Decision Shields Media Disclosures of Secret Recordings: Bartnicki vs. Vopper

Senator Mitch McConnell is now the second high profile politician in recent months to have secretly recorded remarks come back to haunt him. Mitt Romney’s controversial “47 percent” speech was made at a private fundraiser, while Senator Mitch McConnell’s statements about potential challenger Ashley Judd were made at his campaign headquarters.

In both cases, the media disseminated the secretly recorded statements. But was it legal?

According to most legal experts, the answer is yes. Under the precedent established in Bartnicki vs. Vopper, the publications are protected by the First Amendment.

The case involved an illegally intercepted cell phone conversation between the president of the Pennsylvania State Education Association and the chief union negotiator that took place during collective-bargaining negotiations. After the two sides accepted a nonbinding arbitration proposal that was generally favorable to the teachers, a radio commentator, who had been critical of the union in the past, played a tape of the intercepted conversation on his public affairs talk show. Another station also broadcast the tape, and local newspapers published its contents.

The two men who were recorded subsequently filed suit under federal and Pennsylvania wiretapping statutes. The question before the Supreme Court was whether the First Amendment protects speech that discloses the contents of an illegally intercepted communication.

By a vote of 6 to 3, the Supreme Court ruled in favor of First Amendment protection. “In this case, privacy concerns give way when balanced against the interest in publishing matters of public importance,” Justice Stevens wrote on behalf of the majority.

The Court specifically noted three factors that differentiated the case from those typically brought under the Federal Wiretap Act. First, the media played no part in the illegal interception. Rather, they found out about the interception only after it occurred, and in fact never learned the identity of the person or persons who made the interception. Second, their access to the information on the tapes was obtained lawfully, even though someone else intercepted the information itself unlawfully. Third, the subject matter of the conversation was a matter of public concern.

As further explained by the Court, “[A] stranger’s illegal conduct does not suffice to remove the First Amendment shield from speech about a matter of public concern.”