Hill May 1, 1997) (avail. 1997 WL 
18325455) (noting that “researchers cracked the messaging encryption 
algorithm used in U.S.-based CDMA and TDMA digital cellular net- 
works”; current technology does not “protect a digital cellular user against 
a well-funded adversary”). 

17 Respondent Yocum (Br. 31) notes that Title III prohibits disclosure 
of unlawfully intercepted communications even to the police, notwith- 
standing society’s compelling interest in preventing crime. That is an odd 
point for respondent to make, since he did not take the tapes to the police. 
And while Title III does reflect Congress’s deliberate preference for pre- 
serving the privacy of communications over disclosure even for important 
and socially valuable purposes (see U.S. Br. 24), the traditional defense of 
“necessity” privileges conduct that is necessary to protect lives where (as 

20 

Finally, respondents argue that Title III is unconstitu- 
tional because it may “chill” the reporting of matters of 
public concern. The claim is overstated. Even though Title 
III has been in place for 32 years, respondents cite not one 
instance in which any responsible news agency has been 
chilled with respect to its reporting; nor does it appear that 
the zeal of news reporting has been adversely affected. See 
Branzburg v. Hayes, 408 U.S. 665, 693 (1972) (declining to 
recognize First Amendment source privilege for reporters 
where “the evidence fails to demonstrate there would be sig- 
nificant constriction of the flow of news” absent the privi- 
lege). Moreover, while respondents’ claims (e.g., Yocum Br. 
32; Vopper Br. 45) are based on Title III’s supposed breadth, 
respondents give insufficient weight to Title III’s scienter 
requirement. See U.S. Br. 45-46. Title III’s prohibition ap- 
plies only to those who either have actual knowledge of the 
nature of the interception or actual knowledge of facts that 
make those origins “so highly probable that” one should 
assume such to be true. Restatement (Second) of Torts § 12, 
cmt. a (1965). Indeed, the facts surrounding the interception 
must be apparent, because Title III imposes no duty of in- 
quiry. Ibid.; U.S. Br. 45-46. Consequently, Title III does not 
deter (and for the past three decades has not deterred) the 
press from reporting the news. Far from requiring report- 
ers to research sources for fear of illegality, it merely 
requires them to refrain from use if they know or all but 
know that the source was an unlawful interception. 

* * * * * 

The judgment of the court of appeals should be reversed. 

Respectfully submitted. 

here) the defense is not foreclosed by statute. 1 LaFave & Scott, supra, 
§ 5.4, at 627-629. 

21 

SETH P. WAXMAN 

Solicitor General 

NOVEMBER 2000 

APPENDIX 

Use and Disclosure Cases—18 U.S.C. 2511(1)(c), (d) 

(listed in Vopper Br. App. 9a-13a) 

1. Asmar v. Detroit News, Inc., Nos. 87-1037 & 1150, 836 
F.2d 1347 (6th Cir. 1988) (Table) (anonymously recorded call 
of conversation revealing bribery by competing contractor 
sent to newspaper and government contractor). 

2. Bartnicki v. Vopper, 200 F.3d 109 (3d Cir. 1999). 

3. Bast v. Cohen, Dunn & Sinclair, PC, 59 F.3d 492 (4th 
Cir. 1995) (suit arising out of dissolution of extramarital 
affair and business relationship, during which one partner 
allegedly recorded telephone conversations of another with- 
out consent). 

4. Beiter v. Kitto, No. 99-1020-KL, 2000 WL 884706 (D. 
Or. July 5, 2000) (cordless telephone conversations inter- 
cepted by neighbors and disseminated to other neighbors, 
who used the contents to harass plaintiffs). 

5. Berry v. Funk, 146 F.3d 1003 (D.C. Cir. 1988) (suit by 
former Acting Assistant Secretary of State against State 
Department officials for monitoring phone calls routed 
through the Department’s Operations Center, and for using 
and disclosing the contents of the calls in investigation 
during the Clinton passport probe). 

6. Boddie v. American Broadcasting Cos., Inc., 881 F.2d 
267 (6th Cir. 1989) (suit under pre-1986 version of Title III 
against broadcaster, reporter, and producers of television 
news program that aired secretly videotaped interview with 
plaintiff after she consented to an off-camera interview). 

(1a) 

2a 

7. Boehner v. McDermott, 191 F.3d 463 (D.C. Cir. 1999) 
(suit by Republican Member of Congress against Democrat 
Member of Congress after Florida couple, using a mobile 
police scanner and tailing plaintiff’s car, recorded a cellular 
telephone call containing politically damaging information 
and gave copies of the tape to defendant, who in turn 
released it to the press). 

8. Brooks v. American Broadcasting Cos., Inc., 999 F.2d 
167 (6th Cir. 1993) (suit arising out of alleged “ambush” 
interview by Geraldo Rivera; motion for leave to add Title 
III claim properly denied because there was no unlawful 
interception within the meaning of Title III). 

9. Campbell v. Price, 2 F. Supp. 2d 1186 (E.D. Ark. 1998) 
(ex-husband secretly recorded plaintiff ’s phone conversa- 
tions with daughter and disclosed contents to his lawyer and 
daughter’s counselor, both of whom disclosed and used the 
calls’ contents in custody proceedings). 

10. Chandler v. United States Army, 125 F.3d 1296 (9th 
Cir. 1997) (suit by Army Captain after being disciplined 
based on recordings of illegally intercepted conversations 
recorded by plaintiff’s wife and disclosed to Army officials, 
who in turn used them to investigate and discipline plaintiff). 

11. Davis v. Zirkelbach, 149 F.3d 614 (7th Cir. 1998) 
(police and city officials used contents of a phone call, which 
had been secretly recorded by plaintiff’s employer, to 
persuade witness to cooperate in their investigation of 
plaintiff’s narcotics trafficking). 

12. Deal v. Spears, 980 F.2d 1153 (8th Cir. 1992) (liquor 
store employee sued employers, who had secretly installed a 
recording device on the store’s phone to confirm suspicions 

3a 

that plaintiff was involved in a store robbery, but instead 
discovered and disclosed plaintiff’s extramarital affair). 

13. Desilets v. Wal-Mart Stores, Inc., 171 F.3d 711 (1st 
Cir. 1999) (suit by employees against employer based on 
management’s covert recording of night-shift phone conver- 
sations). 

14. Dorris v. Absher, 959 F. Supp. 813 (M.D. Tenn. 1997) 
(suit by employees after supervisor secretly recorded per- 
sonal in-office conversations and attempted to use them to 
terminate the employees). 

15. Epps v. St. Mary’s Hosp. of Athens, Inc., 802 F.2d 412 
(11th Cir. 1986) (suit by emergency medical workers against 
hospital and co-workers after plaintiffs’ phone conversation 
was recorded by another employee using the ambulance 
dispatch console and the contents were disclosed and used). 

16. Farberware, Inc. v. Groben, No. 89 Civ. 6240(PKL), 
1995 WL 590464 (S.D.N.Y. Oct. 5, 1995) (no facts provided; 
default judgment). 

17. First v. Stark County Bd. of Comm’rs, No. 99-3547, 
2000 WL 1478389 (6th Cir. Oct. 4, 2000) (suit by Sheriff ’s 
Department dispatchers after contents of conversation 
among dispatchers—automatically recorded by emergency 
call system—were used in a disciplinary proceeding). 

18. Forsyth v. Barr, 19 F.3d 1527 (5th Cir. 1994) (suit by 
plaintiff police officers after their intercepted conversations 
with an informant were used and disclosed in an internal 
affairs investigation; calls were intercepted by the infor- 
mant’s neighbors, who had been feuding with the informant). 

19. Freeman v. Ramada Inn, Inc., No. 83-3912, 805 F.2d 
1034 (6th Cir. 1986) (Table) (suit by convicted robber against 

4a 

police and hotel; hotel had rerouted call placed by robber to 
his accomplice (a hotel guest) to a police officer, and the call’s 
contents were later used in prosecuting the robber). 

20. Fultz v. Gilliam, 942 F.2d 396 (6th Cir. 1991) (suit 
against ex-husband, who had recorded plaintiff ’s phone con- 
versations with her boyfriend and played the tapes for her 
brother, the couple’s pastor, and their daughter). 

21. Gaubert v. Gaubert, No. 97-1673, 1999 WL 10384 (E.D. 
La. Jan. 7, 1999) (suit against ex-husband for recording 
wife’s conversations on home phone and disclosing contents 
to their children and others). 

22. Gentry v. E.I. DuPont De Nemours and Co., Inc., No. 
CA- 765, 1987 WL 15854 (Tenn. Ct. App. Aug. 18, 1987) (suit 
by night janitor against employer after plaintiff was disci- 
plined for receiving a personal phone call from a union 
organizer at work, in violation of company policy; call had 
been inadvertently recorded by defendant’s telephone 
answering machine). 

23. Goode v. Goode, No. 99-423-SLR, 2000 WL 291541 (D. 
Del. Mar. 14, 2000) (suit by ex-wife against ex-husband and 
his lawyer for intercepting and recording their phone con- 
versations, and for disclosing and using the contents of those 
communications in divorce proceedings; suit dismissed 
because Title III permitted husband, as party to the 
communications, to record them). 

24. Griggs-Ryan v. Smith, 904 F.2d 112 (1st Cir. 1990) 
(suit by tenant against landlady with whom he shared tele- 
phone line, after landlady listened to phone call implicating 
tenant in drug trafficking and disclosed the contents to the 
authorities; plaintiff held to have consented to monitoring, 
since he had been told that all calls were monitored). 

5a 

25. Hatchigan v. International Bhd. of Elec. Workers, 
Local Union No. 98, No. 87-7131, 1990 WL 2795 (E.D. Pa. 
Jan. 17, 1990) (recording of phone conversations between 
union officer and union member concerning wage dispute; 
court held that no illegal interception had occurred, since a 
party to the conversation had made the recording). 

26. Hodge v. Mountain States Tel. and Tel. Co., 555 F.2d 
254 (9th Cir. 1977) (suit against phone company for installa- 
tion of pen register at behest of police properly dismissed 
because Section 2511(1) does not apply to pen registers). 

27. Janecka v. Franklin, 684 F. Supp. 24 (S.D.N.Y. 1987) 
(suit by ex-wife against husband for recording telephone 
conversations between her and their minor children). 

28. Kempf v. Kempf, 868 F.2d 970 (8th Cir. 1989) (suit by 
ex- wife against former husband who had recorded calls 
between wife and those with whom she was having extra- 
marital affairs, and who had used the recordings in 
dissolution proceedings). 

29. Kirkland v. Franco, 92 F. Supp. 2d 578 (E.D. La 2000) 
(suit by ex-wife against husband who, suspecting marital 
infidelity, had recorded her telephone calls during the 
marriage, confronted her with the tapes, and then discussed 
them with her pastor, employer, mother, and during a child- 
custody hearing). 

30. Kratz v. Kratz, 477 F. Supp. 463 (E.D. Pa. 1979) (suit 
by wife and her lover against her husband and his lawyer, 
where husband had tapped the household telephone to 
gather information on alleged infidelity and had used the 
tape to gather information for divorce proceeding). 

6a 

31. Kreish v. Michigan Bell Tel. Co., No. 94-2130, 57 F.3d 
1069 (6th Cir. 1995) (Table) (suit alleging telephone company 
had disclosed contents of plaintiff’s conversations to others; 
summary judgment granted based on lack of evidence). 

32. Leach v. Byram, 68 F. Supp. 2d 1072 (D. Minn. 1999) 
(during dispute concerning dissolution of a family business, 
father intercepted plaintiff son’s portable telephone con- 
versations, recorded them, and turned them over to his 
attorney; son sued father’s attorney, who used and relied on 
the recordings in a letter to the son’s attorney). 

33. Lizza v. Lizza, 631 F. Supp. 529 (E.D.N.Y. 1986) (suit 
by wife and a third party against husband, where husband 
had recorded calls on their household telephone to gather 
information useful in pending divorce proceeding). 

34. Mayes v. LIN Television of Texas, Inc., No. 96-CV- 
0396-X, 1998 WL 665088 (N.D. Tex. Sept. 22, 1998) 
(anonymously recorded telephone conversation of politician 
delivered to politician’s opponents, who distributed copies of 
politically damaging conversation to the media; call may 
have been intercepted by ex-wife of one of the call’s par- 
ticipants). 

35. Meharg v. Poznick, No. 96-1074, 111 F.3d 129 (4th Cir. 
1997) (Table) (no facts provided). 

36. Nalley v. Nalley, 53 F. 3d 649 (4th Cir. 1995) (suit by 
husband against wife, where anonymous source had sent 
wife a recording of husband’s telephone conversations, re- 
vealing extra-marital affair; wife played the recordings for 
her children, for her attorney, and for the husband of the 
woman with whom her husband was having the affair). 

7a 

37. Natoli v. Sullivan, 606 N.Y.S.2d 504 (N.Y. Sup. Ct. 
1993) (defendants alleged to have recorded plaintiff’s phone 
calls and provided the recordings to the media defendants 
“to obtain political, economic, and other advantage at 
plaintiff ’s expense”). 

38. Newcomb v. Ingle, 944 F.2d 1534 (10th Cir. 1991) (suit 
by child against his mother because she recorded a conver- 
sation during which the child’s father instructed the child as 
he set fire to the family home). 

39. Noel v. Hall, No. 99-649-AS, 2000 WL 1364227 (D. Or. 
Sept. 15, 2000) (after plaintiff recorded his own phone con- 
versations, former business partner allegedly broke into 
business, copied the tapes, listened to them, shared them 
with others, and then took them to the police). 

40. Peavy v. WFAA-TV, Inc., 221 F.3d 158 (5th Cir. 2000) 
(telephone calls intercepted and recorded by plaintiff’s 
neighbor, who had been involved in various disputes with 
plaintiff; neighbor in turn provided tapes to defendant 
television station, which encouraged additional intercep- 
tions). 

41. Pollock v. Pollock, 154 F.3d 601 (6th Cir. 1998) (ex- 
husband sued former wife for recording phone calls between 
him and their minor daughter during a custody dispute). 

42. Pritchard v. Pritchard, 732 F.2d 372 (4th Cir. 1984) 
(suit by ex-husband against former wife where wife had 
placed a recording device on the family phone to record his 
telephone calls). 

43. Quigley v. Rosenthal, 43 F. Supp. 2d 1163 (D. Colo. 
1999) (suit against neighbors who allegedly, as part of a 

8a 

campaign to defame the plaintiffs, intercepted, recorded, and 
disclosed the contents of the plaintiffs’ cordless phone calls). 

44. Reynolds v. Spears, 857 F. Supp. 1341 (W.D. Ark. 
1994) (companion case to Deal v. Spears, supra; holding that 
wife of business owner was not liable merely because she 
overheard recordings of conversations as her husband 
listened to them). 

45. Rice v. Rice, No. 98-0806-CV-W-3, 1990 WL 357332 
(W.D. Mo. Sept. 4, 1990) (suit by ex-husband against former 
wife for recording telephone conversations between him and 
their children). 

46. Ricupero v. Wuliger, Fadel & Beyer, No. 1:91CV0589, 
1994 WL 483871 (N.D. Oh. 1994) (suit by wife against 
husband and his lawyers, after husband secretly recorded 
wife’s calls on home phone and, discovering her extra-marital 
affair, disclosed the tapes to his lawyers for use in divorce 
proceedings). 

47. Rodgers v. Wood, 910 F.2d 444 (7th Cir. 1990) (suit by 
police officers after suspect recorded call they made from the 
suspect’s home; call was disclosed by suspect’s attorney in 
court, to other police officers, and to the Assistant District 
Attorney). 

48. S.L. v. Friends Central High School, No. Civ.A.00- 
472, 2000 WL 352367 (E.D. Pa. Apr. 5, 2000) (transcript of 
plaintiff ’s e-mail exchange with another student, printed out 
by the other student and used to discipline plaintiff, held not 
to have been unlawfully intercepted). 

49. Sands v. Crist, No. 89-15502, 892 F.2d 1046 (9th Cir. 
1989) (Table) (suit by prisoner alleging that prison monitored 
his phone calls dismissed based on prisoner’s consent). 

9a 

50. Scheib v. Grant, 22 F.3d 149 (7th Cir. 1994) (suit by 
ex- wife against former husband’s attorneys, where husband 
had recorded her phone calls with their son, disclosed them 
to his attorneys, and the attorneys had attempted to 
introduce them at a hearing on a custody settlement). 

51. Sheinbrot v. Pfeffer, Nos. 93 CV 5343, 94 CV 0649, 
1995 WL 432608 (E.D.N.Y. July 12, 1995) (suit by physicians 
against former employee radiologist, who had listened to 
their phone calls at the office). 

52. Smith v. City of Hartford, No. X07CV 980070792S, 
2000 WL 1058877 (Conn. Super. Jul. 14, 2000) (city, 
firefighters union, and others allegedly used radio scanner to 
intercept and record plaintiff’s calls). 

53. Spetalieri v. Kavanaugh, 36 F. Supp. 2d 92 (N.D.N.Y. 
1998) (suit by police administrator against individual who 
used scanner to intercept and record plaintiff’s phone 
conversation, and against employer that, after receiving the 
tapes, used them to investigate and discipline plaintiff). 

54. Thompson v. Dulaney, 838 F. Supp. 1535 (D. Ut. 1993) 
(suit against former wife, her parents, her expert witnesses, 
and her lawyers where ex-wife taped ex-husband’s phone 
conversations with their children for use in divorce 
proceedings). 

55. Weeks v. Union Camp Corp., 215 F.3d 1323 (Table) 
(suit by employees against former employer, who had relied 
on tape of illegally intercepted conversation to dismiss them; 
tape of conversation had been made when another employee 
concealed a tape recorder in the workplace, near plaintiffs, in 
order to intercept their conversations). 

10a 

56. Wesley College v. Pitts, 974 F. Supp. 375 (D. De. 1997) 
(suit by college against former clerical employee, former 
faculty member, and current faculty member, where college 
president was sent unmarked envelope containing hard 
copies of sensitive e-mails the president had authored). 

57. Williams v. Poulos, 11 F.3d 271 (1st Cir. 1993) (grant- 
ing injunction against further use or disclosure of illegally 
intercepted calls where owners of company in bankruptcy 
had recorded employee phone calls, including calls made by 
officers of venture capital group taking over the bankrupt 
company, and then used information in the tapes for 
litigation purposes). 

58. United States v. Anaya, 779 F.2d 532 (9th Cir. 1985) 
(prosecution of police officers for placing a bug and recording 
the proceedings of a closed executive session of the city 
council). 

59. United States v. Harpel, 493 F.2d 346 (10th Cir. 1974) 
(prosecution of police officer for twice playing—for certain 
individuals in a bar—recording of an illegally intercepted 
conversation between other law enforcement officers; 
evidence insufficient to establish who had made the illegal 
recording in the first instance). 

60. United States v. Jones, 580 F.2d 219 (6th Cir. 1978) 
(prosecution for illegal interception and use of estranged 
wife’s calls). 

61. United States v. Landrum, 93 F.3d 122 (4th Cir. 1996) 
(suit by prisoner seeking collateral relief after he was con- 
victed of, among other things, intercepting his wife’s phone 
calls and using the contents in violation of Sections 2511(1)(a) 
and (c)). 

11a 

62. United States v. Newman, 476 F.2d 733 (3d Cir. 1973) 
(affirming conviction and sentence of former city councilman 
who willfully procured a phone company employee to 
illegally intercept and record the phone calls of his opponents 
so as to provide him with politically useful information 
regarding their plans). 

63. Zerilli v. Evening News Ass’n, 628 F.2d 217 (D.C. Cir. 
1980) (dismissing suit against law enforcement agents and 
newspaper where the agents allegedly had disclosed, and the 
newspaper published articles based on, the contents of 
communications intercepted by bugging devices in the early 
1960s; interceptions pre-dated Title III’s enactment).