No. 99-1728 

In the Supreme Court of the United States 

UNITED STATES OF AMERICA, PETITIONER 

v. 

FREDERICK W. VOPPER, ET AL. 

ON PETITION FOR A WRIT OF CERTIORARI 
TO THE UNITED STATES COURT OF APPEALS 
FOR THE THIRD CIRCUIT 

PETITION FOR A WRIT OF CERTIORARI 

SETH P. WAXMAN 

Solicitor General 

Counsel of Record 

DAVID W. OGDEN 

Acting Assistant Attorney 

General 

MICHAEL DREEBEN 

Deputy Solicitor General 

JEFFREY A. LAMKEN 

Assistant to the Solicitor 

General 

DOUGLAS N. LETTER 
SCOTT R. MCINTOSH 

Attorneys 

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

QUESTION PRESENTED 

Whether the imposition of civil liability under 18 
U.S.C. 2511(1)(c) and (d) for using or disclosing the con- 
tents of illegally intercepted communications, where 
the defendant knows or has reason to know that the 
interception was unlawful but is not alleged to have 
participated in or encouraged it, violates the First 
Amendment to the United States Constitution. 

(I) 

II 

PARTIES TO THE PROCEEDINGS BELOW 

Petitioner United States of America appeared as an 
intervenor of right in the court of appeals pursuant to 
28 U.S.C. 2403(a). Respondents Frederick W. Vopper, 
a/k/a Fred Williams; Keymarket of NEPA, Inc., d/b/a 
WILK Radio; Lackazerne, Inc., d/b/a WGBI Radio; and 
Jack Yocum were defendants in the district court and 
appellants in the court of appeals. Petitioners Gloria 
Bartnicki and Anthony F. Kane, Jr., were plaintiffs in 
the district court and appellees in the court of appeals. 

TABLE OF CONTENTS 

Page 

Opinions below ............................................................................... 
1 

Jurisdiction ...................................................................................... 1 

Constitutional and statutory provisions involved ................... 
2 

Statement ........................................................................................ 2 

Reasons for granting the petition ............................................... 
8 

Conclusion ....................................................................................... 21 

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

Appendix B ................................................................................... 59a 

Appendix C ................................................................................... 69a 

Appendix D ................................................................................... 70a 

Appendix E ................................................................................... 75a 

Appendix F ................................................................................... 77a 

Appendix G ................................................................................... 80a 

Appendix H ................................................................................... 82a 

Appendix I ..................................................................................... 84a 

TABLE OF AUTHORITIES 

Cases: 

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

1999) ................................................................................. passim 

City of Erie v. Pap’s A.M., 120 S. Ct. 1382 (2000) ........... 

11 

Dorris v. Absher, 959 F. Supp. 813 (M.D. Tenn. 

1997) ......................................................................................... 11 

Edwards v. State Farm Ins. Co., 833 F.2d 535 

(5th Cir. 1987) ......................................................................... 

3 

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

7, 17, 18 

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

10, 11 

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

2, 8, 

10, 14 

Harte-Hanks Communications, Inc. v. Con- 
naughton, 491 U.S. 657 (1989) ............................................ 
10 

Lam Lek Chong v. United States DEA, 929 F.2d 

729 (D.C. Cir. 1991) ................................................................ 11 

(III) 

IV 

Cases—Continued: Page 

Landmark Communications, Inc. v. Virginia, 435 

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

18 

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

13 

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

(2000) ........................................................................................ 14 

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

13 

Shubert v. Metrophone, Inc., 898 F.2d 401 (3d 

Cir. 1990) ............................................................................... 

3, 19 

Smith v. Daily Mail Publ’g Co., 443 U.S. 97 

(1979) ................................................................................ 

6, 17, 18 

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

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

11, 12 

United States v. Bolin, 423 F.2d 834 (9th Cir.), 

cert. denied, 398 U.S. 954 (1970) ......................................... 

13 

United States v. Gardner, 516 F.2d 334 (7th Cir.), 

cert. denied, 423 U.S. 861 (1975) ......................................... 

13 

United States v. O’Brien, 391 U.S. 367 (1968) .............. 

11, 12 

Waters v. Churchill, 511 U.S. 661 (1994) ........................... 

15 

Constitution and statutes: 

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

2, 5, 6, 8, 10, 16, 17 

Electronic Communications Privacy Act of 1986, 

Pub. L. No. 99-508, 100 Stat. 1848 ...................................... 

3 

Omnibus Crime Control and Safe Streets Act of 

1968, Pub. L. No. 90-351, Tit. III, 82 Stat. 211 (18 

U.S.C. 2510 et seq.) ................................................................ 

2 

§ 801(b), 82 Stat. 211 ........................................................ 

2 

§ 802, 82 Stat. 212 ............................................................. 

2 

18 U.S.C. 2510(1) ......................................................... 

3 

18 U.S.C. 2510(12) (1994 & Supp. IV 1998) ............ 

2 

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

2, 9, 10 

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

passim 

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

passim 

18 U.S.C. 2511(2) ......................................................... 

2 

18 U.S.C. 2511(4) ......................................................... 4 

V 

Statutes—Continued: Page 

18 U.S.C. 2511(5) ......................................................... 

4 

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

3 

18 U.S.C. 2516 (1994 & Supp. IV 1998) ................... 

2 

18 U.S.C. 2518 (1994 & Supp. IV 1998) ................... 

2 

18 U.S.C. 2520 .............................................................. 

5 

18 U.S.C. 2520(a).......................................................... 

4 

18 U.S.C. 2520(b).......................................................... 

4 

18 U.S.C. 2520(c) .......................................................... 

4 

28 U.S.C. 1292(b) ...................................................................... 

6 

28 U.S.C. 2403(a) ...................................................................... 

6 

18 Pa. Cons. Stat. Ann. (West 1983): 

§§ 5701 et seq. ..................................................................... 

5 

§ 5725 (& Supp. 1999) ....................................................... 

5 

Miscellaneous: 

CERT Coordination Center, Software Engineering 

Institute, Carnegie Mellon University, Report to the 
President’s Commission on Critical Infrastructure 
Protection (Jan. 1997) ........................................................... 

20 
15 Encyclopedia of Telecommunications (Fritz E. 

Froehlich & Allen Kent eds. 1998) ..................................... 

20 

S. Rep. No. 1097, 90th Cong., 2d Sess. (1968) ........ 
2, 3, 11, 15 

S. Rep. No. 541, 99th Cong., 2d Sess. (1986) ........................ 3 

In the Supreme Court of the United States 

No. 99-1728 

UNITED STATES OF AMERICA, PETITIONER 

v. 

FREDERICK W. VOPPER, ET AL. 

ON PETITION FOR A WRIT OF CERTIORARI 
TO THE UNITED STATES COURT OF APPEALS 
FOR THE THIRD CIRCUIT 

PETITION FOR A WRIT OF CERTIORARI 

The Solicitor General, on behalf of the United States 
of America, petitions for a writ of certiorari to review 
the judgment of the United States Court of Appeals for 
the Third Circuit in this case. 

OPINIONS BELOW 

The opinion of the court of appeals (App., infra, 1a- 
58a) is reported at 200 F.3d 109. The opinions and 
orders of the district court (App., infra, 59a-68a, 69a, 
70a-74a, 75a-76a) are unreported. 

JURISDICTION 

The judgment of the court of appeals was entered on 
December 27, 1999. The petitions for rehearing were 
denied on February 25, 2000 (App., infra, 82a-83a). The 
jurisdiction of this Court is invoked under 28 U.S.C. 
1254(1). 

(1) 

2 

CONSTITUTIONAL AND STATUTORY 
PROVISIONS INVOLVED 

The First Amendment to the United States Con- 
stitution and the relevant provisions of Title III of the 
Omnibus Crime Control and Safe Streets Act of 1968, 
as amended, 18 U.S.C. 2510 et seq., are set forth in the 
Appendix at App., infra, 84a-91a. 

STATEMENT 

1. Title III of the Omnibus Crime Control and Safe 
Streets Act of 1968, as amended, 18 U.S.C. 2510 et seq. 
(Title III), is a “comprehensive scheme for the regula- 
tion of wiretapping and electronic surveillance,” Gel- 
bard v. United States, 408 U.S. 41, 46 (1972), and is 
designed to “protect effectively the privacy of wire and 
oral communications.” Pub. L. No. 90-351, Tit. III, 
§ 801(b), 82 Stat. 211 (Congressional findings). See also 
S. Rep. No. 1097, 90th Cong., 2d Sess. 66 (1968) (1968 
Senate Report); Gelbard, 408 U.S. at 48. 

a. Consistent with that goal, Title III broadly pro- 
hibits the interception of wire, oral, and electronic 
communications except where authorized under Title 
III itself. 18 U.S.C. 2511(1)(a). It also sets forth the 
procedures that must be employed, and the substantive 
criteria that must be met, before a wiretap or other 
form of electronic surveillance may be authorized under 
Title III. 18 U.S.C. 2516, 2518 (1994 & Supp. IV 1998). 
See also 18 U.S.C. 2511(2). 

As enacted in 1968, Title III applied only to wire and 
oral communications. See Tit. III, § 802, 82 Stat. 212. 
In 1986, however, Congress amended Title III to cover 
the electronic transmission of non-voice data such as 
electronic mail and other Internet communications, see 
18 U.S.C. 2510(12) (1994 & Supp. IV 1998), and to 
clarify that Title III extends to communications on cel- 

3 

lular and other wireless telephone systems, see 18 
U.S.C. 2510(1). See also Electronic Communications 
Privacy Act of 1986 (ECPA), Pub. L. No. 99-508, 100 
Stat. 1848; S. Rep. No. 541, 99th Cong., 2d Sess. 1-3, 7-8, 
11 (1986).1 

b. Because the interception of communications is 
generally a surreptitious and difficult-to-detect enter- 
prise, the fact or source of such an invasion “[a]ll too 
often * * * will go unknown.” 1968 Senate Report 69; 
see also id. at 96 (“[U]nlawful electronic surveillance is 
typically a clandestine crime.”). In part for that reason, 
Congress determined that merely prohibiting unau- 
thorized surveillance itself would not be sufficient. Id. 
at 69. Instead, Congress concluded that “[o]nly by 
striking at all aspects of the problem can privacy be 
adequately protected.” Ibid. 

Accordingly, Congress accompanied the prohibition 
on unauthorized interceptions with restrictions on the 
use of the fruits of such invasions. 1968 Senate Report 

69. See, e.g., 18 U.S.C. 2515 (unlawfully intercepted 
communications inadmissible as evidence). Section 
2511(1)(c) makes it unlawful for any person to “inten- 
tionally disclose[], or endeavor[] to disclose, to any 
other person the contents of any wire, oral, or elec- 
tronic communication” if the person “know[s] or ha[s] 
reason to know” that it “was obtained through the 
interception of a wire, oral, or electronic communication 
in violation of this subsection.” Section 2511(1)(d) 

1 Before the 1986 amendments, it was unsettled whether Title 
III’s definition of “wire communication” reached the radio portion 
of cellular telephone communications. See, e.g., Edwards v. State 
Farm Ins. Co., 833 F.2d 535, 538 (5th Cir. 1987). ECPA makes it 
clear that Congress intended to bring cellular phone communica- 
tions within the ambit of Title III. Shubert v. Metrophone, Inc., 
898 F.2d 401, 404-405 (3d Cir. 1990). 

4 

makes it unlawful for any person with the same 
knowledge or reason to know to “intentionally use[], or 
endeavor[] to use, the contents of any wire, oral, or 
electronic communication.” Title III thus proscribes all 
unauthorized uses of the contents of illegally inter- 
cepted communications, including but not limited to 
their disclosure, by persons knowing or having reason 
to know of their unlawful source. 

Violations of Title III may be prosecuted as criminal 
offenses or result in the imposition of civil fines. 18 
U.S.C. 2511(4) and (5). Title III also provides a private 
cause of action for any person whose communication is 
intercepted, disclosed, or used in violation of the stat- 
ute. 18 U.S.C. 2520(a). In a civil action under Title III, 
a court may award such “relief as may be appropriate,” 
including declaratory and injunctive relief, compensa- 
tory damages or prescribed statutory damages, and 
punitive damages “in appropriate cases.” 18 U.S.C. 
2520(b) and (c). 

2. This case arises out of the illegal interception of a 
private telephone conversation between Gloria Bart- 
nicki, the chief negotiator for a Pennsylvania teachers 
union, and Anthony Kane, the union’s president. The 
union was engaged in contract negotiations with a local 
school board, and Bartnicki and Kane held a confiden- 
tial telephone conversation in which they discussed the 
status of the negotiations. Bartnicki used a cellular 
telephone. App., infra, 3a. 

An unknown person illegally intercepted the conver- 
sation, recorded it, and anonymously delivered a copy of 
the recording to respondent Jack Yocum. Yocum was 
president of a local taxpayers association formed for the 
purpose of opposing the union’s bargaining demands. 
App., infra, 3a. Yocum listened to the recording, which 
contained inflammatory remarks regarding the school 

5 

board, and recognized the voices of Bartnicki and Kane. 
Ibid. He then gave the recording to respondent 
Frederick Vopper, the host of a local radio talk show. 
Id. at 3a-4a. Apparently, respondent Vopper retained 
the tape for over a month, id. at 55a-56a n.6 (Pollak, J., 
dissenting), but eventually played it on his program 
repeatedly, id. at 4a. That program was broadcast by 
two local radio stations, respondent station WILK and 
respondent station WGBI. Ibid. 

Bartnicki and Kane brought a civil action in the 
United States District Court for the Middle District of 
Pennsylvania against respondents Yocum and Vopper, 
as well as the respondent radio stations, under Title III, 
18 U.S.C. 2520, and a parallel provision of Pennsylvania 
law, 18 Pa. Cons. Stat. Ann. §§ 5701 et seq. (West 1983). 
Bartnicki and Kane asserted that respondents had 
disclosed and used the taped conversation, knowing or 
having reason to know that it was intercepted unlaw- 
fully, in violation of 18 U.S.C. 2511(1)(c) and (d), and in 
violation of corresponding provisions of Pennsylvania 
law, 18 Pa. Cons. Stat. Ann. § 5725 (West 1983 & Supp. 
1999). 

Respondents sought summary judgment, arguing 
that application of Title III (and the Pennsylvania elec- 
tronic eavesdropping statute) to their actions would 
violate the First Amendment. They asserted that, 
where a private conversation is illegally intercepted or 
recorded through electronic eavesdropping devices, 
third parties have a constitutional right to disclose the 
contents of that conversation if they were not responsi- 
ble for the initial interception and the conversation is 
deemed to involve matters of public significance. App., 
infra, 65a; see also id. at 74a. According to respon- 
dents, statutes that, like Title III, impose liability for 
such disclosures are subject to strict scrutiny and are 

6 

invalid under the First Amendment as applied here. Id. 
at 65a. 

The district court denied the motion, holding, inter 
alia, that the application of Title III to respondents 
does not violate the First Amendment. App., infra, 
65a-67a, 74a. The district court later certified the First 
Amendment issue for interlocutory appeal under 28 
U.S.C. 1292(b), App., infra, 75a-76a, and respondents 
filed a petition for interlocutory review, id. at 5a. 

3. Following oral argument on respondents’ inter- 
locutory appeal, the court of appeals notified the Attor- 
ney General that the constitutionality of the application 
of 18 U.S.C. 2511(1)(c) and (d) to the facts of this case 
was at issue and invited the United States to present 
its views. App., infra, 77a-79a; see 28 U.S.C. 2403(a).2 
The United States intervened and filed a brief to 
defend those provisions. App., infra, 5a. 

A divided panel of the court of appeals reversed. 
App., infra, 1a-58a. The court stated: “At issue is 
whether the First Amendment precludes imposition of 
civil damages for the disclosure of portions of a tape 
recording of an intercepted telephone conversation 
containing information of public significance when the 
defendants * * * played no direct or indirect role in 
the interception.” Id. at 2a. The court of appeals 
agreed with the United States that 18 U.S.C. 2511(1)(c) 
and (d), and the corresponding provisions of Pennsyl- 
vania law, are subject to intermediate rather than strict 

2 Under 28 U.S.C. 2403(a), federal courts are required to notify 
the Attorney General when the constitutionality of an Act of Con- 
gress is drawn into question in a federal suit to which the United 
States is not a party; and they are required to permit the United 
States to intervene “with all the rights of a party” to defend the 
constitutionality of the statute. 

7 

scrutiny. App., infra, 17a-28a.3 The court explained 
that, to the extent those provisions are designed to 
reinforce the underlying prohibition on unauthorized 
interceptions, they “are properly treated as content 
neutral.” Id. at 28a. The court, concluded, however, 
that those provisions do not satisfy intermediate scru- 
tiny when applied to “the use or disclosure of illegally 
intercepted information where there is no allegation 
that the defendants participated in or encouraged th[e] 
interception.” Id. at 42a. 

The court of appeals rejected the government’s con- 
tention that Title III’s bar on the use and dissemination 
of illegally intercepted conversations is necessary to 
diminish the demand for such materials. App., infra, 
33a-36a. “The connection between prohibiting third 
parties from using or disclosing” such communications 
and “preventing the initial interception,” the court of 
appeals stated, was too “indirect.” Id. at 33a. The gov- 
ernment’s interest in protecting privacy and ensuring 
public confidence, the court of appeals found, “can be 
reached by enforcement of existing provisions against 
the responsible parties rather than by imposing dam- 
ages on these defendants.” Id. at 35a. Finally, the 
court expressed concern that the media might be de- 
terred from publishing material not obtained in viola- 
tion of Title III by the possibility of liability where the 
information’s origin is unclear. Id. at 36a. 

3 The court of appeals rejected respondents’ claim that Smith v. 
Daily Mail Publishing Co., 443 U.S. 97 (1979), and Florida Star v. 
B.J.F., 491 U.S. 524 (1989), require the application of strict scru- 
tiny. Those cases, the court held, expressly decline to address the 
constitutionality of laws that, like Title III, proscribe the dissemi- 
nation of a communication that “has been acquired unlawfully by a 
newspaper or [by] a source.” App., infra, 13a (quoting Florida 
Star, 491 U.S. at 535 n.8). 

8 

Judge Pollak (Senior D.J., sitting by designation) 
dissented. App., infra, 42a-58a. Judge Pollak agreed 
with the majority’s conclusion that intermediate scru- 
tiny is appropriate, but he “part[ed] company” with the 
majority on the proper application of that standard to 
Title III. Id. at 47a (Pollak, J., dissenting). He ex- 
plained: “Unless disclosure is prohibited, there will be 
an incentive for illegal interceptions; and unless dis- 
closure is prohibited, the damage caused by an unlawful 
interception will be compounded. It is not enough to 
prohibit disclosure only by those who conduct the 
unlawful eavesdropping.” Id. at 50a-51a (quoting 
Boehner v. McDermott, 191 F.3d 463, 470 (D.C. Cir. 
1999)). Judge Pollak concluded that the “First Amend- 
ment values on which [respondents] take their stand 
are countered by privacy values sought to be advanced 
by Congress and the Pennsylvania General Assembly 
that are of comparable—indeed kindred—dimension.” 
App., infra, 58a. 

The United States and the plaintiffs filed petitions 
for rehearing en banc. The court denied rehearing en 
banc by a 6-5 vote; Judges Greenberg, Scirica, Nygaard, 
Alito, and Rendell would have granted rehearing en 
banc. App., infra, 82a-83a. 

REASONS FOR GRANTING THE PETITION 

The court of appeals has invalidated, as contrary to 
the First Amendment, a significant application of Title 
III’s “comprehensive scheme,” Gelbard v. United 
States, 408 U.S. 41, 46 (1972), for protecting the privacy 
of, and ensuring public confidence in the facilities used 
for, wire, oral, and electronic communications. Under 
18 U.S.C. 2511(1)(c) and (d), it is unlawful for any 
person to use or disclose the contents of a communica- 
tion intercepted in violation of Title III, if that person 

9 

knows or has reason to know that the communication 
was intercepted unlawfully. The court of appeals held 
those provisions unconstitutional as applied to anyone 
who did not participate in or encourage the initial illegal 
interception if the intercepted communication relates to 
a matter of public significance. App., infra, 37a, 42a. 

That conclusion is wrong. It is also inconsistent with 
the decision in Boehner v. McDermott, 191 F.3d 463 
(D.C. Cir. 1999), which rejected an almost indistinguish- 
able constitutional challenge. The Third Circuit’s deci- 
sion here, moreover, calls into question the constitu- 
tionality of numerous state statutes that contain pro- 
hibitions like those contained in Title III. And it 
undermines the comprehensive scheme Congress estab- 
lished to ensure public confidence in the security of 
private conversations. This Court’s review is therefore 
warranted.4 

1. The fundamental purpose of Title III is to protect 
the privacy of wire, oral, and electronic communica- 
tions. Title III’s restriction on the use of illegally 
intercepted communications, contained in 18 U.S.C. 
2511(1)(c) and (d), furthers that legislative goal in at 
least two ways. First, it reinforces Title III’s underly- 
ing prohibition on electronic surveillance, 18 U.S.C. 
2511(1)(a). Because no one can lawfully disclose or 
otherwise use a communication he knows to be the 
product of illegal wiretapping, there can be no “market” 
for illegally intercepted communications. Title III thus 

4 The plaintiffs below have filed a petition for a writ of certio- 
rari seeking review of the judgment of the court of appeals. Bart- 
nicki v. Vopper, No. 99-1687 (filed Apr. 19, 2000). The defendant in 
Boehner v. McDermott has filed a petition for a writ of certiorari 
seeking review of the District of Columbia Circuit’s decision in that 
case. See McDermott v. Boehner, No. 99-1709 (filed Apr. 25, 2000). 

10 

reduces the incentive to engage in unlawful wire- 
tapping (and other prohibited forms of electronic 
surveillance) in the first instance. See Boehner, 191 
F.3d at 469-470; Fultz v. Gilliam, 942 F.2d 396, 401 (6th 
Cir. 1991) (18 U.S.C. 2511(1)(c) and (d) “strengthen[s] 
[Section 2511(1)(a)] by denying the wrongdoer the 
fruits of his conduct”). 

Second, when illegal surveillance does take place, the 
challenged provisions protect against the additional 
injury that occurs when the contents of intercepted 
communications are exploited by third parties. As this 
Court has observed, an “invasion of privacy is [not] 
over and done with” when a communication is inter- 
cepted, but instead is compounded when the communi- 
cation is disclosed or otherwise used without the per- 
mission of the parties to the conversation. Gelbard, 408 
U.S. at 51-52. 

The use-and-disclosure prohibitions of Title III thus 
offer members of the public the assurance that they can 
speak freely with one another through private means 
—whether by telephone or in person in the privacy of 
their homes—without having their confidential conver- 
sations disclosed or otherwise exploited by unknown 
persons. The provisions thus further the fundamental 
interest in “the free exchange of ideas enshrined in the 
First Amendment.” Harte-Hanks Communications, 
Inc. v. Connaughton, 491 U.S. 657, 686 (1989). 

a. As the Third Circuit here and the District of 
Columbia Circuit in Boehner, supra, both recognized, 
when Title III’s restrictions are applied to the dis- 
closure of illegally intercepted communications by per- 
sons other than the individuals who intercepted them, 
they are subject to intermediate rather than strict 
scrutiny under the First Amendment. App., infra, 28a; 
Boehner, 191 F.3d at 467. Two features of Section 

11 

2511(1)(c) and (d) support that conclusion. First, Title 
III does not single out speech or other expressive 
activities, but rather establishes a general prohibition 
on the use of illegally intercepted communications; that 
prohibition includes, but is not confined to, expressive 
uses like disclosure. Boehner, 191 F.3d at 467-468. See 
United States v. O’Brien, 391 U.S. 367 (1968).5 Second, 
Title III is content-neutral. It does not predicate 
liability on “the[] content” of the intercepted commu- 
nications, “but instead [on] the process by which they 
are collected.” Lam Lek Chong v. United States DEA, 
929 F.2d 729, 733 (D.C. Cir. 1991) (emphasis added). 
Where a communication is acquired through illegal 
electronic surveillance, Title III bars disclosure and 
other uses, regardless of subject matter or viewpoint. 

Title III’s use prohibitions thus are not the product of 
the government’s “agreement or disagreement with the 
message” conveyed. Turner Broad. Sys., Inc. v. FCC, 
512 U.S. 622, 642-643 (1994) (brackets omitted). Nor do 
they reflect a legislative desire to conceal from the 
public information on particular subjects. Instead, 
because Title III contains “generally applicable, content 
neutral prohibitions on conduct that create incidental 
burdens on speech,” Boehner, 191 F.3d at 467, it falls 
squarely within the ambit of this Court’s intermediate 

5 Title III’s ban on the use of illegally intercepted communica- 
tions thus applies with equal force whether the defendant uses the 
communication for wholly non-expressive purposes, 18 U.S.C. 
2511(1)(d), such as trading stocks or developing a new product, see, 

e.g., 1968 Senate Report 69 (use of intercepted communications 
regarding trade secrets or corporate and labor-management trans- 
actions); Fultz, 942 F.2d at 400 n.4 (extortion); Dorris v. Absher, 
959 F. Supp. 813, 815-817 (M.D. Tenn. 1997) (workplace discipline), 
or instead uses it for expressive purposes such as publication, 18 
U.S.C. 2511(1)(c). 

12 

scrutiny precedents. See City of Erie v. Pap’s A.M., 
120 S. Ct. 1382, 1391 (2000) (“If the governmental 
purpose in enacting the regulation is unrelated to the 
suppression of expression, then the regulation need 
only satisfy the ‘less stringent’ standard from O’Brien,” 
but “[i]f the government interest is related to the 
content of the expression, * * * then the regulation 
falls outside the scope of the O’Brien test.”); Turner, 
512 U.S. at 661 (provisions subject to intermediate 
scrutiny where they “do not pose such inherent dangers 
to free expression, or present such potential for 
censorship or manipulation, as to justify application of 
the most exacting level of First Amendment scrutiny”). 

Under the intermediate scrutiny framework of 
O’Brien, a statute’s application is constitutional if the 
statute “furthers an important or substantial govern- 
mental interest; if the governmental interest is unre- 
lated to the suppression of free expression; and if the 
incidental restriction on alleged First Amendment free- 
doms is no greater than is essential to the furtherance 
of that interest.” O’Brien, 391 U.S. at 377; Turner, 512 
U.S. at 662. Title III meets that test.6 Its underlying 
goal of protecting and maintaining the confidentiality of 
wire, oral, and electronic communications is manifestly 
legitimate and substantial, and unrelated to “the sup- 
pression of free expression.” See Boehner, 191 F.3d at 
468. By barring the use of unlawfully intercepted com- 
munications, Section 2511(1)(c) and (d) reinforces Title 
III’s prohibition on illicit surveillance and protects 
against the additional injury that arises when illegally 
intercepted information is put to unauthorized uses. 
191 F.3d at 468-469. The statute thereby promotes free 

6 Even if strict scrutiny were applicable, Title III’s prohibitions 
would pass constitutional muster. 

13 

expression by assuring individuals that the law will 
protect the confidentiality of their private conversa- 
tions. In addition, Title III’s use restrictions are not 
unnecessarily broad. They apply only to those who 
know or have reason to know of the unlawful source. 
And only by comprehensively prohibiting such uses of 
illegally intercepted communications can the interests 
served by Title III be vindicated. 191 F.3d at 470; p. 3, 
supra (legislative findings). 

b. The Third Circuit’s rationale for concluding that 
Section 2511(1)(c) and (d) fails intermediate scrutiny is 
unsound. That court believed that the proposition that 
Title III’s use-and-disclosure restrictions deter unlaw- 
ful interceptions, by curtailing the incentive to conduct 
them in the first instance, is an “ipse dixit” that rests on 
“little more than assertion and conjecture.” App., infra, 
33a-34a. But the same logic has long been accepted as a 
justification for statutes that prohibit the knowing 
possession and sale of stolen property. See, e.g., United 
States v. Gardner, 516 F.2d 334, 349 (7th Cir.), cert. 
denied, 423 U.S. 861 (1975); United States v. Bolin, 423 
F.2d 834, 838 (9th Cir.), cert. denied, 398 U.S. 954 
(1970). This Court itself relied on a similar rationale in 
New York v. Ferber, 458 U.S. 747, 760 (1982), where it 
held that “[t]he most expeditious if not the only practi- 
cal method” of effectuating a ban on the production of 
child pornography “may be to dry up the market for 
this material” by imposing sanctions on possession, 
advertising, and distribution.7 The court of appeals also 

7 Given the immediate connection between the use-and-dis- 
closure restrictions and their effect on incentives to conduct illegal 
interceptions, and this Court’s recognition of similiar connections 
in cases such as Ferber and Osborne v. Ohio, 495 U.S. 103, 110 
(1990), the government does not need to provide evidentiary 
“proof ” for the obvious proposition that more surveillance will take 

14 

erred in failing to take into account the function of the 
use-and-disclosure ban in preventing aggravation of the 
initial invasion of privacy. See Gelbard, 408 U.S. at 51- 

52. The court apparently discounted that purpose 
because of its view that preventing “the injury 
associated with the disclosure of private facts” is an 
interest that would make the provisions at issue 
“subject to strict scrutiny as a content-based 
regulation.” App., infra, 27a. But the use-or-disclosure 
ban protects the privacy of communications based on 
the means by which they were unlawfully acquired; it 
contains no content criteria at all. 

The court of appeals likewise erred in its suggestion 
that the objectives of the statute “can be reached by 
enforcement of existing provisions against the responsi- 
ble parties,” i.e., by punishing only the persons who 
engage in illegal wiretapping and electronic surveil- 
lance. App., infra, 35a. That is not a practicable option. 
By its very nature, electronic surveillance is a surrepti- 
tious enterprise. One who employs unlawful wiretaps 
can effectively insulate himself from liability by con- 
veying the intercepted communication to third parties 
anonymously. As the District of Columbia Circuit has 
pointed out, criminals who bug residences, intercept 
and record private phone calls, and engage in other 
forms of unlawful electronic surveillance “can literally 
launder illegally intercepted information.” Boehner, 
191 F.3d at 471. In this very case neither the private 
plaintiffs nor the United States can enforce Title III 

place if eavesdroppers enjoy an unrestricted market for the fruits 
of their labors. Cf. Nixon v. Shrink Mo. Gov’t PAC, 120 S. Ct. 897, 
906 (2000) (“The quantum of empirical evidence needed to satisfy 
heightened judicial scrutiny of legislative judgments will vary up 
or down with the novelty and plausibility of the justification 
raised.”). 

15 

against the party responsible for the illegal interception 
because that party is unknown. “[E]nforcement of 
existing provisions against the responsible parties,” 
App., infra, 35a, is therefore insufficient to deter illegal 
surveillance. Instead, as Congress recognized when it 
enacted Title III, “[o]nly by striking at all aspects of the 
problem can privacy be adequately protected.” 1968 
Senate Report 69. Accord Boehner, 191 F.3d at 471 
(invalidation of Section 2511(1)(c) would “render the 
government powerless to prevent disclosure of private 
information” because criminals can both intercept and 
disclose communications anonymously). 

The court of appeals expressed concern that the 
threat of liability under Title III might deter the news 
media from disseminating the contents of communica- 
tions that were not illegally intercepted. App., infra, 
36a-37a. In light of Title III’s scienter requirements, 
however, that “chilling” concern is overstated. Liabil- 
ity attaches under 18 U.S.C. 2511(1)(c) and (d) only 
when a defendant “know[s] or ha[s] reason to know” 
that the communication was intercepted in violation of 
Title III. Thus, the recipient who knows or ignores 
evidence that the proffered information was obtained 
unlawfully may face liability; but the party without 
such knowledge or reason to know does not—even if 
the communication in fact was illegally intercepted.8 

2. The Third Circuit’s decision in this case is incon- 
sistent with the District of Columbia Circuit’s recent 

8 To the extent there may be remaining concerns about the 
potential chilling effect of the statute, those concerns can be ad- 
dressed by, for example, requiring clear and convincing proof in a 
civil case and providing for de novo appellate review—approaches 
applied in other First Amendment settings. See App., infra, 56a- 
57a (Pollak, J., dissenting); see generally Waters v. Churchill, 511 
U.S. 661, 669-671 (1994) (plurality opinion). 

16 

decision in Boehner, supra, which rejected a virtually 
identical First Amendment challenge to the consti- 
tutionality of 18 U.S.C. 2511(1)(c) and a parallel Florida 
statute. In Boehner, the District of Columbia Circuit, 
like the Third Circuit in this case, subjected Section 
2511(1)(c) to intermediate scrutiny. 191 F.3d at 466- 
467. But, unlike the Third Circuit, the District of 
Columbia Circuit concluded that Section 2511(1)(c) 
could constitutionally be applied to the non-media 
defendant in that case, who had disclosed the contents 
of intercepted conversations concerning matters of 
public interest, even though he did not participate in 
the initial interception. See 191 F.3d at 467-470. See 
also id. at 480 (Ginsburg, J., concurring) (“I agree that 
the statute passes [intermediate scrutiny] for the 
reasons given in the opinion for the Court.”). 

The court of appeals in this case attempted to 
distinguish Boehner, pointing out that Boehner did not 
involve media defendants, whereas this case does. 
App., infra, 40a; 191 F.3d at 407, 477-478 (reserving the 
issue of media liability). That difference does not dis- 
tinguish Boehner, however. As the Third Circuit ac- 
knowledged, respondent Yocum in this case is not a 
media defendant. To the contrary, he “technically 

* * * stands in the same position as” the defendant in 
Boehner, i.e., as a non-press defendant who served “as 
the source but not the interceptor.” App., infra, 40a. 
See also id. at 46a n.3 (Pollak, J., dissenting) (respon- 
dent Yocum’s role “seems analogous to that of ” the 
Boehner defendant); id. at 37a n.7 (Pollak, J., dis- 
senting) (presence of media respondents in this case 
does not enhance non-media respondent Yocum’s 
rights). In any event, the court in Boehner stated that 
“the press has no greater First Amendment rights than 

17 

anyone else.” 191 F.3d at 477 n.20; accord, id. at 483 
(Sentelle, J. dissenting). 

The Third Circuit also suggested that respondent 
Yokum was not similarly situated to the individual 
defendant in Boehner because that defendant (Rep- 
resentative James McDermott) may have been “more 
than an innocent conduit” at the time he received the 
illegally recorded tape from those who conducted the 
interception. App., infra, 40a. But neither individual 
defendant (Yokum or McDermott) was alleged to have 
had “participated in or encouraged that [unlawful] 
interception”—the Third Circuit’s own criteria for re- 
moving First Amendment protection (id. at 42a)—and 
both defendants were alleged to have had knowledge or 
reason to know of the illegal interception at the time of 
the challenged use or disclosure. There is thus no 
sound basis in the facts of the two cases to justify their 
divergent outcomes. Where, as here, courts of appeals 
have reached different conclusions regarding the consti- 
tutionality of the application of an Act of Congress to 
materially indistinguishable facts, this Court’s inter- 
vention is warranted. 

3. The court of appeals’ decision addresses an impor- 
tant and unresolved issue of constitutional law. This 
Court has never squarely decided “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.” Florida Star v. B.J.F., 491 U.S. 
524, 535 n.8 (1989) (emphasis added); Boehner, 191 F.3d 
at 472-473 (Randolph, J.) (explaining that the Court’s 
cases “do not ‘settle’ ” the issue); App., infra, 13a-14a 
(similar). In Smith v. Daily Mail Publishing Co., 443 
U.S. 97, 104 (1979), this Court did state that the 
application of statutes to punish the disclosure of “law- 

18 

fully obtained,” truthful information of public signifi- 
cance generally must be justified by a state interest of 
the highest order. But in Florida Star, this Court 
clarified that Congress and the States may, to protect 
the privacy of confidential information held by private 
parties, “under some circumstances forbid its noncon- 
sensual acquisition, thereby bringing outside of the 
Daily Mail principle the publication of any information 
so acquired.” Florida Star, 491 U.S. at 534. The chal- 
lenged provisions of Title III do precisely that, i.e., they 
regulate the use of unlawfully intercepted communi- 
cations. 

Where this Court has invalidated statutes barring 
the publication of truthful information, the statutes not 
only extended to information that was “lawfully 
obtained” in the first instance, but also targeted speech, 
on the basis of its subject matter, in order to foreclose 
public knowledge of a particular type of information. 
See, e.g., Florida Star, 491 U.S. at 534 (prohibition on 
publication of the names of victims of sexual assault); 
Daily Mail, 443 U.S. at 99 (identity of juvenile charged 
as an offender in West Virginia courts). And those 
cases involved information that either came from the 
government itself, Florida Star, 491 U.S. at 534 (infor- 
mation provided by police), or concerned governmental 
proceedings, Daily Mail, 443 U.S. at 99 (charging of 
juvenile in West Virginia courts). See also Landmark 
Communications, Inc. v. Virginia, 435 U.S. 829, 838- 
839 (1978) (publication bar with respect to judicial 
discipline proceedings). Title III, in contrast, is limited 
to the contents of communications that were illegally 
obtained; it prohibits all uses of such communications, 
rather than singling out expression or publication; it 
does not predicate liability on content or subject 
matter; it does not seek to suppress public knowledge 

19 

about particular issues or subjects; and it is not aimed 
at information from or concerning the government. 
This Court should determine whether such a statute is 
constitutional. 

The constitutionality of Title III and statutes like it is 
a matter of considerable import. Forty-four States and 
the District of Columbia have laws that, like Title III 
and the Pennsylvania statute at issue here, bar “not 
only the interception of electronic communications, but 
also the disclosure of those communications by persons 
acting under color of law.” Boehner, 191 F.3d 468 n.6; 
see App., infra, 53a & n. 5 (Pollak, J., dissenting) (not- 
ing numerous statutes that “closely parallel the 
provisions of ” Title III, and declaring that “in the two 
centuries of our constitutional history there cannot 
have been more than a handful of decisions * * * 
which, in the exercise of the awesome power of judicial 
review, have cut so wide a swath”). Similar First 
Amendment challenges are being pursued in at least 
two other pending cases: Peavy v. WFAA TV, Inc., No. 
99-10272 (5th Cir. argued Apr. 3, 2000), and Quigley v. 
Rosenthal, No. 94-N-2782 (D. Colo.). And the volume of 
communications affected by those statutes and the 
Third Circuit’s decision is rapidly increasing. As the 
technologies for carrying private communications pro- 
liferate and their usage increases, so too have the 
means that can be used to intercept them.9 

9 Electronic mail over the Internet and wireless telephone 
usage have both experienced exponential growth in recent years. 
Because cellular handsets send and receive encoded radio signals 
that can be intercepted and deciphered “by regular radio scanners 
modified to intercept cellular calls,” calls made on such handsets 
are easier to intercept than those made on traditional, wireline 
telephones. Shubert v. Metrophone, Inc., 898 F.2d 401, 405 (3d Cir. 
1990). Electronic mail transmitted over the Internet is likewise 

20 

The Third Circuit’s decision decreases the security of 
such means of communications. Under that decision, 
individuals must communicate at the risk that, if their 
conversation is unlawfully intercepted, anyone other 
than the wiretapper himself is free to disclose the con- 
tents of the conversation to the world. Without assur- 
ances that the law will effectively protect the con- 
fidentiality of their conversations, members of the 
public may be less willing to take advantage of the 
means of communication that are increasingly at their 
disposal. 

subject to unlawful interception by surreptitious means. See, e.g., 
“Security of the Internet,” 15 Encyclopedia of Telecom- 
munications 231, 236, 242 (Fritz E. Froehlich & Allen Kent eds. 
1998); CERT Coordination Center, Software Engineering Insti- 
tute, Carnegie Mellon University, Report to the President’s Com- 
mission on Critical Infrastructure Protection § 3.1.3 (Jan. 1997) 
(“Information (such as electronic mail * * * and other data) is 
sent from one computer to another [on the Internet] in a form 
easily readable by anyone connected to a part of the network 
joining the two systems together.”). 

21 

CONCLUSION 

The petition for a writ of certiorari should be 
granted. 

Respectfully submitted. 

SETH P. WAXMAN 

Solicitor General 

DAVID W. OGDEN 

Acting Assistant Attorney 

General 

MICHAEL DREEBEN 

Deputy Solicitor General 

JEFFREY A. LAMKEN 

Assistant to the Solicitor 

General 

DOUGLAS N. LETTER 
SCOTT R. MCINTOSH 

Attorneys 

APRIL 2000 

APPENDIX A 

UNITED STATES COURT OF APPEALS 
THIRD CIRCUIT 

No. 98-7156 

GLORIA BARTNICKI AND ANTHONY F. KANE, JR. 

v. 

FREDERICK W. VOPPER, A/K/A FRED WILLIAMS; 
KEYMARKET OF NEPA, INC., D/B/A WILK RADIO; 
LACKAZERNE INC., D/B/A WGBI RADIO; JANE DOE; 
JOHN DOE; JACK YOCUM 

FREDERICK W. VOPPER, 

A/K/A FRED WILLIAMS; KEYMARKET OF NEPA, INC., 

D/B/A WILK RADIO; LACKAZERNE, INC., D/B/A WGBI 
RADIO; JACK YOCUM, APPELLANTS, 

UNITED STATES OF AMERICA, INTERVENOR. 

[Argued: Oct. 5, 1998. 
Decided: Dec. 27, 1999] 

Before: SLOVITER and COWEN, Circuit Judges, and 
POLLAK,* District Judge 

* Hon. Louis H. Pollak, United States District Court for the 
Eastern District of Pennsylvania, sitting by designation. 

(1a) 

2a 

OPINION OF THE COURT 

SLOVITER, Circuit Judge. 

At issue is whether the First Amendment precludes 
imposition of civil damages for the disclosure of por- 
tions of a tape recording of an intercepted telephone 
conversation containing information of public signifi- 
cance when the defendants, two radio stations, their 
reporter, and the individual who furnished the tape 
recording, played no direct or indirect role in the 
interception. 

I. 

BACKGROUND 

A. 

From the beginning of 1992 until the beginning of 
1994, Wyoming Valley West School District was 
in contract negotiations with the Wyoming Valley 
West School District Teachers’ Union (the “Teachers’ 
Union”) over the terms of the teachers’ new contract. 
The negotiations, which were markedly contentious, 
generated significant public interest and were fre- 
quently covered by the news media. 

Plaintiffs Gloria Bartnicki and Anthony F. Kane, Jr., 
as well as defendant Jack Yocum, all were heavily 
involved in the negotiating process. Bartnicki was the 
chief negotiator on behalf of the Teachers’ Union. Kane, 
a teacher at Wyoming Valley West High School, served 
as president of the local union. Yocum served as pres- 

3a 

ident of the Wyoming Valley West Taxpayers’ Asso- 
ciation, an organization formed by local citizens for the 
sole purpose of opposing the Teachers’ Union’s pro- 
posals. 

In May of 1993, Bartnicki, using her cellular phone, 
had a conversation with Kane. They discussed whether 
the teachers would obtain a three-percent raise, as 
suggested by the Wyoming Valley West School Board, 
or a six-percent raise, as suggested by the Teachers’ 
Union. In the course of their phone conversation, Kane 
stated: 

If they’re not going to move for three percent, we’re 
gonna have to go to their, their homes . . . to blow 
off their front porches, we’ll have to do some work 
on some of those guys . . . . Really, uh, really and 

truthfully, because this is, you know, this is bad 
news (undecipherable) The part that bothers me, 
they could still have kept to their three percent, but 
they’re again negotiating in the paper. This news- 
paper report knew it was three percent. What they 
should have said, ‘we’ll meet and discuss this.’ You 
don’t discuss the items in public. 

App. at 35-36. Bartnicki responded, “No,” and, Kane 
continued, “You don’t discuss this in public . . . . 

Particularly with the press.” App. at 36. 

This conversation, including the statements quoted 
above, was intercepted and recorded by an unknown 
person, and the tape left in Yocum’s mailbox. Yocum 
retrieved the tape, listened to it, and recognized the 
voices of Bartnicki and Kane. He then gave a copy of 

4a 

the tape to Fred Williams, also known as Frederick W. 
Vopper, of WILK Radio and Rob Neyhard of WARM 
Radio, both local radio stations. Williams repeatedly 
played part of the tape on the air as part of the Fred 
Williams Show, a radio news/public affairs talk show 
which is broadcast simultaneously over WILK Radio 
and WGBI-AM. The tape was also aired on some 
local television stations and written transcripts were 
published in some newspapers. 

B. 

Bartnicki and Kane sued Yocum, Williams, WILK 
Radio, and WGBI Radio (hereafter “media defendants”) 
under both federal and state law. They based their 
federal claims on Title III of the Omnibus Crime Con- 
trol and Safe Streets Act of 1968, as amended by the 
Electronic Communications Privacy Act of 1986, 28 
U.S.C. § 2510 et seq., and their state claims on the 
Pennsylvania Wiretapping and Electronic Surveillance 
Control Act, 18 Pa. Cons. Stat. § 5701 et seq. As relief, 
Bartnicki and Kane sought (1) actual damages in excess 
of $50,000, (2) statutory damages under 18 U.S.C. 
§ 2520(c)(2), (3) liquidated damages under 18 Pa. Cons. 
Stat. § 5725(a)(1), (4) punitive damages, and (5) at- 
torneys’ fees and costs. 

Bartnicki, Kane, and the defendants each moved for 
summary judgment. The District Court denied these 
motions on June 14, 1996 and denied defendants’ motion 
to reconsider on November 8, 1996, specifically holding 
that imposing liability on the defendants would not 
violate the First Amendment. 

5a 

The District Court subsequently certified two ques- 
tions as controlling questions of law: “(1) whether the 
imposition of liability on the media Defendants under 
the [wiretapping statutes] solely for broadcasting the 
newsworthy tape on the Defendant Fred Williams’ 
radio news/public affairs program, when the tape was 
illegally intercepted and recorded by unknown persons 
who were not agents of the Defendants, violates 
the First Amendment; and (2) whether imposition of 
liability under the aforesaid [wiretapping statutes] on 
Defendant Jack Yocum solely for providing the anony- 
mously intercepted and recorded tape to the media 
Defendants violates the First Amendment.” App. at 
388. Williams, WILK Radio, and WGBI Radio sub- 
sequently petitioned for permission to appeal. Yocum 
filed an answer to the petition in which he joined the 
media defendants’ request that we hear this appeal. 
We granted the petition by order dated February 26, 
1998. The Pennsylvania State Education Association 
submitted a brief as amicus curiae in support of the 
appellees, and the United States has intervened as of 
right pursuant to 28 U.S.C. § 2403. 

C. 

The District Court had jurisdiction to consider claims 
based on the Omnibus Crime Control and Safe Streets 
Act of 1968 pursuant to 28 U.S.C. § 1331. It had supple- 
mental jurisdiction pursuant to 28 U.S.C. § 1367 to 
consider claims based on the Pennsylvania Wiretapping 
and Electronic Surveillance Control Act. We have 
appellate jurisdiction to review the District Court’s 
substantive determination pursuant to 28 U.S.C. 
§ 1292(b). 

6a 

The scope of our review in a permitted interlocutory 
appeal is limited to questions of law raised by the 
underlying order. We are not limited to answering the 
questions certified, however, and may address any 
issue necessary to decide the appeal. See Dailey v. 
National Hockey League, 987 F.2d 172, 175 (3d Cir. 
1993). 

We review the grant or denial of a motion for sum- 
mary judgment de novo. See H.K. Porter Co. v. Penn- 
sylvania Ins. Guaranty Ass’n, 75 F.3d 137, 140 (3d Cir. 
1996). We are “required to apply the same test the 
district court should have utilized initially,” to view 
inferences to be drawn from the underlying facts in the 
light most favorable to the party opposing the motion, 
and to take the non-movant’s allegations as true when- 
ever these allegations conflict with those of the movant. 
Goodman v. Mead Johnson & Co., 534 F.2d 566, 573 (3d 
Cir. 1976). 

D. 

The Federal Omnibus Crime Control and Safe 
Streets Act of 1968 (the “Federal Wiretapping Act”) 
provides in relevant part: 

(1) Except as otherwise specifically provided in 
this chapter any person who— 

. . . . . 

(c) 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 inter- 

7a 

ception of a wire, oral, or electronic communi- 
cation in violation of this subsection; 

(d) intentionally uses, or endeavors to use, 
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 as provided in subsection (4) or 
shall be subject to suit as provided in subsection (5). 

18 U.S.C. § 2511. It continues: 

(a) In general.—Except as provided in section 
2511(2)(a)(ii), any person whose wire, oral, or elec- 
tronic communication is intercepted, disclosed, or 
intentionally used in violation of this chapter may in 
a civil action recover from the person or entity 
which engaged in the violation such relief as may be 
appropriate. 

18 U.S.C. § 2520. The Federal Wiretapping Act thus 
creates civil and criminal causes of action against those 
who intentionally use or disclose to another the con- 
tents of a wire, oral, or electronic communication, know- 
ing or having reason to know that the information was 
obtained in violation of the statute. 

The Pennsylvania Wiretapping and Electronic Sur- 
veillance Control Act (the “Pennsylvania Wiretapping 
Act”) is similar. It provides: 

Except as otherwise provided in this chapter, a 
person is guilty of a felony of the third degree if he: 

8a 

. . . . . 

(2) intentionally discloses or endeavors to disclose 
to any other person the contents of any wire, elec- 
tronic or oral communication, or evidence derived 
therefrom, knowing or having reason to know that 
the information was obtained through the inter- 
ception of a wire, electronic or oral communication; 
or 

(3) intentionally uses or endeavors to use the 
contents of any wire, electronic or oral communi- 
cation, or evidence derived therefrom, knowing or 
having reason to know that the information was 
obtained through the interception of a wire, elec- 
tronic or oral communication. 

18 Pa. Cons. Stat. § 5703. It further provides: 

(a) Cause of action.—Any person whose wire, 
electronic or oral communication is intercepted, dis- 
closed or used in violation of this chapter shall have 
a civil cause of action against any person who inter- 
cepts, discloses or uses or procures any other person 
to intercept, disclose or use, such communica- 
tion . . . . 

18 Pa. Cons. Stat. § 5725. The Pennsylvania Wiretapp- 
ing Act thus also creates civil and criminal causes of 
action based on the knowing or negligent use or 
disclosure of illegally intercepted material. We refer to 
the federal and state statutes at issue here as “The 
Wiretapping Acts.” 

9a 

Both Acts also explicitly authorize the recovery of 
civil relief. The Federal Wiretapping Act provides that 
a court may assess as damages whichever is the greater 
of— 

(A) the sum of the actual damages suffered by 
the plaintiff and any profits made by the violator as a 
result of the violation; or 

(B) statutory damages of whichever is the 
greater of $100 a day for each day of violation or 
$10,000. 

18 U.S.C. § 2520(c)(2). The Pennsylvania Wiretapping 
Act specifies that a successful plaintiff shall be entitled 
to recover from any such person: 

(1) Actual damages, but not less than liquidated 
damages computed at the rate of $100 a day for each 
day of violation, or $1,000, whichever is higher. 

(2) Punitive damages. 

(3) A reasonable attorney’s fee and other litigation 
costs reasonably incurred. 

18 Pa. Cons. Stat. § 5725(a). 

II. 

DISCUSSION 

A. 

As the District Court acknowledged and the parties 
do not dispute, the media defendants neither inter- 
cepted nor taped the conversation between Bartnicki 
and Kane. Indeed, the record does not disclose how or 
by whom the conversation was intercepted. The media 

10a 

defendants argued before the District Court that these 
facts preclude a court from finding them liable under 
the Wiretapping Acts. The District Court disagreed. 
It concluded that, “a violation of these acts can occur by 
the mere finding that a defendant had a reason to 
believe that the communication that he disclosed or 
used was obtained through the use of an illegal inter- 
ception.” Bartnicki v. Vopper, No. 94-1201, slip op. at 5 
(M.D. Pa. June 17, 1996). It further opined that such an 
interpretation of the statute “adheres to the purpose 
of the act which was to protect wire and oral 
communications and an individual’s privacy interest in 
such.” Id. The District Court concluded that genuine 
disputes of material fact remain regarding (1) whether 
the Bartnicki-Kane conversation was illegally inter- 
cepted, and if so (2) whether any or all of the defendants 
knew or had reason to know that that conversation was 
illegally intercepted. See id. at 5, 10. The parties do not 
challenge these holdings on appeal. 

Hence, this case does not involve the prohibitions of 
the Wiretapping Acts against the actual interception of 
wire communications. Nor does it involve any 
application of the Acts’ criminal provisions. Rather, 
this case focuses exclusively on the portions of the 
Wiretapping Acts that create causes of action for civil 
damages against those who use or disclose intercepted 
communications and who had reason to know that the 
information was received through an illegal inter- 
ception. 

The defendants argue that applying the damages 
provision of the Wiretapping Acts to hold them liable 
for disclosing the Bartnicki-Kane conversation violates 
the First Amendment. They contend that this case is 

11a 

controlled by the Supreme Court’s decisions in a series 
of cases addressing the tension between the First 
Amendment and the right to privacy. 

In the first of these cases, Cox Broadcasting Corp. v. 
Cohn, 420 U.S. 469, 95 S. Ct. 1029, 43 L.Ed.2d 328 
(1975), the Court considered a private right of action 
created by a Georgia statute making it a “misdemeanor 
to publish or broadcast the name or identity of a rape 
victim.” Id. at 472, 95 S. Ct. 1029. The Court was asked 
to decide whether Georgia could impose civil liability on 
a television broadcasting company, among others, for 
accurately broadcasting the name of a deceased, 17- 
year-old rape victim where the reporter obtained the 
information from official court records open to public 
inspection. 

In the next case, Landmark Communications, Inc. v. 
Virginia, 435 U.S. 829, 98 S. Ct. 1535, 56 L.Ed.2d 1 
(1978), the Court reviewed a Virginia statute that both 
provided for the confidentiality of judicial disciplinary 
proceedings and made it unlawful to divulge the 
identity of a judge subject to such proceedings prior to 
the filing of a formal complaint with the state’s highest 
court. The Supreme Court was asked to decide 
whether Virginia could criminally prosecute a news- 
paper for publishing accurate information about such 
proceedings where the newspaper received the infor- 
mation from a participant in the proceedings who had 
the right to receive the information but not the right to 
divulge it. See id. at 830, 98 S. Ct. 1535. 

Finally, in Smith v. Daily Mail Publishing Co., 443 
U.S. 97, 99 S. Ct. 2667, 61 L.Ed.2d 399 (1979), the Court 
considered a West Virginia statute “making it a crime 

12a 

for a newspaper to publish, without the written ap- 
proval of the juvenile court, the name of any youth 
charged as a juvenile offender.” Id. at 98, 99 S. Ct. 
2667. The Court was asked to decide whether West 
Virginia could prosecute two newspapers for publishing 
the name of a 14-year-old student who was accused of 
shooting and killing a 15-year-old classmate at the local 
junior high school. The newspapers had obtained the 
student’s name by interviewing witnesses at the school. 

The Supreme Court concluded that each of these 
attempts to punish or deter the press’s publication of 
truthful information was unconstitutional. The Smith 
Court, in summarizing the Court’s past cases, read 
them as suggesting at least two propositions: (1) “state 
action to punish the publication of truthful information 
seldom can satisfy constitutional standards,” and (2) “if 
a newspaper lawfully obtains truthful information about 
a matter of public significance then state officials may 
not constitutionally punish publication of the informa- 
tion, absent a need to further a state interest of the 
highest order.” 491 U.S. at 102, 103, 109 S. Ct. 2324; 
accord Florida Star v. B.J.F., 491 U.S. 524, 533-37, 109 
S. Ct. 2603, 105 L.Ed.2d 443 (1989) (adopting and ex- 
plaining the justification for the second Smith pro- 
position). 

The defendants contend that the information dis- 
closed about the Bartnicki-Kane conversation was 
lawfully obtained within the meaning of the Smith 
decision because the defendants in this case neither 
participated in the presumed interception nor violated 
any law by receiving the information. They conclude 
that the Wiretapping Acts may not be applied to hold 

13a 

them liable without first meeting the test of strict 
scrutiny. 

Bartnicki and Kane respond by arguing that the 
information at issue here was unlawfully obtained be- 
cause the original interception presumably was illegal. 
They conclude that applying the Acts to hold the 
defendants liable is constitutional without subjecting 
those statutes to any level of First Amendment scru- 
tiny. The parties thus assume that we should deter- 
mine the constitutionality of the Wiretapping Acts by 
first determining whether the information disclosed 
was “lawfully” or “unlawfully” obtained. 

Although we are cognizant of the importance of the 
Cox, Landmark, and Smith cases as background, we 
decline to read Smith as controlling here. The Supreme 
Court has explicitly repudiated any suggestion that 
Smith answers the question whether a statute that 
limits the dissemination of information obtained by 
means of questionable legality is subject to First 
Amendment scrutiny. In Florida Star, the Court 
stated, “The [Smith] 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 acquisition, but 
the ensuing publication as well.” 491 U.S. at 535 n. 8, 
109 S. Ct. 2603. Similarly, the Smith Court was careful 
to note that its holding did not reach the issue of 
unlawful press access. See 443 U.S. at 105, 99 S. Ct. 
2667. 

Moreover, the Supreme Court’s practice of narrowly 
circumscribing its holdings in this area strongly sug- 
gests that a rule for undecided cases should not be 

14a 

derived by negative implication from its reported 
decisions. The defendant in Landmark urged the Court 
to adopt a blanket rule, protecting the press from any 
liability for truthfully reporting information concerning 
public officials and their public duties, but the Supreme 
Court refused to do so. See 435 U.S. at 838, 98 S. Ct. 
1535. Instead it considered the very narrow question: 
“whether [a state] may subject persons, including news- 
papers, to criminal sanctions for divulging information 
regarding proceedings before a state judicial com- 
mission which is authorized to hear complaints as to 
judges’ disability or misconduct, when such proceedings 
are declared confidential by the State Constitution and 
statutes.” Id. at 830, 98 S. Ct. 1535. 

Similarly, the Florida Star Court refused “appel- 
lant’s invitation to hold broadly that truthful publi- 
cation may never be punished consistent with the First 
Amendment.” 491 U.S. at 532, 109 S. Ct. 2603. It 
stated: “Our 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 First Amendment and 
privacy rights counsel relying on limited principles that 
sweep no more broadly than the appropriate context of 
the instant case.” Id. at 532-33, 109 S. Ct. 2603. 

In keeping with the Supreme Court’s approach to 
deciding these illustrative cases, we will resolve the 
present controversy not by mechanically applying a 
test gleaned from Cox and its progeny, but by re- 
viewing First Amendment principles in light of the 
unique facts and circumstances of this case. 

15a 

B. 

The District Court based its conclusion that the dam- 
ages provision of the Wiretapping Acts may consti- 
tutionally be applied to penalize the defendants’ con- 
duct primarily on the Supreme Court’s decision in 
Cohen v. Cowles Media Co., 501 U.S. 663, 111 S. Ct. 
2513, 115 L.Ed.2d 586 (1991). The District Court 
interpreted that decision as standing for the proposition 
that a generally applicable law that neither singles out 
the press for special burdens nor purposefully restricts 
free expression does not offend the First Amendment. 
See Bartnicki, slip op. at 8 (“Generally applicable laws 
‘do not offend the First Amendment simply because 
their enforcement against the press has incidental 
effects on its ability to gather and report the news.’ ” 
(quoting Cohen v. Cowles Media Co., 501 U.S. 663, 669, 
111 S. Ct. 2513, 115 L.Ed.2d 586 (1991))). The District 
Court emphasized language from the Cohen opinion in 
which the Supreme Court stated, “‘[i]t is . . . beyond 
dispute that the publisher of a newspaper has no special 
immunity from the application of general laws. He has 
no special privilege to invade the rights and liberties of 
others.’ ” Bartnicki, slip op. at 8 (quoting Cohen, 501 
U.S. at 670, 111 S. Ct. 2513). 

After reviewing the Federal and Pennsylvania 
Wiretapping Acts, the District Court found that neither 
Act targets or singles out the press. The District Court 
also opined that these laws are not “specifically de- 
signed to chill free speech.” Id. at 7. Based on this 
finding, it concluded that “both acts are matters of 
general applicability” and, without further analysis, 

16a 

denied defendants’ motion for summary judgment on 
the basis of the First Amendment. 

There is reason to question whether the damages 
provisions of the Acts are properly categorized as 
generally applicable laws. Arguably, that term should 
be reserved for laws that directly regulate conduct 
rather than speech. See infra at 119. Moreover, it may 
well be that be that [sic] by banning the disclosure of 
certain information, the damages provisions impose a 
disproportionate burden on the press. Indeed, we 
would not be surprised to find that a prohibition on 
disclosure falls more heavily on the press, which is in 
the business of disseminating information, than it does 
on ordinary citizens whose opportunities for spreading 
information are more limited. 

We need not resolve that question, however, because 
we conclude that, by suggesting that generally appli- 
cable laws do not require First Amendment scrutiny 
when applied to the press, the District Court read the 
cited portions of Cohen too broadly. In Cohen, the 
plaintiff, who was actively associated with the election 
staff of a gubernatorial candidate, offered to provide 
two newspapers with some information concerning the 
candidate’s opponent in exchange for a promise that the 
newspapers would not use his name in any resulting 
story. After having made the promise and secured the 
information, each newspaper proceeded to publish a 
story identifying Cohen as the source of the information 
and highlighting his role in the gubernatorial campaign. 
Cohen lost his job the day the stories ran. He then sued 
the publishers of the newspapers in state court and 
recovered damages under a theory of promissory estop- 
pel. The publishers appealed, arguing that holding 

17a 

them liable for their breached promises would violate 
the First Amendment. 

It is in the context of rejecting this argument that 
the Supreme Court stated, “[G]enerally applicable laws 
do not offend the First Amendment simply because 
their enforcement against the press has incidental 
effects on its ability to gather and report the news.” 
Cohen, 501 U.S. at 669, 111 S. Ct. 2513. The Court 
explained that “enforcement of such general laws 
against the press is not subject to stricter scrutiny than 
would be applied to enforcement against other persons 
or organizations.” Id. at 670, 111 S. Ct. 2513. 

The Cohen opinion thus instructs that a law of 
general applicability, which neither targets nor imposes 
disproportionate burdens upon the press, is enforceable 
against the press to the same extent that it is enforce- 
able against individuals or organizations. The question 
remains whether the damages provisions of the Wire- 
tapping Acts may constitutionally be applied to penalize 
individuals or organizations for disclosing material they 
know or have reason to know was illegally intercepted 
who had no part in the interception. 

C. 

In order to determine whether the provisions for civil 
sanctions from the Wiretapping Acts may consti- 
tutionally be applied to penalize defendants’ disclosure, 
we must first decide what degree of First Amendment 
scrutiny should be applied. 

The United States argues that the Federal Wire- 
tapping Act is subject to intermediate rather than strict 

18a 

scrutiny. It bases this contention on two subsidiary 
assertions: (1) that these are “general law[s] that 
impose[ ] only incidental burdens on expression” and 
(2) that “to the extent that Title III restricts speech in 
particular cases, it does so in an entirely content- 
neutral fashion.” United States’ Br. at 22. It states 
that “[a] statute satisfies intermediate scrutiny, if it 
furthers an important or substantial governmental 
interest, if the governmental interest is unrelated to 
the suppression of free expression, and if the incidental 
restriction on speech is not unnecessarily great.” 
United States’ Br. at 11-12. We assume that the United 
States’ arguments apply equally to the Pennsylvania 
Wiretapping Act, which is substantially similar to the 
Federal Wiretapping Act. 

We first consider the United States’ argument that 
the disclosure provisions of the Wiretapping Acts merit 
only intermediate scrutiny because they impose only 
incidental burdens on expression. In support, the 
United States cites a series of Supreme Court de- 
cisions, beginning with United States v. O’Brien, 391 
U.S. 367, 88 S. Ct. 1673, 20 L.Ed.2d 672 (1968). 

O’Brien was arrested and convicted for burning his 
draft card on the steps of the South Boston Courthouse. 
On appeal, O’Brien argued that the federal law, making 
it an offense to “forge[ ], alter[ ], knowingly destroy[ ], 
knowingly mutilate[ ], or in any manner change[ ] . . . 
such [a] certificate,” was unconstitutional. Id. at 370, 88 
S. Ct. 1673 (italics omitted). The Court of Appeals for 
the First Circuit agreed that this provision unconsti- 
tutionally abridged the freedom of speech. 

19a 

The Supreme Court, however, reversed. It opined 
that the statute “on its face deals with conduct having 
no connection with speech. It prohibits the knowing 
destruction of certificates issued by the Selective 
Service System, and there is nothing necessarily ex- 
pressive about such conduct.” Id. at 375, 88 S. Ct. 1673.1 
The Supreme Court nonetheless recognized that 
O’Brien had burned his draft card as a form of protest 
against war. Assuming for the sake of argument that 
“the alleged communicative element in O’Brien’s con- 
duct [was] sufficient to bring into play the First 
Amendment,” the Supreme Court held that the statute 
was still a permissible regulation. Id. at 376, 88 S. Ct. 
1673. It reasoned that “when ‘speech’ and ‘nonspeech’ 
elements are combined in the same course of conduct, 
a sufficiently important governmental interest in regu- 
lating the nonspeech element can justify incidental 
limitations on First Amendment freedoms.” Id. The 
Court stated that such “a government regulation is 
sufficiently justified if it is within the constitutional 
power of the Government; if it furthers an important or 
substantial governmental interest; if the governmental 
interest is unrelated to the suppression of free ex- 
pression; and if the incidental restriction on alleged 
First Amendment freedoms is no greater than essential 
to the furtherance of that interest.” Id. at 377, 88 S. Ct. 
1673. 

In O’Brien and its progeny, the Supreme Court 
distinguished between “expressive conduct protected 
to some extent by the First Amendment” and oral or 

1 Respected commentators have taken issue with this holding 
in O’Brien. See, e.g., Lawrence H. Tribe, American Constitutional 
Law, § 312-6 at 824-25 (2d ed. 1988). 

20a 

written expression, which is fully protected by that 
amendment. Clark v. Community for Creative Non- 
Violence, 468 U.S. 288, 293, 104 S. Ct. 3065, 82 L.Ed.2d 
221 (1984). “[C]onduct that is intended to be communi- 
cative and that, in context, would reasonably be 
understood by the viewer to be communicative” is 
“[s]ymbolic expression,” otherwise known as expressive 
conduct. Id. at 294, 104 S. Ct. 3065. The cases the 
United States cites in addition to O’Brien also focus on 
the permissibility of regulating expressive conduct. See 
Barnes v. Glen Theatre, Inc., 501 U.S. 560, 111 S. Ct. 
2456, 115 L.Ed.2d 504 (1991) (Indiana statute prohibit- 
ing complete nudity in public places); Arcara v. Cloud 
Books, Inc., 478 U.S. 697, 106 S. Ct. 3172, 92 L.Ed.2d 
568 (1986) (New York statute authorizing closure of 
building found to be a public health nuisance); United 
States v. Albertini, 472 U.S. 675, 105 S. Ct. 2897, 86 
L.Ed.2d 536 (1985) (federal statute making it unlawful 
to reenter a military base after having been barred by 
the commanding officer); Clark, 468 U.S. at 289, 104 S. 
Ct. 3065 (National Park Service regulation prohibiting 
camping in Lafayette Park); cf. R.A.V. v. City of St. 
Paul, 505 U.S. 377, 112 S. Ct. 2538, 120 L.Ed.2d 305 
(1992) (Minnesota statute prohibiting display of certain 
objects, including a burning cross or Nazi swastika). 

By citing this line of cases in support of its position 
that intermediate scrutiny applies here, the United 
States apparently suggests that defendants’ actions in 
disclosing the contents of the Bartnicki-Kane conversa- 
tion are properly considered “expressive conduct” 
rather than speech. If this is the thrust of the govern- 
ment’s citations, it is not persuasive. The acts on which 
Bartnicki and Kane base their complaint are Yocum’s 
“intentionally disclos[ing a] tape to several individuals 

21a 

and media sources”2 and the media defendants’ 
“intentionally disclos[ing] and publish[ing] to the public 
the entire contents of the private telephone conversa- 
tion between Bartnicki and Kane.” App. at 149. If 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. 

We have no doubt that it is possible to identify some 
act by the media defendants in the course of preparing 
the broadcasts during which the tape was disclosed that 
falls within our ordinary understanding of the term 
conduct. However, this fact does not alter the analysis. 
The Supreme Court has observed, “It is possible to find 
some kernel of expression in almost every activity a 
person undertakes—for example, walking down the 
street or meeting one’s friends at a shopping mall—but 
such kernel is not sufficient to bring the activity within 
the protection of the First Amendment.” Barnes, 501 
U.S. at 570, 111 S. Ct. 2456 (quoting Dallas v. Stanglin, 
490 U.S. 19, 25, 109 S. Ct. 1591, 104 L.Ed.2d 18 (1989)). 
Similarly, although it may be possible to find some 
kernel of conduct in almost every act of expression, 
such kernel of conduct does not take the defendants’ 
speech activities outside the protection of the First 
Amendment. 

The United States nonetheless insists that intermedi- 
ate scrutiny is appropriate because the statute, read as 

2 The complaint also alleges that Yocum “obtained a tape of 
the surreptitiously recorded telephone conversation,” App. at 149, 
but the complaint does not allege that the mere obtaining of the 
tape violates either statute. 

22a 

a whole, primarily prohibits conduct rather than 
speech. It notes that the prohibition in 18 U.S.C. 
§ 2511(1)(d) against using or endeavoring to use inter- 
cepted material encompasses more than disclosure. 
The government asserts that it precludes, for example, 
a person or company from using intercepted material to 
develop a competing product, to craft a negotiating 
strategy, or to justify taking disciplinary action against 
an employee. United States’ Br. at 22-23. 

The government cites no support for the surprising 
proposition that a statute that governs both pure 
speech and conduct merits less First Amendment 
scrutiny than one that regulates speech alone. We are 
convinced that this proposition does not accurately 
state First Amendment law. A statute that prohibited 
the “use” of evolution theory would surely violate the 
First Amendment if applied to prohibit the disclosure of 
Charles Darwin’s writings, much as a law that directly 
prohibited the publication of those writings would 
surely violate that Amendment. 

Because the defendants’ acts in this case—the dis- 
closure and broadcast of information—contain no 
significant “nonspeech” elements, we need not decide 
whether this statute could properly be subjected to 
lesser scrutiny if applied to prohibit “uses” that do 
involve such “nonspeech” elements. We merely hold 
that, when a statute that regulates both speech and 
conduct is applied to an act of pure speech, that statute 
must meet the same degree of First Amendment scru- 
tiny as a statute that regulates speech alone. 

23a 

The United States’ second argument—that inter- 
mediate scrutiny applies because the Acts are content- 
neutral—is more persuasive. 

When the state uses a “content-based” regulation to 
restrict free expression, particularly political speech, 
that regulation is subject to “the most exacting 
scrutiny.” Boos v. Barry, 485 U.S. 312, 321, 108 S. Ct. 
1157, 99 L.Ed.2d 333 (1988); Phillips v. Borough of 
Keyport, 107 F.3d 164, 172 (3d Cir. 1997) (en banc). It 
will not be upheld unless the state can show that it “is 
necessary to serve a compelling state interest and that 
it is narrowly drawn to achieve that end.” Boos, 485 
U.S. at 321, 108 S. Ct. 1157; see also Phillips, 107 F.3d 
at 172 (“State regulations of speech that are not 
regarded as content neutral will be sustained only if 
they are shown to serve a compelling state interest in a 
manner which involves the least possible burden on 
expression.”). 

By contrast, when the state places a reasonable 
“content-neutral” restriction on speech, such as a time, 
place and manner regulation, that regulation need not 
meet the same high degree of scrutiny. “Content- 
neutral” restrictions are valid under the First Amend- 
ment provided that they “are justified without refer- 
ence to the content of the regulated speech, that they 
are narrowly tailored to serve a significant govern- 
mental interest, and that they leave open ample 
alternative channels for communication of informa- 
tion.”3 Clark, 468 U.S. at 293, 104 S. Ct. 3065. 

3 This standard is little different from that announced in 
O’Brien as governing conduct regulations that incidentally restrict 
expressive behavior. See Clark, 468 U.S. at 298, 104 S. Ct. 3065. 

24a 

We recognize that an argument could be made that 
the Wiretapping Acts are content-based. Ordinarily, 
the distinction between permissible and impermissible 
regulation of speech depends on whether the law at 
issue regulates the substantive content of the speech 
(what is said) or whether it merely regulates the time, 
place, or manner of the speech (when, where, at what 
volume, and through which medium it is said). The 
former regulations are content-based while the latter 
are content-neutral. The essence of the distinction lies 
in the fact that, if the regulation were content-based, it 
would not be possible to determine whether a particular 
speech is prohibited without referring to the substan- 
tive import of that expression. 

The United States contends that the Wiretapping 
Acts are not content-based even in the literal sense 
referred to above because the Acts define the content 
that is prohibited by reference to the manner in which 
the information was acquired, rather than to its subject 
matter or viewpoint. We suspect that the mere fact 
that a regulation defines the category of content that 
is prohibited by reference to its source rather than 
its subject matter is unlikely to be sufficient to 
justify treating the regulation as content-neutral. For 
example, one might argue that a ban on the publication 
of information obtained through experimentation on 
human embryos would raise sufficient First Amend- 
ment concerns to merit heightened scrutiny, even if 
such experimentation were illegal. 

The Supreme Court’s decision in Renton v. Playtime 
Theatres, Inc., 475 U.S. 41, 106 S. Ct. 925, 89 L.Ed.2d 29 
(1986), however, suggests that we are not limited to a 
literal interpretation of the phrase “content-neutral” 

25a 

but may determine whether speech is content-neutral 
or content-based with reference to the government’s 
proffered justification for the restriction. In Renton, 
the Supreme Court described “content-neutral” speech 
restrictions as those that “are justified without refer- 
ence to the content of the regulated speech.” Id. at 48, 
106 S. Ct. 925 (quoting Virginia Pharmacy Bd. v. 
Virginia Citizens Consumer Council, Inc., 425 U.S. 
748, 771, 96 S. Ct. 1817, 48 L.Ed.2d 346 (1976)). We 
therefore turn to consider the purpose or purposes the 
Wiretapping Acts are meant to serve. 

The Senate Report describes the purposes of the 
Federal Wiretapping Act as: “(1) protecting the privacy 
of wire and oral communications, and (2) delineating on 
a uniform basis the circumstances and conditions under 
which the interception of wire and oral communications 
may be authorized.” S. Rep. No. 90-1097 (1968), 
reprinted in 1968 U.S.C.C.A.N. 2112, 2153. Congress 
thus focused on privacy in adopting 18 U.S.C. § 2511, 
the provision that prohibits the interception of wire, 
oral, or electronic communications, as well as the use or 
disclosure of the contents of illegally intercepted com- 
munications. Congress did not, however, define the 
privacy interest that it intended the Act to protect. 

As commonly understood, the right to privacy 
encompasses both the right “to be free from unrea- 
sonable intrusions upon [one’s] seclusion” and the right 
to be free from “unreasonable publicity concerning 
[one’s] private life.” Fultz v. Gilliam, 942 F.2d 396, 401 
(6th Cir. 1991); see also Whalen v. Roe, 429 U.S. 589, 97 
S. Ct. 869, 51 L.Ed.2d 64 (1977); Paul P. v. Verniero, 
170 F.3d 396 (3d Cir. 1999). The Sixth Circuit has 
opined that “[t]he prohibitions Congress incorporated 

26a 

into section 2511(1) of Title III protect both these 
interests first, by prohibiting the surreptitious inter- 
ception of private communications in the first 
instance—a highly offensive physical intrusion on the 
victim’s private affairs—and second, by circumscribing 
the dissemination of private information so obtained.” 
Fultz, 942 F.2d at 401 (footnote omitted). The First 
Circuit has similarly suggested that by enacting Title 
III Congress recognized “that the invasion of privacy is 
not over when the interception occurs but is com- 
pounded by disclosure.” Providence Journal Co. v. 
FBI, 602 F.2d 1010, 1013 (1st Cir. 1979); see also Fultz, 
942 F.2d at 402 (“Each time the illicitly obtained re- 
cording is replayed to a new and different listener, the 
scope of the invasion widens and the aggrieved party’s 
injury is aggravated.”). 

We have no doubt that the state has a significant 
interest in protecting the latter privacy right—the 
right not to have intimate facts concerning one’s life 
disclosed without one’s consent. That right is a ven- 
erable one whose constitutional significance we have 
recognized in the past. See Paul P., 170 F.3d at 401-02 
(collecting cases). We also have no doubt that the 
prohibition on using or disclosing the contents of an 
illegally intercepted communication serves that interest 
by deterring the publicization of private facts. 

We are less certain, however, that the desire to pro- 
tect the privacy interest that inheres in private facts is 
a content-neutral justification for restricting speech. 
The Supreme Court has instructed that “[l]isteners’ 
reaction to speech is not a content-neutral basis for 
regulation.” Forsyth County v. Nationalist Movement, 
505 U.S. 123, 134, 112 S. Ct. 2395, 120 L.Ed.2d 101 

27a 

(1992); accord Lind v. Grimmer, 30 F.3d 1115, 1117 (9th 
Cir. 1994) (“Because the[ ] concerns [addressed by the 
statute] all stem from the direct communicative impact 
of speech, we conclude that section 11-216(d) regulates 
speech on the basis of its content.”) As Justice 
O’Connor explained in Boos, “[r]egulations that focus 
on the direct impact of speech on its audience”—the 
speech’s “primary effects”—are not properly treated as 
content-neutral under Renton. 485 U.S. at 321, 108 S. 
Ct. 1157 (Opinion of O’Connor, J.). 

Although the defendants do not argue that the regu- 
lations at issue are content-based, there is a not implau- 
sible argument that the injury associated with the 
disclosure of private facts stems from the communi- 
cative impact of speech that contains those facts, i.e. 
having others learn information about which one wishes 
they had remained ignorant. Thus, under the Supreme 
Court’s jurisprudence, the injury associated with such 
disclosure constitutes a “primary effect” of the dis- 
favored speech, rather than a “secondary effect.” This 
reasoning might suggest that a statute that regulated 
expression for the purpose of protecting the right not to 
have private facts disclosed without permission would 
be subject to strict scrutiny as a content-based regu- 
lation. 

We do not decide whether the Wiretapping Acts 
would indeed be properly categorized as content-based 
if justified on the basis of a need to prevent the dis- 
closure of private facts because the United States for 
the most part eschews reliance on that justification in 
explaining the purpose of those acts. Instead, the 
United States argues that “the fundamental purpose of 
Title III is to maintain the confidentiality of wire, 

28a 

electronic, and oral communications.” United States’ 
Br. at 33. It reasons that “prohibiting the use of 
illegally intercepted communication . . . ‘strengthen[s] 
subsection (1)(a),’ the provision that imposes the 
underlying ban on unauthorized interception, ‘ by deny- 
ing the wrongdoer the fruits of his labor’ and by 
eliminating the demand for those fruits by third 
parties.” United States’ Br. at 33. We are satisfied that 
this latter justification does not rely on the communi- 
cative impact of speech and, therefore, that the Acts 
are properly treated as content-neutral. 

D. 

Accordingly, we adopt the government’s position that 
we should apply intermediate scrutiny in our analysis of 
the issue before us. In doing so, we must first fix upon 
an acceptable definition of the term “intermediate 
scrutiny.”4 Intermediate scrutiny is used by the Court 
in a wide variety of cases calling for some balancing. 
Thus, intermediate scrutiny has been applied to 
statutes that discriminate on the basis of gender. See 
Craig v. Boren, 429 U.S. 190, 200, 97 S. Ct. 451, 50 
L.Ed.2d 397 (1976) (holding that prohibiting sale of 

3.2% beer to males under 21 and females under 18 did 
not “closely serve” goal of promoting traffic safety). It 
is the review standard used to examine whether an 
even-handed regulation promulgated for a legitimate 

4 In a recent article, the author uses the term “ ‘intermediate 
scrutiny’ to refer to a test that requires a state interest which is 
greater than legitimate but less than compelling and a fit between 
means and end that is not necessarily narrowly tailored but has 
more than just an incidental connection.” Jay D. Wexler, 
Defending the Middle Way: Intermediate Scrutiny as Judicial 
Minimalism, 66 Geo. Wash. L.Rev. 298, 300 n. 15 (1998). 

29a 

public interest violates the dormant Commerce Clause. 
See Pike v. Bruce Church, Inc., 397 U.S. 137, 142, 90 S. 
Ct. 844, 25 L.Ed.2d 174 (1970) (describing balancing test 
for state regulation); Southern Pac. Co. v. Arizona ex 
rel Sullivan, 325 U.S. 761, 65 S. Ct. 1515, 89 L.Ed. 1915 
(1945) (invalidating limit on train length as not “plainly 
essential” to further state interest in safety). And in 
the First Amendment context, intermediate scrutiny 
has been applied to commercial speech cases, see 
Central Hudson Gas & Elec. Corp. v. Public Serv. 
Comm’n., 447 U.S. 557, 566, 100 S. Ct. 2343, 65 L.Ed.2d 
341 (1980) (establishing four-part test for commercial 
speech regulation), and to examine the validity of time, 
place, and manner regulations, see United States v. 
Grace, 461 U.S. 171, 103 S. Ct. 1702, 75 L.Ed.2d 736 
(1983) (invalidating statute prohibiting displaying flag, 
banner or device in Supreme Court building or on its 
grounds). 

Admittedly, the intermediate scrutiny test applied 
varies to some extent from context to context, and case 
to case. But it always encompasses some balancing of 
the state interest and the means used to effectuate that 
interest. And despite the frequent tendency to assume 
that regulations that are reviewed under less exacting 
scrutiny than strict scrutiny will be upheld, each of the 
cases referred to above as applying intermediate scru- 
tiny held that the regulation in question was unconsti- 
tutional. The reasons varied. Sometimes, the Court 
held the asserted government interest insufficient to 
justify an expansive prohibition and noted the gov- 
ernment failed to demonstrate that a lesser prohibition 
would not adequately serve its purpose. See, e.g., 
Schneider v. State, 308 U.S. 147, 162, 60 S. Ct. 146, 84 
L.Ed. 155 (1939) (holding that state interest in pre- 

30a 

venting littering did not justify ban on leafletting); 
Village of Schaumburg v. Citizens for a Better En- 
vironment, 444 U.S. 620, 636, 100 S. Ct. 826, 63 L.Ed.2d 
73 (1980) (invalidating prohibition on charitable solici- 
tations for certain charities as too destructive of First 
Amendment interests). Other times, the Court held the 
government failed to show that the challenged regula- 
tion substantially served the asserted government 
interest. See, e.g., Grace, 461 U.S. at 182, 103 S. Ct. 
1702. It should also be noted that in making the exami- 
nation into whether the means chosen were those 
appropriate to the government interest, the Court has 
not always made a distinction between its analysis 
for purposes of intermediate scrutiny and for strict 
scrutiny. See, e.g., Anderson v. Celebrezze, 460 U.S. 
780, 103 S. Ct. 1564, 75 L.Ed.2d 547 (1983) (invalidating 
candidate registration statute because voters’ associ- 
ational and voting rights outweighed state interest). 

The test usually applied in First Amendment cases to 
content-neutral regulation requires an examination of 
whether the regulation is “narrowly tailored to serve a 
significant governmental interest” and “leave[s] open 
ample alternative channels for communication.” Clark 

v. Community for Creative Non-Violence, 468 U.S. 288, 
293, 104 S. Ct. 3065, 82 L.Ed.2d 221 (1984). There is a 
considerable number of First Amendment cases in 
which the Supreme Court, applying intermediate scru- 
tiny, has found that the regulation at issue, albeit 
designed to advance legitimate state interests, failed to 
withstand that scrutiny. A review of illustrative cases 
provides some indication of the Court’s analytic ap- 
proach in such instances. 

31a 

In Schneider, the Court recognized that there is a 
legitimate government interest in preventing street 
littering but nevertheless found that “the purpose to 
keep the streets clean and of good appearance is 
insufficient to justify an ordinance which prohibits a 
person rightfully on a public street from handing 
literature to one willing to receive it.” 308 U.S. at 162, 
60 S. Ct. 146. The Court termed the burden imposed on 
the cities in cleaning and caring for the streets “an 
indirect consequence of such distribution,” and one that 
resulted from the “constitutional protection of the 
freedom of speech and press.” Id. The Court con- 
tinued, in language significant for this case, “[t]here are 
obvious methods of preventing littering. Amongst 
these is the punishment of those who actually throw 
papers on the streets.” Id. (emphasis added). 

Similarly, in Village of Schaumburg, the Court rec- 
ognized that the government had a substantial interest 
in protecting the public from fraud, crime and undue 
annoyance, but held that the proffered interest, which 
the government sought to accomplish by an ordinance 
that prohibited the solicitation of contributions by 
charitable organizations that did not use at least 75% of 
their receipts for “charitable purposes,” was “only peri- 
pherally promoted by the 75-percent requirement and 
could be sufficiently served by measures less destruc- 
tive of First Amendment interests.” 444 U.S. at 636, 
100 S. Ct. 826. 

Both Schneider and Schaumburg were cited by the 
Court in a later case to illustrate “the delicate and 
difficult task [that] falls upon the courts to weigh the 
circumstances and to appraise the substantiality of the 
reasons advanced in support of the regulation of the 

32a 

free enjoyment of [First Amendment] rights.” Schad v. 
Borough of Mount Ephraim, 452 U.S. 61, 70, 101 S. Ct. 
2176, 68 L.Ed.2d 671 (1981) (quoting Schneider, 308 
U.S. at 161, 60 S. Ct. 146). In Schad, the Court invali- 
dated a zoning ordinance that excluded live entertain- 
ment, including nude dancing, throughout the borough 
after finding that the borough “ha[d] not adequately 
justified its substantial restriction of protected activ- 
ity.” Id. at 72, 101 S. Ct. 2176. Justice Blackmun’s con- 
curring opinion makes clear that the burden to “artic- 
ulate, and support, a reasoned and significant basis” for 
the governmental regulation should not be viewed as de 
minimis, even when the regulation is subjected to 
intermediate scrutiny. Id. at 77, 101 S. Ct. 2176; see 
also Geoffrey R. Stone, Content-Neutral Restrictions, 
54 U. Chi. L. Rev. 46, 52-53 (1987) (describing inter- 
mediate scrutiny as a test that “takes seriously the in- 
quiries into the substantiality of the governmental 
interest and the availability of less restrictive alter- 
natives.”). 

With the Supreme Court precedent as a guide, we 
examine whether the government has shown that its 
proffered interest is sufficiently furthered by appli- 
cation to these defendants of the damages provisions of 
the Wiretapping Acts to justify the impingement on the 
protected First Amendment interests at stake. 

As noted above, the United States contends that the 
Wiretapping Acts serve the government’s interest in 
protecting privacy by helping “maintain the con- 
fidentiality of wire, electronic, and oral communi- 
cations.” United States’ Br. at 33. Undoubtedly, this is 
a significant state interest. We do not understand the 
defendants to deny that there is an important gov- 

33a 

ernmental interest served by the Wiretapping Acts. 
However, the government recognizes that not all of the 
provisions of the Wiretapping Acts are being chal- 
lenged. In fact, only a portion of those Acts are at issue 
here—the provisions imposing damages and counsel 
fees for the use and disclosure of intercepted material 
on those who played no part in the interception. 

The United States asserts that these provisions pro- 
tect the confidentiality of communications in two ways: 
(1) “by denying the wrongdoer the fruits of his labor” 
and (2) “by eliminating the demand for those fruits by 
third parties.” United States’ Br. at 33. In this case, 
however, there is no question of “denying the wrong- 
doer the fruits of his labor.” The record is devoid of any 
allegation that the defendants encouraged or partici- 
pated in the interception in a way that would justify 
characterizing them as “wrongdoers.” Thus, the appli- 
cation of these provisions to penalize an individual or 
radio stations who did participate in the interception 
and thereafter disclosed the intercepted material is not 
before us. 

We therefore focus on the United States’ second 
contention—that the provisions promote privacy by 
eliminating the demand for intercepted materials on the 
part of third parties. The connection between pro- 
hibiting third parties from using or disclosing inter- 
cepted material and preventing the initial interception 
is indirect at best. The United States has offered 
nothing other than its ipse dixit in support of its 
suggestion that imposing the substantial statutory 
damages provided by the Acts on Yocum or the media 
defendants will have any effect on the unknown party 
who intercepted the Bartnicki-Kane conversation. Nor 

34a 

has the United States offered any basis for us to 
conclude that these provisions have deterred any other 
would-be interceptors.5 Given the indirectness of the 
manner in which the United States claims the pro- 
visions serve its interest, we are not prepared to accept 
the United States’ unsupported allegation that the 
statute is likely to produce the hypothesized effect. See 
Landmark Communications, Inc. v. Virginia, 435 U.S. 
829, 841, 98 S. Ct. 1535, 56 L.Ed.2d 1 (1978) (“The 
Commonwealth has offered little more than assertion 
and conjecture to support its claim that without 
criminal sanctions the objectives of the statutory 
scheme would be seriously undermined.”). Faced with 
nothing “more than assertion and conjecture,” it would 
be a long stretch indeed to conclude that the imposition 
of damages on defendants who were unconnected with 
the interception even “peripherally promoted” the 
effort to deter interception. See Village of Schaum- 
burg, 444 U.S. at 636, 100 S. Ct. 826. 

When the state seeks to effectuate legitimate state 
interests, 

it must do so by narrowly drawn regulations de- 
signed to serve those interests without unneces- 
sarily interfering with First Amendment freedoms. 

5 As the Supreme Court recently emphasized in invalidating a 
prohibition on the receipt of honoraria by government employees, 
“[w]hen the government defends a regulation on speech . . . it 
must do more than simply ‘posit the existence of the disease 
sought to be cured.’ . . . It must demonstrate that the recited 
harms are real, not merely conjectural, and that the regulation will 
in fact alleviate these harms in a direct and material way.” 
United States v. National Treasury Employees Union, 513 U.S. 
454, 475, 115 S. Ct. 1003, 130 L.Ed.2d 964 (1995) (citation and in- 
ternal quotation omitted) (emphasis added). 

35a 

Hynes v. Mayor of Oradell, 425 U.S. at 620, 96 S. Ct. 
1755; First National Bank of Boston v. Bellotti, 435 
U.S. 765, 786, 98 S. Ct. 1407, 55 L.Ed.2d 707 (1978). 
“Broad prophylactic rules in the area of free 
expression are suspect. Precision of regulation must 
be the touchstone . . . .” NAACP v. Button, 371 

U.S. 415, 438, 83 S. Ct. 328, 9 L.Ed.2d 405 (1963) 
(citations omitted). 

Village of Schaumburg, 444 U.S. at 637, 100 S. Ct. 826. 

In Village of Schaumburg, the Court stated that the 
Village’s legitimate interest in preventing fraud could 
be better served by requiring solicitors to inform the 
public of the uses made of their contributions, than by 
prohibiting solicitation. Id. Similarly, in Martin v. 
Struthers, 319 U.S. 141, 147-48, 63 S. Ct. 862, 87 L.Ed. 
1313 (1943), the Court held that in lieu of a complete 
prohibition of door-to-door solicitation, with its dra- 
conian impact on First Amendment values, the City 
could have used the less restrictive means of punishing 
those who trespass “in defiance of the previously ex- 
pressed will of the occupant.” Indeed, the Wiretapping 
Acts already provide for punishment of the offender, 

i.e., the individual who intercepted the wire communi- 
cation and who used or disclosed it. See Schneider, 308 
U.S. at 162, 60 S. Ct. 146 (city should prevent littering 
by punishing litterers, not by prohibiting leafleting). 
Those who indirectly participated in the interception, 
either by aiding or abetting, would also fall within the 
sanctions provided by the statute. Therefore, the 
government’s desired effect can be reached by enforce- 
ment of existing provisions against the responsible 
parties rather than by imposing damages on these 
defendants. 

36a 

We are also concerned that the provisions will deter 
significantly more speech than is necessary to serve the 
government’s asserted interest. It is likely that in 
many instances these provisions will deter the media 
from publishing even material that may lawfully be 
disclosed under the Wiretapping Acts. 

Reporters often will not know the precise origins of 
information they receive from witnesses and other 
sources, nor whether the information stems from a 
lawful source. Moreover, defendants argue that they 
cannot be held liable for use and publication of informa- 
tion that had previously been disclosed. Assuming this 
is so, reporters may have difficulty discerning whether 
material they are considering publishing has previously 
been disclosed to the public. Such uncertainty could 
lead a cautious reporter not to disclose information of 
public concern for fear of violating the Wiretapping 
Acts. 

Bartnicki and Kane recognize that the Supreme 
Court has frequently expressed concern about the 
“timidity and self-censorship” that may result from 
permitting the media to be punished for publishing 
certain truthful information. See, e.g., Florida Star, 491 
U.S. at 535, 109 S. Ct. 2603; Cox Broadcasting, 420 U.S. 
at 496, 95 S. Ct. 1029. The public interest and news- 
worthiness of the conversation broadcast and disclosed 
by the defendants are patent. In the conversation, the 
president of a union engaged in spirited negotiations 
with the School Board suggested “blow[ing] off [the] 
front porches” of the School Board members. Nothing 
in the context suggests that this was said in anything 
other than a serious vein. Certainly, even if no later 

37a 

acts were taken to follow through on the statement, and 
hence no crime committed, the fact that the president of 
the school teachers’ union would countenance the sug- 
gestion is highly newsworthy and of public significance. 
Our concerns are only heightened by the Supreme 
Court’s admonition in Smith that “state action to 
punish the publication of truthful information seldom 
can satisfy constitutional standards.” 443 U.S. at 102, 
99 S. Ct. 2667. 

Our dissenting colleague does not disagree with any 
of the applicable legal principles. He candidly states 
that the difference between us is one of “ultimate 
application of [the agreed upon] analysis to the case at 
bar.” Dissenting Op. at 130. Therefore, we add only a 
few brief comments pertaining to that application. 

Evidently, one of the principal differences between 
our respective applications lies in the weight we give 
the factors to be balanced. The dissent suggests the 
Supreme Court’s decisions in Schneider, Struthers, and 
Schaumburg are not pertinent to this case because the 
state interests in those cases (littered streets, annoying 
door-to-door proselytizers,6 and fraudulent charitable 
solicitors, respectively) were “not very important.” 
The dissent contrasts those interests with the signifi- 
cant governmental interest at issue here—that of 
maintaining the confidentiality of wire, electronic, and 
oral communications. 

6 The dissent fails to mention that one of the purposes for the 
ordinance referred to by the Court in Struthers was crime pre- 
vention. See 319 U.S. at 144-45, 63 S. Ct. 862. 

38a 

Presumably, the dissent’s point is that we must 
weigh more heavily the privacy interests furthered by 
the Wiretapping Acts than the Court weighed the state 
interests in the three cited cases. Given the conceded 
importance of privacy and confidentiality at issue here, 
we nonetheless find it difficult to accord it more weight 
than the interests in preventing disclosure of the name 
of a rape victim, the identity of a judge in a putative 
disciplinary proceeding, or the identity of a youth 
charged as a juvenile offender at issue in Cox Broad- 
casting, Landmark Communications and Smith, re- 
spectively. Yet when faced with each of those cir- 
cumstances, the Supreme Court determined that de- 
spite the strong privacy interest underlying the 
statutory and state constitutional provisions punishing 
disclosure of such information, the interests served by 
the First Amendment must take precedence.7 

It would 
be difficult to hold that privacy of telephone conver- 
sations are more “important” than the privacy interests 
the states unsuccessfully championed in those cases. 

In addition, we do not share the dissent’s confidence 
that imposition of civil liability on those who neither 
participated in nor encouraged the interception is an 
effective deterrent to such interception. The dissent 
finds such a nexus in the legislative landscape, where 

7 Although we acknowledge that those decisions arose from a 
stricter level of scrutiny than we employ here and somewhat 
different circumstances, the fact remains that the Court has 
generally tilted for the First Amendment in the tension between 
press freedom and privacy rights. This is bemoaned by the dis- 
senting Justices in The Florida Star, who state candidly they 
“would strike the balance rather differently.” 491 U.S. at 552, 109 
S. Ct. 2603 (White, J., dissenting). So, apparently, would the dis- 
sent in this case. 

39a 

half of the states that prohibit wiretapping also 
authorize civil damage actions. With due respect, we 
find this a slim reed, not only because it appears from 
the dissent’s statistics that the other half of the states 
with wiretapping statutes have not included a damage 
provision but because the incidence of state statutes, 
and hence “widespread legislative consensus,” does not 
prove the deterrent effect of the prohibition. Indeed, 
there is not even general agreement as to the deterrent 
effect of a criminal statute on the perpetrator,8 much 
less on those who were not in league with the per- 
petrator. In determining whether a regulation that 
restricts First Amendment rights “substantially serves 
[its asserted] purposes,” see Grace, 461 U.S. at 182, 103 
S. Ct. 1702, the Court has never found that question 
satisfied by sheer numbers of state statutes. 

The dissent engages in hyperbole when it suggests 
that our decision “invalidates a portion of the federal 
statute” and “by necessary implication spells the de- 
mise of a portion of more than twenty other state 
statutes.” Dissenting Op. at 134. The statutes, which 
are designed to prohibit and punish wiretapping, 
remain unimpaired. All that is at issue is the appli- 
cation of those statutes to punish members of the media 
who neither encouraged nor participated directly or 
indirectly in the interception, an application rarely 
attempted. 

8 The opposing views of deterrence were noted in connection 
with capital punishment in Chief Justice Burger’s dissenting 
opinion in Furman v. Georgia, 408 U.S. 238, 395-96, 92 S. Ct. 2726, 
33 L.Ed.2d 346 (1972). 

40a 

Moreover, we do not agree that the recent decision in 
Boehner v. McDermott, 191 F.3d 463 (D.C. Cir. 1999), 
presented that court with the same issue presented 
here. Most particularly, in Boehner, where a divided 
court upheld the constitutionality of § 2511(1)(c), all 
three judges emphasized in their separate opinions that 
there was no effort to impose civil damages on the 
newspapers (The New York Times, et al.) which had 
printed the details of a conversation that been [sic] 
illegally intercepted. Thus, for example, in the lead 
opinion the court stated at the outset, “[n]or should we 
be concerned with whether § 2511(1)(c) would be consti- 
tutional as applied to the newspapers who published 
the initial stories about the illegally-intercepted con- 
ference call.” Id. at 467. Liability in that case was 
sought to be imposed on James McDermott, a congress- 
man who caused a copy of the tape to be given to the 
newspapers. Although technically, defendant Yocum in 
our case stands in the same position as McDermott, i.e. 
as the source but not the interceptor, there is an 
indication in Boehner that McDermott was more than 
merely an innocent conduit. Indeed, McDermott, unlike 
Yocum, knew who intercepted the conversation be- 
cause he “accepted” the tape from the interceptors and, 
the opinion suggests, not only sought to embarrass his 
political opponents with the tape but also promised the 
interceptors immunity for their illegal conduct. Id. at 
475-76. In fact, the second judge, who concurred in the 
judgment and in only a portion of the opinion for the 
court, specifically limited his concurrence to the de- 
cision that § 2511(1)(c) “is not unconstitutional as 
applied in this case,” id. at 478 (emphasis added), and 
pointed out that “McDermott knew the transaction was 
illegal at the time he entered into it,” id. at 479. In 
contrast, Yocum has not been shown to have “entered 

41a 

into” any transaction with the interceptors. In the 
posture of this case, all parties accept his allegation that 
the tape was left in his mailbox. 

The Boehner court was acutely aware that no court 
has yet held that the government may punish the press 
through imposition of damages merely for publishing 
information of public significance because its original 
source acquired that information in violation of a 
federal or state statute. Cf. Landmark, 435 U.S. at 837, 
98 S. Ct. 1535 (finding it unnecessary to adopt categori- 
cal approach). As noted earlier in this opinion, the 
Supreme Court has been asked to permit a state to 
penalize the publication of truthful information in at 
least four instances. In three of the four cases, the 
statutes at issue protected the privacy interests of such 
vulnerable individuals as juveniles and the victims of 
sexual assault. See Florida Star, 491 U.S. at 526, 109 S. 
Ct. 2603; Smith, 443 U.S. at 98, 99 S. Ct. 2667; Cox 
Broadcasting, 420 U.S. at 472, 95 S. Ct. 1029. In the 
remaining case, the statute at issue was meant to pro- 
tect the state’s interest in an independent and ethical 
judiciary. See Landmark, 435 U.S. at 830, 98 S. Ct. 
1535. Despite the strength of the state interests 
asserted, the Supreme Court in each case concluded 
that those interests were insufficient to justify the 
burdens imposed on First Amendment freedoms. 

We likewise conclude that the government’s signifi- 
cant interest in protecting privacy is not sufficient to 
justify the serious burdens the damages provisions of 
the Wiretapping Acts place on free speech. We are 
skeptical that the burden these provisions place on 
speech will serve to advance the government’s goals. 
Even assuming the provisions might advance these 
interests, the practical impact on speech is likely to be 

42a 

“substantially broader than necessary.” Ward v. Rock 
Against Racism, 491 U.S. 781, 800, 109 S. Ct. 2746, 105 
L.Ed.2d 661 (1989). 

We therefore hold that the Wiretapping Acts fail 
the test of intermediate scrutiny and may not consti- 
tutionally be applied to penalize the use or disclosure of 
illegally intercepted information where there is no 
allegation that the defendants participated in or 
encouraged that interception. It follows that we need 
not decide whether these provisions leave open ample 
alternative channels for communication of information. 

III. 

CONCLUSION 

For the reasons set forth, we will reverse the order 
of the District Court denying summary judgment to the 
defendants, and will remand with directions to grant 
that motion. 

POLLAK, District Judge, dissenting. 

The Court of Appeals for the District of Columbia 
Circuit has recently determined, in Boehner v. 
McDermott, 191 F.3d 463 (D.C. Cir. 1999), that the 
First Amendment does not bar a civil damage action 
brought, pursuant to 18 U.S.C. § 2511(1)(c) and 18 
U.S.C. § 2520(a), and pursuant to the Florida statutory 
provisions that are counterparts of the federal statute, 
against one who, so the plaintiff alleged, gave to the 
New York Times and other newspapers copies of a tape 
recording of a telephone conversation which the 
defendant had “knowledge and reason to know” had 

43a 

been unlawfully intercepted.1 Today this court holds 
that the First Amendment does bar a civil damage 

1 In Boehner v. McDermott, the plaintiff, John Boehner, is a 
Republican Representative who, together with other members of 
the Republican leadership of the House of Representatives (includ- 
ing then Speaker Gingrich), was in 1996 party to a conference 
telephone call that was unlawfully intercepted by persons 
equipped with a radio scanner. According to Representative 
Boehner’s complaint, the interceptors turned over the tape to 
James A. McDermott, a Democratic Representative who was at 
the time the ranking minority member of the House Ethics Com- 
mittee; Representative McDermott in turn gave copies of the tape 
to the New York Times and other newspapers; and the New York 
Times promptly published part of the taped conversation. Repre- 
sentative Boehner sued Representative McDermott, but did not 
sue the New York Times or any other newspaper. The district 
court dismissed Representative Boehner’s complaint on First 
Amendment grounds. The circuit court reversed. 

The circuit court perceived a potentially important distinction 
between Representative McDermott’s First Amendment claim and 
the First Amendment claim that might have been made by the 
New York Times or another newspaper, if a newspaper had 
been named as a defendant. Identifying that potential distinction, 
the court was at pains to confine its analysis to Representative 
McDermott’s claim: 

McDermott’s liability under § 2511(1)(c) rests on the truth of 

two allegations: that he “caused a copy of the tape” to be given 
to the newspapers; and that he “did so intentionally and with 
knowledge and reason to know that the recorded phone con- 
versation had been illegally intercepted (as the cover letter on 
its face disclosed).” Complaint ¶ 20. Although the circum- 
stances of McDermott’s transactions with the newspapers, 
including who said what to whom, may become evidence at 
trial, it is his conduct in delivering the tape that gives rise 
to his potential liability under § 2511(1)(c). McDermott’s 
behavior in turning over the tapes doubtless conveyed a 
message, expressing something about him. All behavior does. 
But not all behavior comes within the First Amendment. 

44a 

action brought, pursuant to the Federal statute and its 
Pennsylvania counterpart, against (1) one who handed 
over a copy of a taped telephone conversation to a radio 
reporter, and (2) the radio reporter and the two radio 
stations that subsequently broadcast the tape, plaintiffs 
having alleged that both the person who handed over 
the tape and the radio reporter had, in the statutory 
language, “reason to know” that the taped conversation 
had been intercepted in contravention of the federal 
and Pennsylvania statutes. In the case decided today 
the court addresses a broader range of issues then 
those presented in Boehner v. McDermott: in Boehner 

“[E]ven on the assumption that there was [some] communi- 
cative element in” McDermott’s conduct, the Supreme Court 
has held that “when ‘speech’ and ‘nonspeech’ elements are 
combined in the same course of conduct, a sufficiently impor- 
tant governmental interest in regulating the nonspeech ele- 
ment can justify incidental limitations on First Amendment 
freedoms.” United States v. O’Brien, 391 U.S. 367, 376, 88 S. 
Ct. 1673, 20 L.Ed.2d 672 (1968). The O’Brien framework is 
the proper mode of First Amendment analysis in this case. 
McDermott’s challenge is only to the statute as it applies to his 
delivery of the tape to newspapers. Whether a different 
analysis would govern if, for instance, McDermott violated 
§ 2511(1)(c) by reading a transcript of the tape in a news 
conference, is therefore a question not presented here. Nor 
should we be concerned with whether § 2511(1)(c) would be 
constitutional as applied to the newspapers who published the 
initial stories about the illegally-intercepted conference call. 
The focus must be on McDermott’s activity and on his activity 
alone. 

191 F.3d at 467. 

The author of the court’s opinion was Judge Randolph. Judge 
Ginsburg filed a concurring opinion, joining part (including the 
paragraphs just quoted) of Judge Randolph’s opinion. Judge 
Santelle [sic] filed a dissenting opinion. 

45a 

v. McDermott the only defendant was the person who 
allegedly delivered to the media a copy of a tape of an 
allegedly wrongfully intercepted telephone conversa- 
tion; in today’s case there are three “media defendants” 
in addition to the defendant who allegedly delivered to 
the media a copy of a tape of an allegedly wrongfully 
intercepted telephone conversation.2 

I am in general agreement with the careful analytic 
path traced by the court through the minefield of First 
Amendment precedents. However, I find myself in 
disagreement with the court’s ultimate application of its 
analysis to the case at bar. 

Accordingly, I respectfully dissent.3 

2 The Boehner v. McDermott court was at pains to point out 
the limited scope of its ruling. See note 1, supra. See also note 3, 
infra. 

3 Although I have expressed general agreement with the 
court’s analytic approach, I should note one aspect of the analysis 
on which I differ with the court. That aspect is cogently illustrated 
by the distinction the Boehner v. McDermott court drew between 
the First Amendment posture of Representative McDermott 
and the potential First Amendment posture of a newspaper that 
published (as the New York Times in fact did) a portion of the 
intercepted telephone conference call, had such a newspaper been 
sued. As the Boehner v. McDermott excerpt quoted in footnote 1, 
supra, makes clear, the court was doubtful that Representative 
McDermott’s action in giving copies of the tape to newspapers 
was itself “speech” in the full First Amendment sense. Judge 
Randolph, speaking for the court, saw Representative McDer- 
mott’s First Amendment claim as cabined by the Supreme Court’s 
holding in United States v. O’Brien, 391 U.S. 367, 376, 88 S. Ct. 
1673, 20 L.Ed.2d 672 (1968), that “when ‘speech’ and ‘nonspeech’ 
elements are combined in the same course of conduct, a sufficiently 
important governmental interest in regulating the nonspeech 

46a 

I. 

I agree with the court’s statement of the case. And 
I agree with the court’s determination that the 
challenged federal and Pennsylvania wiretapping 
statutes—here invoked by plaintiffs seeking damages 
for defendants’ alleged disclosure and use of a taped 
telephone conversation of plaintiffs that defendants 
allegedly had “reason to know” was the product of 
a prohibited “interception of a wire . . . communi- 
cation,” 18 U.S.C. § 2511(c); 18 Pa. Cons. Stat. 
§ 5703(2)—are “content neutral.” I further agree with 
the court that the proper standard to be applied in 
testing the constitutionality of the federal and Penn- 
sylvania statutes as here applied is “intermediate 

element can justify incidental limitations on First Amendment 
freedoms.” 

In the case at bar, in which the plaintiffs have sued both Yocum 
and media defendants, the United States argues that the approach 
reflected in O’Brien and cases that follow it is appropriate to the 
entire case. The court rejects that view. I find the Boehner v. 
McDermott exposition of Representative McDermott’s limited 
First Amendment posture persuasive, and thus in the case at bar I 
would apply the O’Brien approach to defendant Yocum—whose 
role, from a First Amendment perspective, seems analogous to 
that of Representative McDermott—while rejecting O’Brien as 
the proper approach to the First Amendment claims of the media 
defendants. However, the distinction is not one that I need 
pursue, because, accepting for the purposes of the case at bar the 
court’s comprehensive rejection of O’Brien, I nonetheless wind up 
disagreeing with the court on how the court’s analytic approach 
plays out as applied, with the result that I conclude that liability in 
damages could constitutionally have been imposed both on Yocum 
and on the media defendants if the plaintiffs had been permitted to 
take their case to trial and had proved their allegations to the 
satisfaction of the fact-finder. 

47a 

scrutiny.” Finally, I agree with the court that 
intermediate scrutiny “always encompasses some 
balancing of the state interest and the means used to 
effectuate that interest.” Op., p. 124. Concretely, such 
scrutiny calls for judicial assessment of whether the 
challenged regulation is “narrowly tailored to serve a 
significant governmental interest.” Clark v. Com- 
munity for Creative Non-Violence, 468 U.S. 288, 293, 
104 S. Ct. 3065, 82 L.Ed.2d 221 (1984).4 

Where I part company with the court is in its appli- 
cation of intermediate scrutiny in this case. 

A. 

The court begins by acknowledging what I take to 
be beyond dispute: namely, that the professed 
governmental interest—the interest of the United 
States (which is presumably also Pennsylvania’s 
interest) in “maintain[ing] the confidentiality of wire, 
electronic, and oral communications,” Brief for the 
United States, p. 33—is “a significant state interest.” 
Op., supra, p. 125. Then—evidently with a view to 
exploring whether the challenged prohibition on dis- 
closure or use of a conversation by one who had “reason 
to know” that the conversation was intercepted 
unlawfully is “narrowly tailored to serve [that] signifi- 

4 The other criterion identified in Clark v. Community for 
Creative Non-Violence—namely, whether the challenged regula- 
tion “leave[s] open ample alternative channels for communication 
of the information” 468 U.S. at 293, 104 S. Ct. 3065—is not 
pertinent to the case at bar because the challenged statutes are 
not, as the challenged regulations in Clark v. Community for 
Creative Non-Violence were deemed to be, “time, place or manner 
restrictions.” Ibid. And see id. at 295, 104 S. Ct. 3065. 

48a 

cant governmental interest”—the court undertakes to 
“focus on the United States’ . . . contention . . . that 
the provisions promote privacy by eliminating the 
demand for intercepted materials on the part of third 
parties.” Op., p. 125. The court then proceeds as 
follows: 

The connection between prohibiting third parties 
from using or disclosing intercepted material and 
preventing the initial interception is indirect at best. 
The United States has offered nothing other than its 
ipse dixit in support of its suggestion that imposing 
the substantial statutory damages provided by the 
Acts on Yocum or the media defendants will have 
any effect on the unknown party who intercepted 
the Bartnicki-Kane conversation. Nor has the 
United States offered any basis for us to conclude 
that these provisions have deterred any other 
would-be interceptors. Given the indirectness of the 
manner in which the United States claims the 
provisions serve its interest, we are not prepared to 
accept the United States’ unsupported allegation 
that the statute actually produces the hypothesized 
effect. See Landmark Communications, Inc. v. 
Virginia, 435 U.S. 829, 841, 98 S. Ct. 1535, 56 
L.Ed.2d 1 (1978) (“The Commonwealth has offered 
little more than assertion and conjecture to support 
its claim that without criminal sanctions the objec- 
tives of the statutory scheme would be seriously 
undermined.”). Faced with nothing “more than 
assertion and conjecture,” it would be a long stretch 
indeed to conclude that the imposition of damages 
on defendants who were unconnected with the inter- 
ception even “peripherally promoted” the effort to 

49a 

deter interception. See Village of Schaumburg, 444 
U.S. at 636, 100 S. Ct. 826. 

When the state seeks to effectuate legitimate state 
interests, 

it must do so by narrowly drawn regulations de- 
signed to serve those interests without unneces- 
sarily interfering with First Amendment freedoms. 
Hynes v. Mayor of Oradell, 425 U.S. at 620, 96 S. Ct. 
1755; First National Bank of Boston v. Bellotti, 435 
U.S. 765, 786, 98 S. Ct. 1407, 55 L.Ed.2d 707 (1978). 
“Broad prophylactic rules in the area of free 
expression are suspect. Precision of regulation must 
be the touchstone . . . .” NAACP v. Button, 371 

U.S. 415, 438, 83 S. Ct. 328, 9 L.Ed.2d 405 (1963) 
(citations omitted). 

Village of Schaumburg, 444 U.S. at 637, 100 S. Ct. 826. 

In Village of Schaumburg, the Court stated that 
the Village’s legitimate interest in preventing fraud 
could be better served by requiring solicitors to 
inform the public of the uses made of their contri- 
butions, than by prohibiting solicitation. Id. Simi- 
larly, in Martin v. Struthers, 319 U.S. 141, 147-48, 63 
S. Ct. 862, 87 L.Ed. 1313 (1943), the Court held that 
in lieu of a complete prohibition of door-to-door 
solicitation, with its draconian impact on First 
Amendment values, the City could have used the 
less restrictive means of punishing those who 
trespass “in defiance of the previously expressed 
will of the occupant.” Indeed, the Wiretapping Acts 
already provide for punishment of the offender, i.e., 
the individual who intercepted the wire communi- 
cation and who used or disclosed it. See Schneider, 
308 U.S. at 162, 60 S. Ct. 146 (city should prevent 

50a 

littering by punishing litterers, not by prohibiting 
leafleting). Those who indirectly participated in the 
interception, either by aiding or abetting, would 
also fall within the sanctions provided by the 
statute. Therefore, the government’s desired effect 
can be reached by enforcement of existing pro- 
visions against the responsible parties rather than 
by imposing damages on these defendants. 

Op. p. 125-27. 

With all respect, I find this portion of the court’s 
opinion unpersuasive: 

First: I take issue with the proposition that “[t]he 
connection between prohibiting third parties from using 
or disclosing intercepted material and preventing the 
initial interception is indirect at best.” “[P]reventing 
the initial interception” is only part of the statutory 
scheme. The statutory purposes, as the court has 
noted, are “(1) protecting the privacy of wire and oral 
communications, and (2) delineating on a uniform basis 
the circumstances and conditions under which the 
interception of wire and oral communications may be 
authorized.” S. Rep. No. 90-1097 (1968), reprinted in 
1968 U.S.C.C.A.N. 2112, 2153. Unauthorized intercep- 
tion of a communication is prohibited—and made both a 
criminal offense and an event giving rise to civil 
liability—both to protect parties to a communication 
from an initial trespass on their privacy and to protect 
them from subsequent disclosure (and/or other detri- 
mental use). “Unless disclosure is prohibited, there will 
be an incentive for illegal interceptions; and unless 
disclosure is prohibited, the damage caused by an illegal 
interception will be compounded. It is not enough to 

51a 

prohibit disclosure only by those who conduct the 
unlawful eavesdropping. One would not expect them to 
reveal publicly the contents of the communication; if 
they did so they would risk incriminating themselves. 
It was therefore ‘essential’ for Congress to impose upon 
third parties, that is, upon those not responsible for the 
interception, a duty of non-disclosure.” Boehner v. 
McDermott, 191 F.3d at 470. 

Second: Given the close nexus between the legisla- 
tive prohibition on unauthorized interception and the 
legislative imposition upon “third parties, that is, upon 
those not responsible for the interception, [of] a duty of 
non-disclosure,” I am puzzled by the court’s view that 
the argument presented by the United States in sup- 
port of the statutory regime of civil liability lacks per- 
suasiveness because it is not supported by a demonstra- 
tion that “imposing the substantial statutory damages 
provided by the Acts on Yocum or the media defen- 
dants will have any effect on the unknown party who 
intercepted the Bartnicki-Kane conversation,” or “that 
these [statutory] provisions have deterred any other 
would-be interceptors.” Nor do I think the court’s view 
is buttressed by the court’s invocation of Landmark 
Communications, Inc. v. Virginia, 435 U.S. 829, 98 S. 
Ct. 1535, 56 L.Ed.2d 1 (1978). It is true that in Land- 
mark, in which the Supreme Court struck down, as 
applied to a newspaper, a statute making it a mis- 
demeanor to “divulge information” about confidential 
proceedings conducted by Virginia’s Judicial Inquiry 
and Review Commission, the Court observed that 
“[t]he Commonwealth has offered little more than 
assertion and conjecture to support its claim that with- 
out criminal sanctions the objectives of the statutory 
scheme [which contemplated a process of confidential 

52a 

inquiry into alleged judicial misconduct] would be 
seriously undermined.” But the special—and limited— 
pertinence of the Court’s observation becomes clear 
when it is read in context. The full paragraph follows: 

It can be assumed for purposes of decision that 
confidentiality of Commission proceedings serves 
legitimate state interests. The question, however, is 
whether these interests are sufficient to justify the 
encroachment on First Amendment guarantees 
which the imposition of criminal sanctions entails 
with respect to nonparticipants such as Landmark. 
The Commonwealth has offered little more than 
assertion and conjecture to support its claim that 
without criminal sanctions the objectives of the 
statutory scheme would be seriously undermined. 
While not dispositive, we note that more than 40 
States having similar commissions have not found it 
necessary to enforce confidentiality by use of 
criminal sanctions against nonparticipants. 

435 U.S. at 841, 98 S. Ct. 1535. In striking contrast is 
the legislative landscape that forms the setting of the 
case at bar. Complementing the federal statute are 
more than forty state wiretapping statutes. Of these 
state statutes, approximately half have provisions 
which, like the federal statute, (1) prohibit disclosure or 
use of an intercepted conversation by one who knows or 
has “reason to know” that the interception was un- 
lawful, and (2) authorize civil damage actions against 
one who discloses or uses such unlawful interception. 
As this case illustrates, Pennsylvania is one of 
those states. So are Delaware and New Jersey— 
Pennsylvania’s Third Circuit siblings. See 11 Del. Code 
Ann., § 1336 (1996); N.J. Stat. Ann. §§ 2A-156-A-3; 2A- 
156-A-24 (West 1985 & Supp. 1999). Listed in footnote 

53a 

5 are the other state statutes that closely parallel the 
provisions of the federal and Pennsylvania legislation 
challenged by defendants in the case at bar.5 

In short, there appears to be a widespread legislative 
consensus that the imposition of civil liability on 
persons engaged in conduct of the kind attributed to 
these defendants is an important ingredient of a regime 
designed to protect the privacy of private conversa- 
tions. Moreover, the decision announced today not only 
invalidates a portion of the federal statute and the 
counterpart portion of the Pennsylvania statute, it by 
necessary implication spells the demise of a portion of 
more than twenty other state statutes (and also of a 
statute of the District of Columbia); in the two centu- 
ries of our constitutional history there cannot have been 
more than a handful of prior decisions, either of a 
federal court or of a state court, which, in the exercise 
of the awesome power of judicial review, have cut so 
wide a swath. 

Third: What has been said points up the non- 
pertinence to the case at bar of Schneider v. State, 308 

5 Fla. Stat. Ann. §§ 934.03, 812.15; Haw. Rev. Stat. §§ 803- 
42(a)(3), 803-48; Idaho Code §§ 18-6702, 18-6709; 720 Ill. Comp. 
Stat. Ann. 5/14-2, 5/14-6; Iowa Code §§ 808B.2(1)(c), 808B.8; La. 
Rev. Stat. Ann. §§ 15:1303 A(3), 15:1312; Md. Code Ann. §§ 10- 
402(a)(2), 10-410; Mich. Comp. Laws Ann. §§ 750.539e, 750.539h; 
Minn. Stat. Ann. §§ 626A.02(c), 626A.13; Neb. Rev. Stat. §§ 86-702; 
N.H. Rev. Stat. Ann. §§ 570-A:2, 570-A:11; N.C. Gen. Stat. §§ 15A- 
287, 15A-296; Ohio Rev. Code Ann. §§ 2933.52, 2933.65; Tenn. Code 
Ann. §§ 39-13-601, 39-13-603; Utah Code Ann. §§ 77-23a-4, 77-23a- 
11; Va. Code Ann. §§ 19.2-62, 19.2-69; W. Va. Code §§ 62-1D-3, 62- 
1D-12; Wis. Stat. § 968.31; Wyo. Stat. Ann. §§ 7-3-602, 7-3-609; See 
also D.C. Code Ann. §§ 23-542, 23-554. 

54a 

U.S. 147, 60 S. Ct. 146, 84 L.Ed. 155 (1939), Martin v. 
Struthers, 319 U.S. 141, 63 S. Ct. 862, 87 L.Ed. 1313 
(1943), and Village of Schaumburg v. Citizens for a 
Better Environment, 444 U.S. 620, 100 S. Ct. 826, 63 
L.Ed.2d 73 (1980), cases cited by the court as illustra- 
tive of the proposition that regulations designed to 
promote significant governmental interests should not 
sweep so broadly as to impose unnecessary constraints 
on First Amendment rights of free expression and 
communication. The constitutional shortcomings in 
Schneider (combating the littering of streets by curbing 
leafleting), Struthers (banning door-to-door distribution 
of circulars, including religious literature, in order to 
protect homeowners from annoyance), and Village of 
Schaumburg (combating allegedly fraudulent charitable 
solicitation by banning all solicitation by groups not 
disbursing 75% of receipts) involved situations in which 
small towns imposed on traditional First Amendment 
activities pervasive constraints sought to be justified 
as ways of dealing with distinct (and not very 
important) problems that could have been more 
effectively addressed by governmental action directed 
at the actual problems—e.g., prosecuting litterers 
(Schneider); prosecuting as trespassers solicitors who 
do not depart when requested by homeowners to do so 
(Struthers); requiring organizations soliciting contribu- 
tions to disclose how receipts are used (Village of 
Schaumburg). In the case at bar, unauthorized dis- 
closure (or other use) of private conversations is a 
central aspect of the very evil the challenged statutory 
provisions are designed to combat. 

55a 

B. 

The court also notes that “[r]eporters often will not 
know the precise origins of information they receive 
from witnesses and other sources, nor whether the 
information stems from a lawful source,” or, indeed, 
“whether material they are considering publishing has 
previously been disclosed to the public.” Op., p. 127, As 
a result, the court opines, “[i]t is likely that in many 
instances these [challenged statutory] provisions will 
deter the media from publishing even material that may 
lawfully be disclosed under the Wiretapping Acts.” 
Ibid. 

I think the court overstates the potential problems of 
the media. One would suppose that a responsible 
journalist—whether press or broadcast—would be 
unlikely to propose publication of a transcript of an 
apparently newsworthy conversation without some 
effort to insure that the conversation in fact took place 
and to authenticate the identities of the parties to the 
conversation. As part of such an inquiry, the question 
whether the parties to the conversation had authorized 
its recording and release, or whether others had law- 
fully intercepted the conversation, would seem natu- 
rally to arise. Moreover, current technology would 
make it relatively easy to determine whether the 
conversation had been the subject of a prior press or 
broadcast report.6 

6 On occasion, inquiry of the kind suggested might indeed take 
a few days. But news reporting—especially with respect to 
events (such as a conversation) that are concluded, rather than still 
evolving—need not be an instant process. In the case at bar, it 
appears that defendant Vopper did not broadcast the conversation 

56a 

In my judgment, a more substantial First Amend- 
ment difficulty is posed by the fact that the person or 
entity charged with knowing or having “reason to 
know” that a published conversation was unlawfully 
intercepted is called on to contest before a judicial fact- 
finder (whether jury or judge) a plaintiff ’s allegation of 
knowledge or “reason to know.” But the difficulties 
attendant on fact-finder oversight of journalistic prac- 
tice (or, indeed, of public disclosure by non-journalists) 
can, I believe, be met by adoption of the procedural 
proposals advanced in the brief for the United States: 

In criminal prosecutions under Title III, scienter 
must be proved beyond a reasonable doubt. In civil 
cases scienter ordinarily would be subject to a con- 
ventional preponderance-of-the-evidence standard. 
When a claim is brought for disclosure of infor- 
mation about matters of public significance by 
persons who were not involved in the illegal inter- 
ception, however, a preponderance-of-the-evidence 
standard may operate to deter the publication of 
information that was not the product of illegal 
surveillance. To avoid that result, it might prove 

until some months after defendant Yocum gave him a copy of the 
tape. Deposition of Frederick W. Vopper, App. 60a-61a. On the 
other hand, the New York Times published a portion of the 
intercepted conversation that gave rise to Boehner v. McDermott 
the day after it received the tape. The New York Times story also 
reported that the tape had been “made . . . 

available to the New 

York Times” by “a Democratic Congressman hostile to Mr. 
Gingrich who insisted that he not be identified further” and who 
told the Times that the tape had been given to him [on January 8, 
1997] by a couple who said the tape “had been recorded [on De- 
cember 21, 1996] off a radio scanner, suggesting that one partici- 
pant was using a cellular telephone.” N.Y. Times, January 10, 
1997, p. 1, col.3. 

57a 

appropriate for district courts to impose a higher 
standard of proof of scienter in such cases, such as 
proof by “clear and convincing” evidence, and for 
appellate courts to conduct independent review of 
the findings of the trier of fact. Cf. Gertz v. Robert 
Welch, Inc., 418 U.S. 323, 342, 94 S. Ct. 2997, 41 
L.Ed.2d 789 (1974) (requiring clear and convincing 
evidence of “actual malice” in defamation cases); 
Bose Corp. v. Consumers Union of United States, 
Inc., 466 U.S. 485, 498-511, 104 S. Ct. 1949, 80 
L.Ed.2d 502 (1984) (de novo appellate review of 
findings regarding actual malice). See generally 
Waters v. Churchill, 511 U.S. 661, 669-71, 114 S. Ct. 
1878, 128 L.Ed.2d 686 (1994) (plurality opinion) (dis- 
cussing circumstances in which First Amendment 
requires modifications of burdens of proof and other 
procedural rules). 

Brief for the United States, pp. 40-41 n. 8.7 

II. 

As the court’s opinion makes plain, the First Amend- 
ment values of free speech and press are among the 
values most cherished in the American social order. 

7 The court’s decision has the anomalous consequence of cloak- 
ing Yocum, who is not a “media defendant”, with the First Amend- 
ment protections the court deems appropriate for radio reporter 
Vopper and the two radio stations. I have undertaken to explain in 
footnote 3, supra, that in my judgment Yocum has a far more 
tenuous First Amendment claim (if any) than the media de- 
fendants. I do not think that, merely by virtue of the fortuity that 
the plaintiffs have elected to sue Yocum and the media defendants 
(which the plaintiff in Boehner v. McDermott did not do), Yocum 
becomes a third-party beneficiary of whatever First Amendment 
protections may accrue to the media defendants. 

58a 

Maintenance of these values (and the other values of 
the Bill of Rights) against overreaching by the legis- 
lature or the executive is among the judiciary’s major 
and most demanding responsibilities. In the case at 
bar, however, the First Amendment values on which 
defendants take their stand are countered by privacy 
values sought to be advanced by Congress and the 
Pennsylvania General Assembly that are of comparable 
—indeed kindred—dimension. Three decades ago the 
late Chief Judge Fuld of the New York Court of 
Appeals put the matter well in Estate of Hemingway v. 
Random House, 23 N.Y.2d 341, 348, 296 N.Y.S.2d 771, 
244 N.E.2d 250, 255 (1968) (in words that the Supreme 
Court has quoted with approval, Harper & Row 
Publishers v. Nation Enterprises, 471 U.S. 539, 560, 105 
S. Ct. 2218, 85 L.Ed.2d 588 (1985)): 

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. 

59a 

APPENDIX B 

IN THE UNITED STATES DISTRICT COURT 
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA 

CIVIL NO. 3:CV-94-1201 

(Judge Kosik) 

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

v. 

FREDERICK W. VOPPER, A/K/A FRED WILLIAMS, 
KEYMARKET OF NEPA, INC., D/B/A WILK RADIO, 
LACKAZERNE, INC., D/B/A WGBI RADIO, JANE DOE 
AND JOHN DOE, AND JACK YOCUM, DEFENDANTS 

[Filed: June 17, 1995] 

MEMORANDUM 

Before the court are respective motions for summary 
judgment filed by Plaintiffs Bartnicki and Kane; 
Defendant Yocum; and Defendants Frederick Vopper, 
a/k/a Fred Williams; Keymarket of NEPA, Inc., d/b/a 
WILK Radio; and Lackazerne, Inc., d/b/a WGBI Radio 
(Media Defendants). The matter involves allegations of 
violations of Title III of the Omnibus Crime Control 
and Safe Streets Act of 1968, 18 U.S.C. §§ 2511, 2520, 
and the Pennsylvania Wiretapping and Electronic 
Surveillance Control Act, 18 Pa. Con. Stat. Ann. § 5701 
et seq. [hereinafter electronic surveillance acts]. For 

60a 

the following reasons, we deny the motions for sum- 
mary judgment. 

I. Background 

Plaintiff Gloria Bartnicki is employed by the Penn- 
sylvania State Education Association (PSEA) and, at 
relevant times, was assigned as a negotiator in a con- 
tract dispute between the teachers’ union and Wyoming 
Valley West School District. Plaintiff Anthony Kane, 
Jr., was a teacher at Wyoming Valley West High School 
and president of the PSEA’s local union representing 
the teachers of the school district. 

During the pendency of the negotiations between the 
teachers’ union and the school board, a citizens group, 
Wyoming Valley West Taxpayers Association (Associa- 
tion), was formed for the purpose of opposing the 
union’s proposals. Defendant Jack Yocum was pre- 
sident of the Association. 

It is represented that the contract negotiations were 
the regular subject of the local media. 

In May of 1993, Plaintiffs Bartnicki and Kane en- 
gaged in a telephone conversation about the union’s 
demands and the negotiations. The conversation oc- 
curred via a transmission from Plaintiff Bartnicki’s 
cellular car phone and Plaintiff ’s Kane conventional 
household telephone line. The conversation was inter- 
cepted and recorded by an unidentified party. The 
Plaintiffs allege that the interception of their communi- 

61a 

cation was intentional, while the Defendants argue that 
the interception was inadvertent and unintentional.1 

The Defendants’ acquisition of the intercepted com- 
munication allegedly occurred as follows. A cassette 
containing a recording of the conversation was placed in 
Defendant Yocum’s mailbox without any markings 
identifying the depositing party or the person who 
made the recording. Defendant Yocum played the tape 
and recognized the voices as those belonging to the 
Plaintiffs. 

There exists some dispute as to whom Defendant 
Yocum played the tape, but it is undisputed that 
Defendant Yocum provided Defendant Vopper of 
Defendant WILK’s radio station with the recording. 
The recording was aired during Defendant Vopper’s 
radio program. 

II. STANDARD OF REVIEW 

Rule 56(c) of the Federal Rules of Civil Procedure 
states: 

Summary judgment shall be rendered forthwith if 
the pleadings, depositions, answers to interrogato- 
ries, and admissions on file together with any 
affidavits, if any, show that there is no genuine issue 
as to any material fact and that the moving party is 
entitled to a judgment as a matter of law.2 

1 Both parties have failed to supply any facts regarding the 
interception. However, both parties supply the court with theories 
on the methods of intercepting cellular communications. 

2 Fed. R. Civ. P. 56. 

62a 

The Supreme Court has held that Rule 56(c) “man- 
dates the entry of summary judgment, after adequate 
time for discovery and upon motion, against a party 
who fails to make a showing sufficient to establish the 
existence of an element essential to that party’s case, 
and on which that party will bear the burden of proof at 
trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. 
Ct. 2548, 2551 (1986). Summary judgment will not lie if 
the dispute about a material fact is “genuine,” that is, if 
the evidence is such that a reasonable jury could return 
a verdict for the non-moving party.” Anderson v. 
Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 
2510 (1986); see also Gile v. Optical Radiation Corp., 22 
F.3d 540, 541 (3d Cir.), cert. denied, 115 S. Ct. 429 
(1994). 

Initially, to support its motion for summary judg- 
ment, the moving party must show the absence of a 
genuine issue concerning any material fact. Celotex, 
477 U.S. at 322-23. Once the moving party has satisfied 
its burden, the non-moving party must present “affirm- 
ative evidence” to defeat the motion for summary 
judgment, consisting of verified or documented materi- 
als. See Lujan v. National Wildlife Fed’n, 497 U.S. 871, 
888-89, 110 S. Ct. 3177, 3189 (1990); Anderson, 477 U.S. 
at 256-57. Mere conclusory allegations or denials taken 
from the pleadings are insufficient. Schoch v. First 
Fidelity, 912 F.2d 654, 657 (3d Cir. 1990) (citations 
omitted). 

In evaluating a motion for summary judgment, the 
entire record must be examined in the light most 
favorable to the non-moving party, giving that party 
the benefit of all reasonable inferences derived from the 
evidence. Torre v. Casio, Inc., 42 F.3d 825, 830 (3d Cir. 
1994); White v. Westinghouse Electric Company, 862 
F.2d 56, 59 (3d Cir. 1988). 

63a 

III. DISCUSSION 

Media Defendants motion this court for the granting 
of summary judgment because 1) they did not violate 
the electronic surveillance acts and 2) they are 
protected by the First Amendment. 

Media Defendants’ first argument is that they did not 
violate the applicable statutory provisions. See Docu- 
ment 56 at 12. In moving for summary judgment, 
Media Defendants state that the record establishes 
that Media Defendants did not intercept or tape the 
electronic communication between the Plaintiffs. We 
agree that there exists no genuine issue as to this fact, 
but that is not dispositive of Media Defendants’ com- 
pliance with the electronic surveillance acts. The 
federal statute provides that a person violates the act if 
he “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.” 18 U.S.C. § 2511(1)(c) 
(1996) (emphasis added). The state electronic sur- 
veillance statute parallels the federal statutory lan- 
guage. See 18 Pa. Con. Stat. § 5703. Accordingly, a 
violation of these acts can occur by the mere finding 
that a defendant had a reason to believe that the 
communication that he disclosed or used was obtained 
through the use of an illegal interception. Such an 
interpretation of the statute adheres to the purpose of 
the act which was to protect wire and oral communi- 
cations and an individual’s privacy interest in such. To 
allow a third party who is provided access to the 
intercepted communications to use the contents of the 

64a 

intercepted communications knowing or having reason 
to know that such communications were illegally inter- 
cepted would defeat the purpose of both the federal and 
state act. See Natoli v. Sullivan, 606 N.Y.2d 504, 507 
(N.Y. Sup. Ct. 1993), aff’d, 616 N.Y.S.2d 318 (N.Y. App. 
Div. 1994). 

In reviewing the record, we believe that there exists 
a genuine issue as to a material fact as to whether 
Media Defendants knew or had reason to know that the 
communication was illegally intercepted. See Forsyth 

v. Barr, 19 F.3d 1527, 1539 (5th Cir.), cert. denied, 115 S. 
Ct. 195 (1994). Media Defendants point out that there 
exists a great likelihood that the conversation was 
inadvertently intercepted and recorded, thus outside 
the scope of both statutory provisions. See Document 
56 at 7-8 (providing circumstances in which the cellular 
conversation might have been intercepted unin- 
tentionally); Document 72 at 2 (citing Bayges v. 
SEPTA, 144 F.R.D. 269, 271-72 (E.D. Pa. 1992), for the 
proposition that unintentional interceptions do not 
offend the statute). On the other hand, the Plaintiffs 
note that there exists references within the conver- 
sation indicating the confidential nature of the con- 
versation and the fact that it was being conducted via a 
cellular telephone, as well as the relative difficulty in 
intercepting such a communication. See Document 53 
at 7-10; Document 54; Document 68 at 9-13. Therefore, 
Media Defendants’ motion for summary judgment as it 
pertains to the argument that they did not violate the 
electronic surveillance acts is denied. 

Defendant Yocum moves for summary judgment also 
alleging that he was not involved in intercepting the 
communication and that the communication may have 

65a 

been legally intercepted. See Document 45; Document 
49 at 13-18. The record reflects that Defendant Yocum 
used and disclosed the contents of the conversation, as 
evidenced in his uncontroverted disclosure of the 
recording to Media Defendants. In accordance with our 
analysis of Media Defendants’ argument on this issue, 
we find that there exists a genuine issue of material 
facts as it pertains to Defendant Yocum knowing or 
having reason to know that the communications were 
illegally intercepted. Therefore, it is inappropriate for 
us to grant summary judgment to Defendant Yocum on 
this ground. 

Media Defendants also move for summary judgment 
based on their First Amendment rights. They assert 
that the broadcasting of the audiotape which was 
“newsworthy” was protected by the First Amendment 
and therefore was not prohibited by the electronic 
surveillance acts. 

Media Defendants correctly note that it is well- 
established that where the media lawfully obtains 
truthful information about a matter of public signifi- 
cance or concern, government officials may not consti- 
tutionally punish the publication of that information 
absent the need to further a government interest of a 
higher order. See Document 56 at 14 (citing Landmark 
Communications, Inc. v. Virginia, 435 U.S. 829, 98 S. 
Ct. 1535 (1978); Smith v. Daily Mail Publishing Co., 
443 U.S. 97, 99 S. Ct. 2667; Florida Star v. B.J.F., 491 
U.S. 524, 109 S. Ct. 2603 (1989); Oklahoma Publishing 
Co. v. United States, 515 F. Supp. 1255, 1259 (W.D. Ok. 
1981)). However, these cases addressed matters where 
a state actor attempted to place a prior restraint on 

66a 

specified speech or where the intentional interception 
was legal but the disclosure was illegal. 

In the matter before this court, there exist no 
statutory provisions specifically designed to chill free 
speech. Rather, at issue is the federal and state 
electronic surveillance laws which are general appli- 
cation laws. These surveillance laws apply equally to 
the general public and impose no further restrictions on 
the media. Accordingly, there exists no indicia of prior 
restraint or the chilling of free speech. 

The Supreme Court has specifically addressed the 
constitutionality of general application laws as they 
pertain to the media. See Cohen v. Cowles Media Co., 
501 U.S. 663, 668-70, 111 S. Ct. 2513, 2518 (1991). The 
Supreme Court in Cohen addressed the imposition of a 
fine levied against a publisher for the publication of a 
confidential informant’s identity. The case was 
analyzed pursuant to Minnesota’s doctrine of prom- 
issory estoppel, and the Court deemed the doctrine as 
one of general applicability. See id. at 670. The Court, 
in distinguishing a similar line of cases that Media 
Defendants here rely on, stated that it is “well- 
established” that generally applicable laws “do not 
offend the First Amendment simply because their 
enforcement against the press has incidental effects on 
its ability to gather and report the news.” Id. at 669. 
The Court recognized that such a statement applies 
even when the information obtained was truthful 
because, as the Court stated, “it is beyond dispute that 
the publisher of a newspaper has no special immunity 
from the application of general laws. He has no special 
privilege to invade the rights and liberties of others.” 
Id. at 670 (internal quotation marks omitted). 

67a 

In reviewing both the federal and the state electronic 
surveillance laws, we conclude that both acts are 
matters of general applicability. We do not find that 
the statutes target or single out the press. We, there- 
fore, deny Media Defendants’ motion for summary 
judgment as it applies to this argument. 

Defendant Yocum, in his motion for summary judg- 
ment, additionally argues that he was a “newsgather” 
for Media Defendants and therefore should be afforded 
the same First Amendment protections. See Document 
49 at 19-21. The same analysis applies, and Defendant 
Yocum’s motion for summary judgment on the basis of 
the First Amendment also fails. 

Plaintiffs Bartnicki and Kane also move this court for 
summary judgment because “the pleadings and dep- 
ositions demonstrate that there are no disputed 
material issues of fact regarding the question of 
whether the Defendants, Vopper, WILK and Yocum 
intentionally disclosed and published the surrepti- 
tiously taped telephone conversation between the 
Plaintiffs, Bartnicki and Kane without their per- 
mission.” See Document 40. The Plaintiffs assert that 
such a showing demonstrates the Defendants’ violation 
of the electronic surveillance acts and entitles them to 
summary judgment. Although the court agrees that 
there exists no genuine issue of material fact as it 
relates to Defendant Yocum using the communication 
and disclosing it to Media Defendants and to Media 
Defendants’ use and disclosure of the communication to 
its listening audience, such a showing is insufficient to 
demonstrate a violation of the applicable statutes. 

68a 

The electronic surveillance acts seek to impose both 
criminal and civil sanctions on the interception, use, or 
disclosure of illegally intercepted electronic communi- 
cations. However, the acts do not impose criminal or 
civil penalties for legally intercepted communications. 
For instance, the federal and state electronic sur- 
veillance laws do not prohibit the interception, use, or 
disclosure of unintentionally intercepted communica- 
tions. See 18 U.S.C. § 2511 (1995); 18 Pa. Con. Stat. 
Ann. § 5704 (1995). The record reveals that there exists 
a genuine issue of material fact with regard to whether 
the communication was illegally intercepted. In ad- 
dition, there exists a genuine issue as to whether the 
Defendants knew or should have known that the 
communication was illegally intercepted. 

Because the legality of the interception and the 
Defendants’ state of mind are material facts at issue, we 
deny the Plaintiff ’s motion for summary judgment. 

IV. CONCLUSION 

We find that there exists genuine issues as to 
material facts, and we accordingly deny all the motions 
for summary judgment. 

69a 

APPENDIX C 

IN THE UNITED STATES DISTRICT COURT 
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA 

CIVIL NO. 3:CV-94-1201 

(Judge Kosik) 

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

v. 

FREDERICK W. VOPPER, A/K/A FRED WILLIAMS, 
KEYMARKET OF NEPA, INC., D/B/A WILK RADIO, 
LACKAZERNE, INC., D/B/A WGBI RADIO, JANE DOE 
AND JOHN DOE, AND JACK YOCUM, DEFENDANTS 

ORDER 

AND NOW, this 14th day of June, 1996, IT IS 
HEREBY ORDERED THAT: 

[1] Defendants Frederick Vopper, a/k/a Fred 
Williams; Keymarket of NEPA, Inc., d/b/a WILK 
Radio; and Lackazerne, Inc., d/b/a WGBI Radio’s mo- 
tion for summary judgment [Document 43] is denied; 

[2] Defendant Yocum’s motion for summary judg- 
ment [Document 45] is denied; 

[3] Plaintiffs Bartnicki and Kane’s motion for sum- 
mary judgment [Document 40] is denied; and 

[4] a pretrial conference shall be set forthwith. 

/s/ EDWIN M. KOSIK 
EDWIN M. KOSIK 
United States District Judge 

70a 

APPENDIX D 

IN THE UNITED STATES DISTRICT COURT 
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA 

CIVIL NO. 3:CV-94-1201 

(Judge Kosik) 

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

v. 

FREDERICK W. VOPPER, A/K/A FRED WILLIAMS, 
KEYMARKET OF NEPA, INC., D/B/A WILK RADIO, 
LACKAZERNE, INC., D/B/A WGBI RADIO, JANE DOE 
AND JOHN DOE, AND JACK YOCUM, DEFENDANTS 

[Filed: Nov. 8, 1996] 

MEMORANDUM 

Before the court is Defendants’ motion to reconsider 
our decision of June 17, 1996, where we denied the cross 
motions for summary judgment. See Document 73. The 
matter involves allegations of violations of Title III of 
the Omnibus Crime Control and Safe Streets Act of 
1968, 18 U.S.C. §§ 2511, 2520, and the Pennsylvania 
Wiretapping and Electronic Surveillance Control Act, 
18 Pa. Con. Stat. Ann. § 5701 et seq. [hereinafter acts]. 
For the following reasons, we deny the motion for 
reconsideration. 

71a 

I. STANDARD OF REVIEW 

“The purpose of a motion for reconsideration is to 
correct manifest errors of law or fact or to present 
newly discovered evidence.” Harsco Corp. v. Zlotnicki, 
779 F.2d 906, 909 (3d Cir. 1985), cert. denied, 476 U.S. 
1171 (1986). As one court has noted: 

The motion to reconsider would be appropriate 
where, for example, the Court has patently mis- 
understood a party, or has made a decision outside 
of the adversarial issues presented to the Court by 
the parties, or has made an error not of reasoning 
but of apprehension. A further basis for a motion to 
reconsider would be a controlling or significant 
change in the law or facts since the submission of 
the issue to the Court. Such problems rarely arise 
and the motion to reconsider should be equally rare. 

Above the Belt, Inc. v. Mel Bohannan Roofing, Inc., 99 
F.R.D. 99, 101 (E.D. Va. 1983). 

Parties must remember that a motion for recon- 
sideration is not an appeal. Therefore, it is improper on 
a motion for reconsideration for the party to request 
“the Court to rethink what it had already thought 
through—rightly or wrongly.” Id. Thus, a party “must 
show more than a disagreement with the court’s de- 
cision.” Panna v. Firstrust Sav. Bank, 760 F. Supp. 
432, 435 (D. N. J. 1991). 

72a 

III. DISCUSSION 

Defendants1 motion this court to reconsider our 
denial of summary judgment because 1) Plaintiffs were 
unable to demonstrate the ability to prove at trial a 
necessary element of their case, i.e. that the conver- 
sation was intentionally intercepted and therefore 
illegal and 2) Defendants are protected by the First 
Amendment. 

First, Defendants contend that Plaintiffs’ failed to 
demonstrate a material element of their case. De- 
fendants argue that Plaintiffs’ were required to show 
that the interception of the conversation was not 
inadvertent, and, therefore, illegal. We addressed this 
issue in detail in our previous Order. Both the federal 
and state acts impose liability to a user if he “knew or 
had reason to know” that the communication was 
intercepted. See 18 U.S.C. § 2511 (1996); 18 Pa. C.S.A. 
§ 5703. In addressing these provisions in our previous 
Order, we stated: 

Accordingly, a violation of these acts can occur by 
the mere finding that a defendant had a reason to 
believe that the communication that he disclosed or 
used was obtained through the use of an illegal 
interception. Such an interpretation of the statute 
adheres to the purpose of the act which was to 
protect wire and oral communications and an 

1 Defendants Frederick Vopper; Keymarket of NEPA, Inc.; 
and Lackazerne, Inc. (Media Defendants) and Defendant Yocum 
filed separate motions. See Document 75; Document 76. However, 
both motions address similar issues, and accordingly we need only 
address the motion for reconsideration in the singular. 

73a 

individual’s privacy interest in such. To allow a 
third party who is provided access to the inter- 
cepted communications to use the contents of the 
intercepted communications knowing or having 
reason to know that such communications w[as] 
illegally intercepted would defeat the purpose of 
both the federal and state act. 

Document 73 at 5 (citations omitted). 

Therefore, a violation of the acts can occur by the 
mere showing that Defendants “knew or should have 
known” that the communication was illegally inter- 
cepted. In our opinion, we stated: 

In reviewing the record, we believe that there 
exists a genuine issue as to a material fact as to 
whether Media Defendants knew or had reason to 
know that the communication was illegally inter- 
cepted. Media Defendants point out that there 
exists a great likelihood that the conversation was 
inadvertently intercepted and recorded, thus out- 
side the scope of both statutory provisions. On the 
other hand, the Plaintiffs note that there exists 
references within the conversation indicating the 
confidential nature of the conversation and the fact 
that it was being conducted via a cellular telephone, 
as well as the relative difficulty in intercepting such 
a communication. 

Id. at 5-6 (citations omitted). 

Remembering that the burden of proof at trial is a 
preponderance of the evidence, we find that Plaintiffs 
have sufficiently demonstrated that Defendants “knew 
or should have known” that the communication was 
intercepted. As to the illegal element for a violation of 

74a 

the statute, both sides have offered sufficient theories 
of how the communication was intercepted. This goes 
beyond the mere characterization of unsupported alle- 
gations with which Defendants attempt to classify 
Plaintiffs’ contentions. Accordingly, we find that there 
is sufficient evidence on which a reasonable jury could 
conclude, by a preponderance of the evidence, that 
Defendants violated the acts. As a result, we believe 
that Plaintiffs have met their burden. 

Defendants have also sought reconsideration of our 
decision denying them summary judgment pursuant to 
their First Amendment argument. In seeking to have 
us reconsider our decision, Defendants cite a Penn- 
sylvania Supreme Court decision that held: “Without 
dispute, it is in the public interest to have a free press. 
Thus, the legislature intended for the public interest 
and a free press to supersede the interest of an in- 
dividual whose private conversation regarding his 
illegal activities had been lawfully intercepted and 
lawfully obtained by a newspaper.” Document 80 at 5 
(citing Bottger v. Loverro, 587 A.2d 712, 720-21 (Pa. 
1991)) (emphasis added). 

We need not discuss this rule because the Penn- 
sylvania Supreme Court’s decision clearly was address- 
ing issues involving the lawful interception and lawful 
acquisition of private conversations pertaining to illegal 
activities. The focus of this litigation is whether the 
disclosure was legal pursuant to the acts. In addition, it 
is disputed that the alleged illegal conduct, “a threat to 
blow-off a porch,” was truly a threat of future illegal 
activity. 

We deny the motions for reconsideration. 

75a 

APPENDIX E 

IN THE UNITED STATES DISTRICT COURT 
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA 

CASE NO. 3:94-CV-01201 
(Judge Kosik) 

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

v. 

FREDERICK W. VOPPER, A/K/A FRED WILLIAMS, 
KEYMARKET OF NEPA, INC., D/B/A WILK RADIO, 

LACKAZERNE, INC., D/B/A WGBI RADIO, 
AND JACK YOCUM, DEFENDANTS 

[Filed: Jan. 7, 1998] 

ORDER 

IT IS HEREBY CERTIFIED that the Memorandum 
and Order dated June 14, 1996 denying the Motion for 
Summary Judgment of the Defendants and the Memo- 
randum and Order of November 8, 1996 which denied 
the Defendants’ Motion to Reconsider the June 17, 1996 
decision involve controlling questions of law as to which 
there is substantial ground for difference of opinion and 
that an immediate appeal from the Order will materi- 
ally advance the ultimate termination of this litigation. 

76a 

The controlling questions of law are: (1) whether the 
imposition of liability on the media Defendants under 
the Federal Electronic Surveillance Statute, 18 U.S.C. 
§§ 2511, 2520 and under the Pennsylvania Wiretapping 
and Electronic Surveillance Control Act, 18 Pa. C.S.A.  
§ 5701, et seq., solely for broadcasting the newsworthy 
tape on the Defendant Fred Williams’ radio news/public 
affairs program, when the tape was illegally intercepted 
and recorded by unknown persons who were not agents 
of Defendants, violates the First Amendment; and 
(2) whether imposition of liability under the aforesaid 
Federal and Pennsylvania Electronic Surveillance Stat- 
utes on Defendant Jack Yocum solely for providing the 
anonymously intercepted and recorded tape to the 
media Defendants violates the First Amendment. I 
make this certification pursuant to 28 U.S.C. § 1292(b). 

BY THE COURT: 

/s/ EDWIN M. KOSIK 

EDWIN M. KOSIK 
United States District 

Judge 

Dated: January 7th, 1998 

77a 

APPENDIX F 

OFFICE OF THE CLERK 
UNITED STATES COURT OF APPEALS 
FOR THE THIRD CIRCUIT 
21400 UNITED STATES COURTHOUSE 
601 MARKET STREET 
PHILADELPHIA, PA 19106-1790 

P. DOUGLAS SISK 

TELEPHONE 

CLERK 215-597-2995 

October 6, 1998 

Via Facsimile and 
Regular Mail 

David M. Barasch, Esquire, 
U.S. Attorney 
Office of United States Attorney 
Federal Building 
228 Walnut Street 
P.O. Box 11754 
Harrisburg, PA 17108 

RE: Bartnicki v. Vopper 

No. 98-7156 
Listed for Disposition: October 5, 1998 

Dear Mr. Barasch: 

The Court wishes to advise you that in the above 
case the defendants/appellants argue that insofar as the 

78a 

federal act dealing with electronic surveillance, 18 CSA 
§§ 2511, 2520, authorizes compensation in a civil action 
by persons who were the victims of an unlawful inter- 
ception, the statute would conflict with the First 
Amendment, and therefore should be interpreted as 
inapplicable to media defendants and their sources who 
were not responsible for the interception. Although the 
case was filed and maintained as a private action, it was 
only after the case was argued this morning that the 
Court realized that this interpretation might trench 
upon its obligation under 28 U.S.C. § 2403(a) to provide 
you with notice with respect to the constitutional issue. 

If you choose to file a brief on the constitutional 
issue, please have four copies filed in the Office of the 
Clerk by Tuesday, October 20, 1998. The Court is 
sending similar notice to the Attorney General of the 
Commonwealth of Pennsylvania as the Pennsylvania 
Wiretapping and Electronic Surveillance Control Act is 
also at issue. After the Court reads the briefs, if any, 
submitted by the respective Attorney Generals’ offices, 
it will decide whether reargument would be appro- 
priate with the representatives of one or both of the 
Attorney Generals participating. 

If you would like copies of the briefs filed by the 
parties, please contact the lawyers whose names are 
listed below: 

79a 

Donald H. Brobst, Esq. 
Rosenn, Jenkins & 

Greenwald 
15 South Franklin Street 
Wilkes-Barre, PA 18711 
(717) 826-5600 

Frank J. Aritz, Esq. 
23 West Walnut Street 
Kingston, PA 18704 
(717) 288-9751 
Raymond P. Wendolowski, Esq. 
Koff, Wendolowski, Ferguson & 

Mangan 
22 East Union Street, 

Suite 115 
Wilkes-Barre, PA 18701 
(717) 822-5600 

Very truly yours, 
P. DOUGLAS SISK, Clerk 

By: /s/ CAROL L. GILLIN 

CAROL L. GILLIN, 
Calendaring Clerk 
Direct Dial: (215) 597-3130 

PDS:clg 

cc: Donald H. Brobst, Esquire 

Frank J. Aritz, Esquire 
Raymond P. Wendolowski, Esquire 

Jeremiah A. Collins, Esquire (fyi) 

80a 

APPENDIX G 

UNITED STATES COURT OF APPEALS 
FOR THE THIRD CIRCUIT 

No. 98-7156 

GLORIA BARTNICKI; ANTHONY F. KANE, JR., 
APPELLEES 

v. 

FREDERICK W. VOPPER, A/K/A FRED WILLIAMS, 
KEYMARKET OF NEPA, INC., D/B/A WILK RADIO, 
LACKAZERNE, INC., D/B/A WGBI RADIO, APPELLANTS 

(Middle District of PA (Scranton) 
D.C. Civil No. 94-1201) (EMK) 

[Nov. 19, 1998] 

Present: SLOVITER, COWEN, Circuit Judges and 
POLLAK, District Judge 

Motion by United States to intervene as of right for 
the purpose of defending the constitutionality of 18 
U.S.C. Section 2511. 

/s/ DEBRA D. WALL 

DEBRA D. WALL 597-0485 
Argued 10/5/98 Case Management Supervisor 

81a 

____________________ORDER __________________ 

The foregoing motion is granted. 

By the Court, 

/s/ DELORES SLOVITER 

Circuit Judge 

DATED: DEC 30 1998 

82a 

APPENDIX H 

UNITED STATES COURT OF APPEALS 
FOR THE THIRD CIRCUIT 

No. 98-7156 

GLORIA BARTNICKI AND ANTHONY F. KANE, JR. 

v. 

FREDERICK W. VOPPER, A/K/A FRED WILLIAMS; 
KEYMARKET OF NEPA, INC., D/B/A WILK RADIO; 
LACKAZERNE, INC., D/B/A WGBI RADIO, JANE DOE; 
JOHN DOE; JACK YOCUM 

FREDERICK W. VOPPER, A/K/A FRED WILLIAMS; 
KEYMARKET OF NEPA, INC., D/B/A WILK RADIO; 
LACKAZERNE, INC., D/B/A WGBI RADIO, JACK YOCUM 

APPELLANTS 

UNITED STATES OF AMERICA, INTERVENOR 

SUR PETITION FOR REHEARING 

Present: BECKER, Chief Judge, SLOVITER, 
MANSMANN, GREENBERG, SCIRICA, NYGAARD, ALITO, 
ROTH, McKEE, RENDELL, and BARRY, Circuit Judges, 
and POLLAK, District Judge1 

1 Hon. Louis H. Pollak, Senior Judge, United States District 
Court for the Eastern District of Pennsylvania, as to panel re- 
hearing only. 

83a 

The petition for rehearing filed by the Appellees and 
Amicus Pennsylvania State Education Association and 
the petition for rehearing filed by Intervenor United 
States in the above-entitled case having been submitted 
to the judges who participated in the decision of this 
court and to all the other available circuit judges of the 
circuit in regular active service, and no judge who 
concurred in the decision having asked for rehearing, 
and a majority of the circuit judges of the circuit in 
regular active service not having voted for rehearing by 
the court en banc, the petitions for rehearing are 
denied. 

Judges Greenberg, Scirica, Nygaard, Alito and 
Rendell would have granted the petitions for rehearing. 

By the Court, 

/s/ DELORES SLOVITER 

Circuit Judge 

Dated: FEB 25 2000 

84a 

APPENDIX I 

1. The First Amendment to the United States Con- 
stitution provides: 

Congress shall make no law respecting an estab- 
lishment of religion, or prohibiting the free exercise 
thereof; or abridging the freedom of speech, or of 
the press; or the right of the people peaceably to 
assemble, and to petition the Government for a 
redress of grievances. 

2. 18 U.S.C. 2510 provides in pertinent part: 

Definitions 

As used in this chapter— 

(1) “wire communication” means any aural transfer 
made in whole or in part through the use of facilities for 
the transmission of communications by the aid of wire, 
cable, or other like connection between the point of 
origin and the point of reception (including the use of 
such connection in a switching station) furnished or 
operated by any person engaged in providing or operat- 
ing such facilities for the transmission of interstate or 
foreign communications or communications affecting 
interstate or foreign commerce and such term includes 
any electronic storage of such communication; 

(2) “oral communication” means any oral communi- 
cation uttered by a person exhibiting an expectation 
that such communication is not subject to interception 
under circumstances justifying such expectation, but 

85a 

such term does not include any electronic communi- 
cation; * * * 

3. 18 U.S.C. 2511 provides in pertinent part: 

Interception and disclosure of wire, oral, or electronic 
communications prohibited 

(1) Except as otherwise specifically provided in this 
chapter [18 U.S.C. 2510-2520] any person who— 

(a) intentionally intercepts, endeavors to inter- 
cept, or procures any other person to intercept or 
endeavor to intercept, any wire, oral, or electronic 
communication; [or] 

* * * 

(c) intentionally discloses, or endeavors to dis- 
close, to any other person the contents of any wire, 
oral, or electronic communication, knowing or 
having reason to know that the information was ob- 
tained through the interception of a wire, oral, or 
electronic communication in violation of this sub- 
section; [or] 

(d) intentionally uses, or endeavors to use, the 
contents of any wire, oral, or electronic communi- 
cation, knowing or having reason to know that the 
information was obtained through the interception 
of a wire, oral, or electronic communication in vio- 
lation of this subsection; * * * 

* * * 

shall be punished as provided in subsection (4) or 
shall be subject to suit as provided in subsection (5). 

86a 

* * * 

(4)(a) Except as provided in paragraph (b) of this 
subsection or in subsection (5), whoever violates sub- 
section (1) of this section shall be fined under this title 
or imprisoned not more than five years, or both. 

(b) If the offense is a first offense under paragraph 
(a) of this subsection and is not for a tortious or illegal 
purpose or for purposes of direct or indirect commercial 
advantage or private commercial gain, and the wire or 
electronic communication with respect to which the 
offense under paragraph (a) is a radio communication 
that is not scrambled, encrypted, or transmitted using 
modulation techniques the essential parameters of 
which have been withheld from the public with the 
intention of preserving the privacy of such communi- 
cation, then— 

(i) if the communication is not the radio portion 
of a cellular telephone communication, a cordless 
telephone communication that is transmitted be- 
tween the cordless telephone handset and the base 
unit, a public land mobile radio service communi- 
cation or a paging service communication, and the 
conduct is not that described in subsection (5), the 
offender shall be fined under this title or imprisoned 
not more than one year, or both; and 

(ii) if the communication is the radio portion of a 
cellular telephone communication, a cordless tele- 
phone communication that is transmitted between 
the cordless telephone handset and the base unit, a 
public land mobile radio service communication or a 
paging service communication, the offender shall be 
fined under this title. 

87a 

(c) Conduct otherwise an offense under this sub- 
section that consists of or relates to the interception 
of a satellite transmission that is not encrypted or 
scrambled and that is transmitted— 

(i) to a broadcasting station for purposes of re- 
transmission to the general public; or 

(ii) as an audio subcarrier intended for redistri- 
bution to facilities open to the public, but not includ- 
ing data transmissions or telephone calls, 

is not an offense under this subsection unless the con- 
duct is for the purposes of direct or indirect commercial 
advantage or private financial gain. 

(5)(a)(i) If the communication is— 

(A) a private satellite video communication that 
is not scrambled or encrypted and the conduct in 
violation of this chapter is the private viewing of 
that communication and is not for a tortious or 
illegal purpose or for purposes of direct or indirect 
commercial advantage or private commercial gain; 
or 

(B) a radio communication that is transmitted on 
frequencies allocated under subpart D of part 74 of 
the rules of the Federal Communications Commis- 
sion that is not scrambled or encrypted and the con- 
duct in violation of this chapter is not for a tortious 
or illegal purpose or for purposes of direct or 
indirect commercial advantage or private com- 
mercial gain, 

88a 

then the person who engages in such conduct shall be 
subject to suit by the Federal Government in a court of 
competent jurisdiction. 

(ii) In an action under this subsection— 

(A) if the violation of this chapter is a first of- 
fense for the person under paragraph (a) of sub- 
section (4) and such person has not been found liable 
in a civil action under section 2520 of this title, the 
Federal Government shall be entitled to appropri- 
ate injunctive relief; and 

(B) if the violation of this chapter is a second or 
subsequent offense under paragraph (a) of sub- 
section (4) or such person has been found liable in 
any prior civil action under section 2520, the person 
shall be subject to a mandatory $500 civil fine. 

(b) The court may use any means within its authority 
to enforce an injunction issued under paragraph (ii)(A), 
and shall impose a civil fine of not less than $500 for 
each violation of such an injunction. 

4. 18 U.S.C. 2515 provides: 

Prohibition of use as evidence of intercepted wire or 
oral communications 

Whenever any wire or oral communication has 
been intercepted, no part of the contents of such 
communication and no evidence derived therefrom may 
be received in evidence in any trial, hearing, or other 
proceeding in or before any court, grand jury, 
department, officer, agency, regulatory body, legis- 
lative committee, or other authority of the United 

89a 

States, a State, or a political subdivision thereof if the 
disclosure of that information would be in violation of 
this chapter. 

5. 18 U.S.C. 2520 provides: 

Recovery of civil damages authorized 

(a) IN GENERAL.—Except as provided in section 
2511(2)(a)(ii), any person whose wire, oral, or electronic 
communication is intercepted, disclosed, or intention- 
ally used in violation of this chapter may in a civil action 
recover from the person or entity which engaged in 
that violation such relief as may be appropriate. 

(b) RELIEF.—In an action under this section, ap- 
propriate relief includes— 

(1) such preliminary and other equitable or 
declaratory relief as may be appropriate; 

(2) damages under subsection (c) and puni- 
tive damages in appropriate cases; and 

(3) a reasonable attorney’s fee and other liti- 
gation costs reasonably incurred. 

(c) COMPUTATION OF DAMAGES.—(1) In an action 
under this section, if the conduct in violation of this 
chapter is the private viewing of a private satellite 
video communication that is not scrambled or en- 
crypted or if the communication is a radio communi- 
cation that is transmitted on frequencies allocated 
under subpart D of part 74 of the rules of the Federal 
Communications Commission that is not scrambled or 
encrypted and the conduct is not for a tortious or illegal 

90a 

purpose or for purposes of direct or indirect commercial 
advantage or private commercial gain, then the court 
shall assess damages as follows: 

(A) If the person who engaged in that conduct 
has not previously been enjoined under section 
2511(5) and has not been found liable in a prior civil 
action under this section, the court shall assess the 
greater of the sum of actual damages suffered by 
the plaintiff, or statutory damages of not less than 
$50 and not more than $500. 

(B) If, on one prior occasion, the person who 
engaged in that conduct has been enjoined under 
section 2511(5) or has been found liable in a civil 
action under this section, the court shall assess the 
greater of the sum of actual damages suffered by 
the plaintiff, or statutory damages of not less than 
$100 and not more than $1000. 

(2) In any other action under this section, the 
court may assess as damages whichever is the 
greater of— 

(A) the sum of the actual damages suffered by 
the plaintiff and any profits made by the violator as 
a result of the violation; or 

(B) statutory damages of whichever is the 
greater of $100 a day for each day of violation or 
$10,000. 

(d) DEFENSE.—A good faith reliance on— 

(1) a court warrant or order, a grand jury 
subpoena, a legislative authorization, or a statu- 
tory authorization; 

91a 

(2) a request of an investigative or law en- 
forcement officer under section 2518(7) of this 
title; or 

(3) a good faith determination that section 
2511(3) of this title permitted the conduct com- 
plained of; 

is a complete defense against any civil or criminal action 
brought under this chapter or any other law. 

(e) LIMITATION.—A civil action under this section 
may not be commenced later than two years after the 
date upon which the claimant first has a reasonable 
opportunity to discover the violation.