Peavy v. WFAA-TV, Inc.

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________

No. 99-10272
_____________________

CARVER DAN PEAVY; SALLY PEAVY,

Plaintiffs-Appellants/Cross-Appellees,

versus

WFAA-TV, INC.; ROBERT RIGGS,

Defendants-Appellees/Cross-Appellants.
_________________________________________________________________

Appeals from the United States District Court
for the Northern District of Texas

_________________________________________________________________
July 31, 2000
Before POLITZ, JOLLY, and BARKSDALE, Circuit Judges.

RHESA HAWKINS BARKSDALE, Circuit Judge:

Primarily at issue is whether the First Amendment shields

WFAA-TV, Inc., and its reporter, Robert Riggs, from liability for

their “use” and “disclosure”, in violation of the Federal and Texas

Wiretap Acts, of the contents of the Peavys’ cordless telephone

conversations, illegally intercepted and recorded by the Harmans,

with them providing the recordings to Riggs and with Riggs and WFAA

having some participation concerning the interceptions, at least as

to their extent. Numerous other federal and state law issues are

presented, including whether defendants “procured” or “obtained”

the Harmans to make the interceptions, in violation of the Federal

and Texas Acts, respectively, and whether the Federal Act even
permits a civil action for damages for such “procurement”. The

district court granted summary judgment for WFAA and Riggs,

holding, inter alia: the Harmans were neither so “procured” nor

“obtained”; and even though defendants engaged in proscribed “use”

and “disclosure”, the First Amendment trumps the two Acts. We

AFFIRM in part; REVERSE in part; VACATE in part; and REMAND.

I.

The facts are largely undisputed. The following is drawn, in

part, from the magistrate judge’s recommendation, adopted by the

district court without a separate opinion. Peavy v. Harman, 37 F.

Supp. 2d 495, 502-04 (N.D. Tex. 1999).

Carver Dan Peavy (Peavy) was elected a trustee for the Dallas

Independent School District (DISD) in 1986, so serving until 1995.

By the early 1990s, he controlled purchases of insurance for DISD

employees. He was a friend and business associate of Eugene

Oliver, an insurance agent who had been convicted as an accomplice

to murder. The Peavys had been long involved in various, ongoing

disputes with their neighbors, Charles and Wilma Harman. Id. at

502 n.2.

In early December 1994, Charles Harman (Harman) acquired a

police scanner, in order to monitor police activity in his

neighborhood. The first time he turned it on, he overheard a

telephone conversation between Peavy and another neighbor, in which

they discussed filing a class action against the Harmans. Id. at

2
502. Thereafter, Harman locked the scanner onto the frequency for

the Peavys’ cordless telephone, and continued listening to their

conversations. Harman overheard conversations which he interpreted

as threats to his safety, and some involved what he perceived to be

public corruption on the part of Peavy involving insurance at DISD.

Id. Shortly thereafter, Harman began recording the intercepted

conversations. Id.

The Harmans claimed to have consulted with various law

enforcement officials regarding the legality of intercepting and

recording cordless telephone calls, and to have been told it was

legal. Id. (However, in a related proceeding, subsequent to the

summary judgment in this case, the magistrate judge found that no

one told the Harmans such interception was legal. See Goodspeed v.

Harman, 39 F. Supp. 2d 787, 793-94 (N.D. Tex. 1999).)

Frustrated at the lack of police response to his reports of

Peavy’s threats and public corruption, Harman contacted WFAA on 8

December 1994, and spoke with one of its producers, P. J. Ward.

Id. at 503. Harman told Ward he had information about possible

corruption by an elected official, who he eventually identified as

Peavy. Id. Ward relayed the tip to Riggs, a WFAA investigative

reporter. Id.

Riggs telephoned Harman that afternoon. Id. Harman told

Riggs he: had proof Peavy was threatening to harm him and was

involved in an insurance kickback scheme; was concerned for his

3
family’s safety; and wanted to talk to Riggs in person. Id. Riggs

had never heard of Peavy and was not working on a story about DISD

insurance.

The next day, Riggs went to the Harmans’ home. Id. They told

him about their history with Peavy; hearing, with a police scanner,

his threats and discussions of insurance kickbacks; and taping his

conversations. They told Riggs about the contents of overheard,

but not recorded, conversations; played a tape of recorded

conversations; and showed him the scanner. Riggs knew the parties

to those conversations were not aware of, and did not consent to,

the interception and recording.

Riggs claimed: he asked Harman, at their initial meeting,

whether it was legal to record the conversations; and Harman

assured him his actions had been approved by the Dallas County

District Attorney and the Dallas Police Department. Id. On the

other hand, the Harmans claim Riggs told them he had consulted with

WFAA’s attorney about the legality of the intercepts prior to their

meeting. Riggs denied then consulting counsel and stated he did

not do so until a few days later.

At their initial meeting, Harman asked Riggs whether he wanted

a copy of the tape, as well as others he (Harman) might make in the

future. Id. Riggs replied he did. Id. He also instructed the

Harmans not to turn the tape recorder on and off while recording

4
intercepted conversations, and not to edit them, so that the tapes’

authenticity could not be challenged. Id.

Riggs took the tape of the intercepted conversations to WFAA;

met with Ward and WFAA News Director John Miller; told them about

his meeting with the Harmans; and played portions of the tape for

them. Id. They agreed Peavy’s activities should be investigated.

Id. After that meeting, Riggs asked another WFAA employee to

conduct research regarding the contents of the tape, and instructed

Ward to conduct other research at DISD.

WFAA asked its outside legal counsel, Paul Watler, whether it

was lawful for WFAA to receive tapes of the intercepted and

recorded cordless telephone conversations. At a meeting with Riggs

and Miller on 12 December 1994, Watler advised he would have to

double-check, but thought it legal to intercept and record cordless

telephone conversations. At a meeting at WFAA on 4 January 1995,

Watler told Riggs: it was legal to listen to, and record, cordless

telephone conversations; and WFAA could legally accept and

broadcast the tapes.

In February 1995, Ward and Watler decided to have portions of

the tapes transcribed. Ward selected for transcription those

portions she believed would illustrate to Riggs, Miller, and Watler

the evidence of public corruption and racial discrimination. At

Watler’s suggestion, Ward had them transcribed by a court reporter

5
in Austin, Texas, and took measures to ensure the confidentiality

of the tapes and transcripts.

After the transcript was prepared, Ward made copies for

Miller, Riggs, and Watler. Ward and Riggs reviewed, edited, and

corrected it. Watler reviewed it to familiarize himself with the

contents of the tapes so that he could advise WFAA on legal

questions that might arise. And, Riggs gave a copy of the

transcript to the Harmans to review for accuracy.

In late February, Riggs began preparing a memorandum in which

he formulated story outlines based on the contents of the tapes and

his investigation of those contents.

By the end of that month, the Harmans had provided to WFAA 17

more tapes of the Peavys’ conversations. Id. Ward listened to,

and took notes about, each tape. At Miller’s request, Ward

prepared a memorandum regarding the persons, and another regarding

the topics, mentioned on the tapes.

The 18 tapes WFAA received from Harman contained 188 telephone

conversations between the Peavys and others. Id. Because the

contents of those conversations are not particularly relevant to

the issues at hand, it is not necessary to describe them in detail.

Generally, they concern DISD insurance and Peavy’s conduct as a

DISD trustee, a plan to sell cancer insurance to an entity other

than DISD, and Peavy’s relationship with Oliver. They also include

offensive language, as well as conversations about intensely

6
personal matters which the participants obviously would never have

discussed had they known of the interceptions.

By late February 1995, Riggs had been informed by law

enforcement sources for another story on which he was working that

the Federal Wiretap Act had been amended to cover interception of

cordless telephone calls. Id. Accordingly, he asked Watler to re-

check his previous advice regarding the legality of using the

intercepted conversations. Id. At WFAA’s request, Watler

conducted further research and discovered that the law had been

amended in October 1994 (about six weeks before the first Riggs-

Harman meeting), to make it unlawful to intercept the radio portion

of a cordless telephone call. Id. Pub. L. No. 103-414, §

202(a)(1), 108 Stat. 4290, 4291 (codified as amended at 18 U.S.C.

§ 2510(1) (deleting from definition of “wire communication”

provision which excluded radio portion of cordless telephone

communication that is transmitted between handset and base unit)).

Watler immediately informed Miller of the amendment and

advised WFAA not to accept any more tapes. On 1 March, Watler met

with Miller and Riggs and advised them his previous advice had been

incorrect. He opined that, in any event, the First Amendment took

precedence over the wiretapping laws and that WFAA could still use,

and broadcast (disclose), the tapes, because it had lawfully

obtained them. Nevertheless, he advised WFAA that the more

conservative approach was not to accept additional tapes, not to

7
broadcast any tapes, not to disclose the contents of the tapes to

third parties, and not to confront individuals about conversations

on the tapes, unless the same information was available from other

sources.

In addition, Watler advised WFAA to return the original tapes

to Harman and tell him WFAA would not accept any more. He also

advised WFAA to provide him with all copies of the tapes,

transcripts, and other materials related to the tapes’ contents.

Ward forwarded the materials (except for her copy of the

transcript, which she inadvertently did not include) to Watler.

The tapes WFAA had received from Harman were returned to him by

either Riggs or Ward on or about 1 March. 37 F. Supp. 2d at 504.

Even after learning recording Peavy’s conversations was

illegal, Harman continued to intercept them until his scanner was

seized by the FBI in October 1995. Id. Harman told Riggs about

the contents of at least one of these interceptions. He also

recorded at least one other, for which he pleaded guilty to

violating the Federal Wiretap Act and paid a $5,000 fine. Id.

At the earlier described 1 March meeting with Miller and

Riggs, Watler also advised WFAA could continue to research Peavy

and DISD insurance using other means. Riggs and Ward continued

their extensive investigation of Peavy and Oliver, such as

requesting records from DISD and other governmental agencies;

interviewing numerous individuals; investigating DISD’s insurance

8
providers; conducting background research and checks on Peavy and

others; and reviewing past DISD campaign contributions, board and

committee minutes, and insurance proposals.

Between 31 July and 2 August 1995, WFAA broadcast three

reports on Peavy’s alleged wrongdoing in connection with DISD

insurance. Id. Although intercepted conversations were not played

in the broadcasts, the district court held that, in violation of

the Federal and Texas Wiretap Acts, WFAA and Riggs “disclosed”

portions of the tapes’ contents during them. Id. at 514. After 2

August, WFAA periodically broadcast follow-up reports on Peavy,

Oliver, and DISD insurance. Watler reviewed the broadcasts before

they aired.

After Riggs learned of the illegality of the interceptions, he

disclosed to federal law enforcement officials and a Dallas Police

detective (apparently in August 1995) the tapes’ contents and other

information from his investigation. Riggs then advised the Harmans

about those discussions.

In April 1996, Peavy and Oliver were indicted for bribery and

other offenses related to DISD insurance. Id. at 504. They were

acquitted of all charges. Id.

In October 1996, the Peavys filed this action against WFAA and

Riggs, claiming violations of Title III of the Omnibus Crime

Control and Safe Streets Act of 1968, codified at 18 U.S.C. §§

2510-2521, as amended by the Electronic Communications Privacy Act

9
of 1986 (Federal Wiretap Act); as well as making state law claims

under TEX. CIV. PRAC. & REM. CODE § 123.001, et seq. (Texas Wiretap

Act) and for, inter alia, civil conspiracy. Separate actions

filed by the Olivers against WFAA, Riggs, and Harman, and by the

Peavys against the Harmans, were consolidated for pretrial

purposes. 37 F. Supp. 2d at 504 n.6.

Cross-motions for summary judgment were referred to the

magistrate judge. Id. at 502. His October 1998 recommendation

was, inter alia: WFAA and Riggs violated the Federal and Texas

Wiretap Acts by “using” and “disclosing” contents of illegal

interceptions, id. at 513-15, but they should be awarded summary

judgment because liability for their proscribed conduct would

violate the First Amendment. Id. at 518. Summary judgment was

also recommended for WFAA and Riggs on the Peavys’ other state law

claims. Id. at 521-25. The district court adopted the

recommendation. Id. at 501.

II.

The Peavys claim the district court erred by: holding

defendants did not “procure” the interceptions by the Harmans, in

violation of the Federal Act, or “obtain” them, in violation of the

Texas Act; granting summary judgment against their civil conspiracy

claims; applying strict scrutiny and, as a result, holding that the

First Amendment shields WFAA and Riggs from liability under the

“use” and “disclosure” provisions of the two Wiretap Acts; and

10
denying their motion to suppress the contents of the illegal

interceptions.

By cross-appeal, WFAA and Riggs (defendants) contest the

holding they engaged in proscribed “use” and “disclosure”.

Alternatively, they claim the Wiretap Acts are facially

unconstitutional for vagueness and overbreadth.

The United States intervened on appeal, pursuant to 28 U.S.C.

§ 2403(a) and FED. R. APP. P. 44, to defend the constitutionality of

the Federal Wiretap Act. And, an amicus brief was filed by

numerous media entities, such as the National Broadcasting Company,

Inc.

We review the summary judgment de novo, using “the same

criteria as the district court, viewing all facts, and the

inferences to be drawn from them, in the light most favorable to

the non-movants”. Forsyth v. Barr, 19 F.3d 1527, 1533 (5th Cir.),

cert. denied, 513 U.S. 871 (1994). The judgment is proper if, in

the light of the summary judgment record, “‘there is no genuine

issue as to any material fact and ... the mov[ant] is entitled to

a judgment as a matter of law.’” Id. (quoting FED. R. CIV. P.

56(c)).

“[T]he substantive law will identify which facts are

material”. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248

(1986). “Only disputes over facts that might affect the outcome of

the suit under the governing law will properly preclude ... summary

11
judgment.” Id. “[A] dispute about a material fact is ‘genuine’

... if the evidence is such that a reasonable jury could return a

verdict for the nonmov[ant]”. Id.

A.

The Federal Wiretap Act is violated if a person, inter alia,

“procures any other person to intercept ... any wire, oral, or

electronic communication”. 18 U.S.C. § 2511(1)(a) (emphasis

added). Under the Texas Wiretap Act, “[a] party to a communication

may sue a person who ... [, inter alia,] obtains another to

intercept ... the communication”. TEX. CIV. PRAC. & REM. CODE §

123.002(a)(1) (emphasis added).

The district court held defendants neither “procured”, in

violation of the Federal Act, nor “obtained”, in violation of the

Texas Act, the Harmans to intercept the Peavys’ communications,

because the Harmans made an independent decision in which

defendants did not actively participate. Peavy, 37 F. Supp. 2d at

512-13.

1.

Defendants urge us to affirm the summary judgment on the

ground, not addressed by the district court, that the Peavys did

not timely plead a “procures” or “obtains” claim. They maintain

the former was not raised until in opposition to summary judgment;

the latter, until in objections to the recommendation.

12
 “A pleading which sets forth a claim for relief ... shall

contain ... a short and plain statement of the claim showing that

the pleader is entitled to relief”. FED. R. CIV. P. 8(a). “The form

of the complaint is not significant if it alleges facts upon which

relief can be granted, even if it fails to categorize correctly the

legal theory giving rise to the claim.” Dussouy v. Gulf Coast Inv.

Corp., 660 F.2d 594, 604 (5th Cir. 1981).

The amended complaint stated, inter alia, that defendants

conspired with the Harmans “to intercept” the Peavys’

communications, “knowing or having reason to know” the contents

were obtained through interception in violation of, inter alia, “18

U.S.C. § 2511 and/or Chap. 123, TEX. CIV. PRAC. & REM. CODE”.

“Procuring” and “obtaining” claims are stated.

2.

Alternatively, for the federal “procures” claim, defendants

urge affirming summary judgment on the ground there is no private

civil action for violation of that portion of § 2511(1)(a).

a.

The Peavys contend, incorrectly, that defendants “waived” this

issue by not presenting it in district court. Although the

magistrate judge and district judge did not address this no-civil-

action issue, defendants did raise it in response to the Peavys’

objections to the recommendation.

13
 Even assuming the issue was not properly raised, we may

consider a “purely legal claim” advanced for the first time on

appeal, to support affirmance of a summary judgment, when “there

are no countervailing reasons warranting remand to the district

court”. See F.D.I.C. v. Lee, 130 F.3d 1139, 1141-43 (5th Cir.

1997) (affirming summary judgment on statutory ground raised by

appellee for first time on appeal).

Whether the Federal Act authorizes a private civil action for

procurement is a legal issue of statutory interpretation, which

requires no presentation of evidence. Because the issue has been

fully briefed, and the Peavys cannot claim prejudice, there are no

“countervailing reasons” to preclude our considering it.

b.

Defendants did not cite, nor have we found, any cases

addressing the availability, under the Federal Act, of a civil

procurement action. Prior to its amendment in 1986, the provision

authorizing civil damages stated, in pertinent part:

Any person whose wire or oral
communication is intercepted, disclosed, or
used in violation of this chapter shall (1)
have a civil cause of action against any
person who intercepts, discloses, or uses, or
procures any other person to intercept,
disclose, or use such communications, and (2)
be entitled to recover from any such person
[damages, attorney’s fees, and costs].

18 U.S.C. § 2520 (1970) (emphasis added).

14
 But, the “or procures any other person” language was deleted

when the section was amended in 1986. See Oceanic Cablevision,

Inc. v. M.D. Elecs., 771 F. Supp. 1019, 1027 (D. Neb. 1991)

(“[s]ection 103 of the Electronic Communications Privacy Act of

1986[] amended § 2520 by eliminating the ‘or procures another

person’ language of the statute and incorporating violations

involving the interception, disclosure, or intentional use of

electronic communications” (citing S. Rep. No. 541, 99th Cong., 2d

Sess. 26-27, reprinted in 1986 U.S.C.C.A.N. 3555, 3580-81)).

As amended, § 2520 provides, in pertinent part, that

any person whose wire, oral, or electronic
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 that
violation such relief as may be appropriate.

18 U.S.C. § 2520(a) (Supp. 2000) (emphasis added). Nevertheless,

§ 2511(1)(a) continues to proscribe procuring another to intercept

covered communications.

In short, the class of persons who may bring a civil action

for violation of the Act is the same in both the original and

amended provisions: those with covered communications

“intercepted, disclosed, or used” in violation of the Act. But,

those who may be held civilly liable are not the same. The amended

provision does not have the “procures any other person” language,

extending civil liability to “the person or entity which engaged in

that violation”, 18 U.S.C. § 2520(a) (Supp. 2000) (emphasis added).

15
And, the referenced “violation” is “intercepted, disclosed, or

intentionally used”; there is no mention of “procures”.

“When Congress acts to amend a statute, we presume it intends

its amendment to have real and substantial effect.” Stone v.

I.N.S., 514 U.S. 386, 397 (1995). The Peavys counter that the

amendment did not take away an action for procurement, because the

§ 2520(a) class of potential defendants is broad enough to cover

persons who violate the Federal Act by procuring another to

intercept; and the legislative history of the amendment does not

indicate any intent to eliminate a civil claim for procurement.

We disagree. Section 2520(a)’s plain, unambiguous language

authorizes a civil action by one whose covered “communication is

intercepted, disclosed, or intentionally used in violation of this

chapter”, from “the person or entity which engaged in that

violation”. 18 U.S.C. § 2520(a) (Supp. 2000) (emphasis added).

“Statutory construction must begin with the language employed by

Congress and the assumption that the ordinary meaning of that

language accurately expresses the legislative purpose.” Park ’N

Fly, Inc. v. Dollar Park & Fly, Inc., 469 U.S. 189, 194 (1985).

Restated, we must assume Congress meant what it said in the

amendment. Accordingly, “that violation” refers only to illegal

interception, disclosure, or use, and not to procuring interception

by another.

16
 This interpretation of § 2520(a) does not render superfluous

the portion of § 2511(1)(a) prohibiting “procuring”; as noted, that

proscription can be enforced through, inter alia, a criminal

proceeding. See BFP v. Resolution Trust Corp., 511 U.S. 531, 537

(1994) (“it is generally presumed that Congress acts intentionally

and purposely when it includes particular language in one section

of a statute but omits it in another” (brackets, internal quotation

marks, and citation omitted)).

Because the plain language of the statute is unambiguous,

resort to legislative history for its interpretation is not

necessary. See Andrews & Kurth L.L.P. v. Family Snacks, Inc.

(Matter of Pro-Snax Distribs., Inc.), 157 F.3d 414, 425 (5th Cir.

1998). Moreover, even if the legislative history is silent

regarding Congress’ intent, in the 1986 amendment, to take away a

civil action for procurement, that silence does not make the

amended statute ambiguous. If Congress intended to retain the

action, it failed to express that intent. See id. (where language

in statute was deleted in amendment, absence of legislative history

did not render statute ambiguous; even if Congress intended to

leave language intact, such intent was not reflected in

unambiguous, amended statute).

Obviously, if Congress did not intend to delete a civil

procurement action, it can amend § 2520(a). But, it goes without

17
saying that we cannot do so. The federal procurement claim was

properly dismissed.

c.

But, even though there is no federal civil liability for

“procurement”, such activity, as noted, is nevertheless unlawful,

pursuant to § 2511(1)(a). Accordingly, it may well be that

procurement vel non remains an issue for trial. For example, for

damages purposes, procurement vel non may bear on the extent of

defendants’ knowledge of the Harmans’ illegal interceptions.

The following section concerning the Peavys’ “obtains” claim

under the Texas Act is intertwined with procurement vel non under

the Federal Act. For the reasons stated in that section, we hold,

contrary to the district court, that there is a material fact issue

on procurement.

3.

For the Texas Act, the Peavys contend they are entitled to

judgment as a matter of law, or, in the alternative, there is at

least a material fact issue, on whether defendants “obtained” the

Harmans’ interception of the Peavys’ conversations, by encouraging

them to intercept calls, instructing them on recording techniques,

requesting and picking up tapes of recorded conversations from

them, and promising to expose Peavy’s wrongdoing. Defendants

respond that their association with the Harmans and receipt of the

18
tapes does not constitute “obtaining” the Harmans to make the

interceptions.

a.

The Texas Act does not define “obtains”; similarly, the

parties did not cite, nor did we find, any Texas cases interpreting

that term for purposes of the Act. The parties’ briefs focus

primarily on federal “procurement”. According to the Peavys,

“obtain” has essentially the same meaning as “procure”. Defendants

apparently agree: they maintain the evidence and authorities cited

in their discussion of the federal procurement claim also

demonstrate they did not “obtain” the Harmans’ interceptions in

violation of the Texas Act.

The Peavys cite the BLACK’S LAW DICTIONARY definition of “obtain”:

“to get hold of by effort; to get possession of; to procure; to

acquire, in any way”. BLACK’S LAW DICTIONARY 1228 (rev. 4th ed., West

1968) (emphasis added). The Seventh Edition of BLACK’S contains no

definition of the term. Webster defines it as “to gain or attain

possession or disposal of usu[ally] by some planned action or

method” or “to bring about or call into being”. WEBSTER’S THIRD NEW

INTERNATIONAL DICTIONARY (UNABRIDGED) 1559 (1986). See also THE NEW SHORTER

OXFORD ENGLISH DICTIONARY 1970 (1993) (“Come into the possession or

enjoyment of; secure or gain as the result of request or effort;

acquire, get.”).

19
 The Texas Court of Appeals has stated: “In the absence of a

statutory definition, statutory language is measured by common

understanding and practices”. Reeves v. State, 969 S.W.2d 471, 487

(Tex. App. — Waco 1998), cert. denied, ___ U.S. ___, 119 S. Ct.

1462 (1999); see also Carroll v. State, 911 S.W.2d 210, 220 (Tex.

App. — Austin 1995) (“[i]n the absence of special definitions,

statutory language can be measured by common understanding and

practices or construed in the sense generally understood”).

Carroll, 911 S.W.2d at 220, relied on dictionary definitions

of “obtain” when construing the Texas statutory exclusionary rule,

TEX. CODE CRIM. P. ANN. art. 38.23(a) (prohibiting admission at trial

against accused in criminal case of evidence “obtained” in

violation of federal or Texas law (emphasis added)). See Reeves,

969 S.W.2d at 487 (construing art. 38.23 and stating that “‘obtain’

means to gain or attain by planned action or effort” (citing State

v. Daugherty, 931 S.W.2d 268, 270-71 (Tex. Crim. App. 1996)));

Ferguson v. State, 699 S.W.2d 381, 386 (Tex. App. — Fort Worth

1985) (citing dictionary definitions in concluding that, although

robbery statute uses term “obtain”, trial court’s use of terms

“appropriate” and “acquire”, rather than “obtain”, in jury charge

was not error).

The Peavys contend “obtain” does not require any “active

participation” in the interception, but only knowing participation

in the overall scheme by which the communications were intercepted.

20
They maintain it is enough to knowingly condone another’s

interceptions and advise him concerning them; or to implicitly

encourage the interception by using the information for the

interceptor’s benefit.

In this regard, they urge applying the definition of aiding

and abetting applied by the Supreme Court in Nye & Nissen v. United

States, 336 U.S. 613 (1949), cited in the legislative history of

the Federal Wiretap Act. See S. Rep. No. 90-1097, 90th Cong., 2d

Sess., reprinted in 1968 U.S.C.C.A.N. 2112, 2181. In Nye, “aid and

abet” was defined to mean “that a defendant in some sort associate

himself with the venture, that he participate in it as in something

that he wishes to bring about, that he seek by his action to make

it succeed”. Id. at 619 (internal quotation marks and citation

omitted).

Defendants respond that the Federal Act’s legislative history

does not discuss or cite any particular language in Nye with

approval, and does not equate “procure” with “aid and abet”. They

urge that “procure” (and, presumably, “obtain” for Texas Act

purposes) means “actively bringing about, causing or instigating

something to be done”. Alternatively, they claim that, under the

definition relied on by the Peavys, their conduct does not

constitute “aiding and abetting” the interceptions.

Defendants assert there is no evidence they caused,

instigated, or enlisted Harman to make the interceptions, or

21
participated in, or encouraged, them. They note his interceptions

started before Riggs contacted them, and continued after they

stopped accepting tapes from him.

The summary judgment record contains the following evidence

pertinent to this “obtains”, as well as the “procures”, claim. The

Harmans acquired the scanner and, prior to contacting WFAA or

meeting with Riggs, began intercepting and recording the Peavys’

telephone conversations. Defendants never provided Harman with

equipment to assist in that.

The Harmans called WFAA and met with Riggs, because they were

frustrated with the lack of action by law enforcement authorities

to whom they had reported Peavy’s conduct, and wanted it

investigated and exposed.

When the Harmans asked Riggs whether he wanted a copy of the

tape listened to at their initial meeting, and any future tapes

they might make, he replied that he did. Riggs instructed Harman

not to turn the recorder on and off while listening to the

intercepted conversations, and not to edit the tapes, to prevent

authenticity challenges.

As the Harmans made additional tapes, they called Riggs and

told him. Occasionally, he telephoned the Harmans to ask if

additional tapes were available. Riggs testified in his

deposition: he was very interested in obtaining any additional

22
information to further his investigation of Peavy; and he asked

Harman to keep him aware of whatever else he was hearing.

Either Riggs or Ward picked up the tapes from the Harmans.

Harman testified in his deposition: when Riggs came to pick up

tapes, he would listen to them at the Harmans’ home; he told Harman

he would “look into” the contents of the tapes; and later told

Harman he was “finding more stuff” based on such contents.

According to Mrs. Harman, Riggs and Harman, after their

initial meeting, had “a lot” of telephone conversations. After the

Harmans learned recording the conversations was illegal and WFAA

informed them it would not accept additional tapes, they continued

intercepting the Peavys’ conversations, and continued telephone

contact with Riggs. Riggs also met with the Harmans in their home

after they learned of the illegality.

On 1 March 1995, after Watler told Riggs, Miller, and Ward

they could not accept additional tapes, Riggs called Harman and

recorded their conversation, without Harman’s knowledge. In that

conversation, Riggs discussed the progress defendants had made on

the story and assured Harman repeatedly that he and WFAA were going

to continue working on the story.

Viewing this evidence in the light most favorable to the

Peavys, we conclude that, although they are not entitled to summary

judgment on this point, neither are defendants. Construing

“obtains” in the sense generally understood (gain or attain by

23
planned action or effort), a reasonable jury could find that, with

the exception of the interceptions made by the Harmans prior to

their contacting WFAA and Riggs, and possibly the interceptions

made after Riggs informed Harman that WFAA would not accept

additional tapes, defendants’ interim conduct constituted

“obtaining” the Harmans to intercept the Peavys’ conversations, in

violation of the Texas Act (as well as “procuring” them in

violation of the Federal Act).

At the very least, to the extent Riggs’ instructions regarding

recording entire conversations caused the Harmans to intercept and

record portions of conversations they otherwise would not have

intercepted and recorded, a reasonable jury could conclude Riggs

“obtained” (or “procured”) the Harmans’ interception of those

discrete portions.

A reasonable jury also could conclude that defendants’

willingness to pursue the investigation and exposure of Peavy’s

alleged wrongdoing — the purpose for which the Harmans contacted

WFAA — encouraged the Harmans to continue intercepting, and

recording, the Peavys’ conversations, even if it was not the sole

motivation for their doing so.

b.

Another of defendants’ assertions about federal “procurement”

appears to bear on the Peavys’ Texas “obtains” claim. In a

footnote to their contention there is no “procurement” action,

24
defendants conclusorily assert: “if procurement is construed as

broadly as [the Peavys] would have it, the ... provision also would

be unconstitutional as applied ... and on its face”. They cross-

reference their contentions that the First Amendment shields them

from liability for proscribed “use” and “disclosure”.

Obviously, assuming defendants intend this to apply to the

“obtains” claim, it is not adequately briefed. In any event, it is

without merit. Defendants have essentially conceded the First

Amendment would not bar an action against them for interception.

There is no basis for distinguishing, for First Amendment purposes,

between a person intercepting, on the one hand, and obtaining it

through someone else, on the other.

B.

For their state law civil conspiracy claim, and relying on the

same evidence supporting their “obtains” claim, the Peavys contend

they are entitled to summary judgment, or, in the alternative,

there is at least a material fact issue whether defendants

conspired with the Harmans to intercept the conversations. Summary

judgment was granted defendants on the ground there was no evidence

of conspiracy — that defendants believed in good faith their

activities were lawful. Peavy, 37 F. Supp. 2d at 524-25.

1.

The Peavys contend ignorance or mistake of law is not a

defense to civil conspiracy, so it is irrelevant whether defendants

25
knew their actions violated the Texas Act. Defendants counter

that, because civil conspiracy requires proof of specific intent,

the Peavys must prove: (1) Riggs knew his conduct was unlawful

(they claim undisputed evidence establishes the contrary); and (2)

Riggs entered into an agreement specifically intending to injure

the Peavys (they claim there is no evidence of such an agreement).

Civil conspiracy under Texas law is “a combination by two or

more persons to accomplish an unlawful purpose or to accomplish a

lawful purpose by unlawful means”. Schlumberger Well Surveying

Corp. v. Nortex Oil & Gas Corp., 435 S.W.2d 854, 856 (Tex. 1968)

(internal quotation marks and citations omitted). “The essential

elements are: (1) two or more persons; (2) an object to be

accomplished; (3) a meeting of minds on the object or course of

action; (4) one or more unlawful, overt acts; and (5) damages as

the proximate result”. Massey v. Armco Steel Co., 652 S.W.2d 932,

934 (Tex. 1983). Not at issue are the first, fourth, and fifth

elements.

In Texas, “civil conspiracy requires specific intent”.

Triplex Communications, Inc. v. Riley, 900 S.W.2d 716, 719 (Tex.

1995). Proof that a defendant “intend[ed] to engage in the conduct

that resulted in the injury” is insufficient. Id. Instead, “[f]or

a civil conspiracy to arise, the parties must be aware of the harm

or wrongful conduct at the inception of the combination or

agreement”. Id. “One without knowledge of the object and purpose

26
of a conspiracy cannot be a co-conspirator; he cannot agree, either

expressly or tacitly, to the commission of a wrong which he knows

not of”. Schlumberger, 435 S.W.2d at 856. “And, of course, one

without knowledge of a conspiratorial plan or scheme to injure

another by the commission of a particular wrong cannot share the

intent to injure such other”. Id. at 857.

Based on the evidence discussed supra, a reasonable jury could

find that defendants and the Harmans agreed to accomplish a lawful

purpose (investigation and exposure of Peavy’s alleged wrongdoing),

but undertook to do so, at least in part, by unlawful means

(proscribed interception, use, and disclosure of Peavys’

conversations). It is undisputed that, from the inception of their

association, Riggs knew the Harmans had intercepted and recorded

the Peavys’ conversations without the knowledge of any of the

parties to them.

Thus, defendants were aware of the Harmans’ wrongful conduct.

None of the cases cited by defendants supports their contention

that Texas law requires additional proof they knew about the

provisions that made such conduct illegal. Moreover, Glenn H.

McCarthy, Inc. v. Knox, 186 S.W.2d 832, 838 (Tex. App. – Galveston

1945), rejects such a contention:

Though defendants did not know of the
illegality of the agreement, the purpose of
the conspiracy is to be determined ordinarily
by the quality of the acts to be performed
under it.... It is therefore not a necessary

27
 element that a party have knowledge of the
illegality of the end which would be
accomplished thereby.

Id. at 838.

Once again, while the Peavys are not entitled to summary

judgment on this claim, neither are defendants. A reasonable jury

could find the requisite “meeting of the minds” based on the

following evidence: Riggs, knowing the circumstances under which

the calls were intercepted, agreed to accept, from the Harmans,

tapes of the interceptions and conduct an investigation of the

contents in an effort to expose Peavy’s alleged wrongdoing, which

Harman admitted was the purpose for his contacting WFAA and meeting

with Riggs; and Riggs instructed Harman to record entire

conversations, and to not edit tapes.

2.

Alternatively, defendants contend conspiracy liability would

violate their First Amendment protections. This contention is

inadequately briefed. In any event, we reject it for the same

reasons we rejected their contention that the First Amendment

precludes holding them liable, under the Texas Act, for “obtaining”

the interceptions.

C.

Defendants’ cross-appeal challenges the holding they violated

the “use” and “disclosure” provisions of the Federal and Texas

Acts. They maintain they are entitled to summary judgment on this

28
issue, or, in the alternative, that there is a material fact issue,

precluding judgment as a matter of law on this point for the

Peavys.

This issue is addressed prior to considering the presented

First Amendment issues because, obviously, we need not reach them

if defendants did not violate these provisions. See, e.g., County

Court of Ulster County, N.Y. v. Allen, 442 U.S. 140, 154 (1979)

(court has “strong duty to avoid constitutional issues that need

not be resolved in order to determine the rights of the parties to

the case under consideration”).

The Federal Act permits a civil action against “any person”

who “intentionally” discloses to another person or uses “the

contents of any [covered] communication, knowing or having reason

to know that the information was obtained through the interception

of [a covered] communication in violation of this subsection”. 18

U.S.C. § 2511(1)(c) and (d). The Act defines “contents” as

including “any information concerning the substance, purport, or

meaning of that ... communication”. 18 U.S.C. § 2510(8).

Similarly, the Texas Act provides: “A party to a communication may

sue a person who ... uses or divulges information that he knows or

reasonably should know was obtained by interception of the

communication”. TEX. CIV. PRAC. & REM. CODE § 123.002(a)(2) (emphasis

added). For our purposes, “disclose” under the Federal Act and

“divulge” under the Texas Act are considered equivalent.

29
 The district court held defendants violated the Acts by

“using” the contents of the illegally intercepted conversations to

analyze, compile, make notes, and develop leads; and by

“disclosing” those contents in their television broadcasts and to

other persons. Peavy, 37 F. Supp. 2d at 514-15. On a multitude of

grounds, defendants challenge these “used-and-disclosed”

conclusions.

1.

a.

First, defendants contend that, in their television

broadcasts, they did not use or disclose the tapes’ contents,

because the broadcasts were based entirely on sources independent

of the tapes, and those sources “attenuated” the taint of the

interceptions. Defendants maintain they should not be forever

barred from investigating all topics discussed in the intercepted

conversations merely because they first learned of those topics as

a result of the interceptions.

The “attenuation doctrine” was developed in Fourth Amendment

jurisprudence, for criminal cases, as an exception to the

exclusionary rule. See Wong Sun v. United States, 371 U.S. 471,

485-88 (1963). That rule generally prohibits admission of evidence

obtained “during or as a direct result” of a search or seizure in

violation of the Fourth Amendment. Id. at 485. But, under the

attenuation doctrine, such evidence may be admissible if “the

30
connection between the lawless conduct of the police and the

discovery of the challenged evidence has become so attenuated as to

dissipate the taint”. United States v. Ceccolini, 435 U.S. 268,

274 (1978) (internal quotation marks and citation omitted).

In correctly rejecting defendants’ reliance on this doctrine,

the district court stated: “The fact that Riggs later obtained the

same information from independent sources” was irrelevant, Peavy,

37 F. Supp. 2d at 514, because “the exclusionary rule does not

excuse a substantive violation of the law”. Id. at 514 n.17.

Defendants’ reliance on cases addressing the suppression of

wiretap evidence under the Federal Act exclusionary rule, § 2515

(if communication intercepted, contents and evidence derived

therefrom may not be received in evidence if such disclosure would

violate Act), is misplaced in the context of whether defendants are

liable for “use” and “disclosure”. E.g., United States v. Smith,

155 F.3d 1051, 1059-63 (9th Cir. 1998) (applying attenuation

doctrine in resolving § 2515 suppression issue), cert. denied, 525

U.S. 1071 (1999); United States v. Baranek, 903 F.2d 1068, 1072

(6th Cir. 1990) (applying Fourth Amendment principles to resolve §

2515 suppression issues).

b.

We reject Defendants’ claim that their television broadcasts

did not constitute “disclosure” because much of the information in

them was provided a week earlier in a television broadcast by

31
another station. Defendants’ broadcasts included substantial

information not broadcast by the other station. For example, the

other broadcast did not refer to Peavy’s plan to sell insurance to

an entity other than DISD. Moreover, this contention is

inconsistent with defendants’ television broadcasts, which

frequently touted the exclusivity of their reporting and

investigation.

c.

Nevertheless, we conclude there is a material fact issue

whether, in their television broadcasts, defendants intentionally

disclosed the contents of the illegal interceptions. As discussed

infra, this is independent of “use” liability.

Defendants did not play interception-tapes in their television

broadcasts. Although the record contains considerable evidence

that their entire investigation of Peavy and DISD insurance would

not have occurred but for those tapes, and that some of the topics

covered in their broadcasts were initially derived from them, that

evidence is not uncontradicted. There is also considerable

evidence of their extensive investigation, and their reliance on

sources independent of the intercepted contents for the material

reported in those broadcasts.

Therefore, a reasonable jury could conclude that, in their

television broadcasts, defendants did not intentionally disclose

32
the intercepted contents, but instead disclosed information

obtained from sources independent of them.

Again, this point concerns only whether, in their television

broadcasts, defendants intentionally disclosed intercepted

contents, not whether they used the contents in their investigation

or otherwise made other types of disclosures of those contents. As

discussed infra, the Wiretap Acts restrict the publication of

information based solely on the means by which it was acquired.

Accordingly, the Acts do not prohibit disclosure of information

that might be contained in illegal interceptions, so long as such

disclosed information is acquired by other, non-prohibited means.

Therefore, if a jury finds defendants’ television broadcasts

reported information obtained from sources independent of the

tapes, defendants would not be liable, under the Wiretap Acts, for

disclosing such information in their television broadcasts, even if

the information so disclosed was also included in the contents of

those intercepted communications.

This distinction between “use” and “disclosure” gives effect

to both provisions, and does not undermine their purposes.

Prohibiting liability for disclosure, where it is based on sources

independent of interceptions, does not create a market for the

contents of interceptions. This is because, as noted, the person

making such disclosure still remains subject to punishment under

33
the Acts’ “use” provisions, if, for example, the intercepted

communications are used to obtain such independent sources.

Accordingly, the district court erred in holding as a matter

of law that, in their television broadcasts, defendants

intentionally disclosed the contents of the Peavys’ conversations.

2.

Regarding defendants’ “use”, as well as their “disclosure” by

means other than through a television broadcast, defendants claim,

on five bases, exceptions, as a matter of law, to liability: (a)

newsgathering; (b) internal disclosure to corporate agents; (c)

common-interest privilege; (d) disclosure to attorney for legal

advice; and (e) disclosure to law enforcement officials.

a.

Defendants maintain “use” and “disclosure”, during their

investigation and newsgathering, is not proscribed. They do not

deny that they used and, in a non-broadcast context, disclosed the

contents of the interceptions. Instead, they assert the court’s

broad interpretations of “use” and “disclosure” seriously

jeopardize vital First Amendment interests; and, to preserve them,

we should construe the terms narrowly and conclude that exploring

leads from lawfully obtained information is not proscribed “use” or

“disclosure”.

The only case cited in support is United States v. Smith: “A

lead ... is simply not enough to taint an entire investigation”.

34
155 F.3d at 1063. As discussed supra, Smith is a criminal case in

which Fourth Amendment principles were applied in discussing

suppression under § 2515, the statutory exclusionary rule. It

offers no support for defendants’ narrow construction of “use” and

“disclosure”. Defendants’ First Amendment contentions are

addressed infra.

b.

Defendants contend disclosures to WFAA employees of the

contents of the interceptions are not actionable because a

corporation cannot disclose information to itself. They maintain

this principle also applies to disclosures to their attorney,

Watler, and to the person who transcribed portions of the

interceptions, because both acted as WFAA’s agents.

Defendants cite no authority for holding intra-organization

disclosures are not violative of the Wiretap Acts. The Acts

authorize certain specified disclosures. Such exceptions do not

include the types made by defendants. See 18 U.S.C. § 2517(1)

(authorizing disclosure by “[a]ny investigative or law enforcement

officer who, by any means authorized by this chapter, has obtained

knowledge of the contents of any [covered] communication or

evidence derived therefrom” to “another investigative or law

enforcement officer to the extent that such disclosure is

appropriate to the proper performance of the official duties of the

officer making or receiving the disclosure”); 18 U.S.C. § 2517(3)

35
(authorizing disclosure by “[a]ny person who has received, by any

means authorized by this chapter, any information concerning a

[covered] communication, or evidence derived therefrom intercepted

in accordance with the provisions of this chapter ... while giving

testimony under oath or affirmation in any proceeding held under

the authority of the United States or of any State or political

subdivision thereof”); TEX. CIV. PRAC. & REM. CODE § 123.003(a)

(authorizing disclosure by “switchboard operator or an officer,

employee, or agent of a communication common carrier whose

facilities are used in the transmission of a wire communication ...

in the normal course of employment if engaged in an activity that

is necessary to service or for the protection of the carrier’s

rights or property”).

Accordingly, such use and disclosure, during defendants’

investigation and newsgathering, are proscribed by the Federal and

Texas Acts.

c.

Defendants also maintain disclosures to WFAA employees and

agents are protected by a “common interest” privilege. That

privilege, applicable in defamation cases, “attaches to statements

which occur under circumstances wherein any one of several persons

having a common interest in a particular subject matter may

reasonably believe that facts exist which another, sharing that

common interest, is entitled to know”. Gaines v. CUNA Mut. Ins.

36
Soc’y, 681 F.2d 982, 986 (5th Cir. 1982) (citing case applying

Texas law).

Defendants acknowledge, however, that this privilege has not

been applied in cases involving the Wiretap Acts. This issue,

raised in a footnote, is not adequately briefed. In any event, for

purposes of this case, the privilege is not available. Neither Act

authorizes disclosure in such circumstances. See 18 U.S.C. §

2517(1) and (3); TEX. CIV. PRAC. & REM. CODE § 123.003(a).

d.

Defendants contend that disclosure to their attorney, Watler,

is not actionable, because they consulted him for legal advice.

They rely on Nix v. O’Malley, 160 F.3d 343 (6th Cir. 1998), which

recognized an implied “defense exception” to disclosure liability,

pursuant to which the defendant had a privilege to disclose

contents of an interception to his attorneys “to assist in the

defense of the claims made against him”. Id. at 351 (internal

quotation marks omitted). The Sixth Circuit cited with approval

McQuade v. Michael Gassner Mechanical & Elec. Contractors, Inc.,

587 F. Supp. 1183 (D. Conn. 1984), in which that court stated:

To deny defendants’ counsel any possibility of
investigating or rebutting the allegations on
which [a] claim for punitive damages is based,
or of discussing the contents of the tapes
with their clients in the course of preparing
a defense of [a] lawsuit, would be to convert
the allegations of the complaint into a
judgment.

37
587 F. Supp. at 1190.

Defendants’ reliance on these cases is misplaced; their

“disclosures” to Watler were not made for the purpose of defending

against Wiretap Act claims. Instead, they were made after he

advised them (erroneously) that the Federal Act did not apply to

cordless telephone communications.

There was no need for defendants to make the “disclosures” to

Watler in order to obtain his legal advice on whether the Wiretap

Acts proscribed such interception. And, there is no evidence that,

at that time, defendants or Watler contemplated the possibility of

civil actions against defendants under the Federal or Texas Acts.

In fact, the record does not indicate Watler was even aware of the

existence of the Texas Act; it does not reflect that he ever

advised defendants about it.

e.

(1)

Defendants claim Riggs’ “disclosures” to federal law

enforcement authorities and the Dallas Police Department do not

provide a basis for liability because those agents were already

aware of the contents of the communications at the time Riggs

discussed his investigation with them. The record does not support

this contention.

In his deposition, Riggs admitted that ATF Agent Curtiss did

not already know about the tapes before Riggs described their

38
contents to him. And, he testified that, prior to their

conversation, Dallas Police Detective Storey, to whom he also

disclosed the contents of the communications, did not seem to know

about them.

(2)

Alternatively, defendants contend Riggs’ “disclosures” to law

enforcement officials were protected by a qualified privilege to

report crimes. As stated supra, the Federal and Texas Acts

authorize “disclosure” only in specified, limited circumstances,

none of which include the “disclosures” made by Riggs.

In Rodgers v. Wood, 910 F.2d 444 (7th Cir. 1990), the court

rejected a similar privilege claim, holding that the Federal Act

provides “no support for recognizing [an] exception for the common

law privileges protecting statements made to law enforcement agents

in furtherance of criminal investigations”. Id. at 447.

The very nature of the Act is to impose
limitations on the effectiveness of law
enforcement agents in the interests of
protecting the privacy of citizens.... The
Act represents Congress’s careful balancing
between the interests of the enforcement of
criminal laws and the assurance of privacy in
oral and wire communications. To recognize a
common law privilege as [defendant] suggests
would upset that balance.

Id.

3.

The Federal Act prohibits “intentionally” using or disclosing

the contents of covered communications, “knowing or having reason

39
to know that the information was obtained through the interception”

of such a communication in violation of the Act. 18 U.S.C. §

2511(1)(c) and (d) (emphasis added). Under the Texas Act, “a

person who ... uses or divulges information that he knows or

reasonably should know was obtained by interception of the

communication” may be civilly liable. TEX. CIV. PRAC. & REM. CODE §

123.002(2) (emphasis added).

Defendants assert that, in their “uses” and “disclosures”,

they did not act “intentionally”, as required for liability,

because, in good faith reliance on the advice of law enforcement

officials and legal counsel, they did not know, or have reason to

know, the conversations were intercepted illegally. They insist

they are not claiming “mistake of law”, in which a defendant

asserts that his subjective, good faith belief in the lawfulness of

his conduct excuses a violation of the law. Instead, they contend

their state of mind as to the legality of their conduct bears

directly on whether they acted “intentionally”.

The district court rejected that contention, relying on our

court’s having “implicitly rejected a good faith defense”, Peavy,

37 F. Supp. 2d at 511, in Forsyth, 19 F.3d at 1538 n.21 (knowledge

element for use and disclosure liability requires proof defendant

knew “1) the information used or disclosed came from an intercepted

communication, and 2) sufficient facts concerning the circumstances

of the interception such that the defendant could, with presumed

40
knowledge of the law, determine that the interception was

prohibited in light of [the Act]” (quoting Thompson v. Dulaney, 970

F.2d 744, 749 (10th Cir. 1992))). Peavy, 37 F. Supp. 2d at 511.

Defendants rely on United States v. Schilleci, 545 F.2d 519

(5th Cir. 1977), to support their contention that the Federal Act

requires proof of specific intent: that defendants acted

intentionally with the knowledge their conduct violated the Act.

But, as the district court noted, the criminal defendant in

Schilleci was charged with conspiracy to intercept wire and oral

communications; and conspiracy is a specific intent crime. Peavy,

37 F. Supp. at 511 n.14.

It is undisputed defendants knew that the information they

used and disclosed came from interceptions. It is also undisputed

they were aware of sufficient facts concerning the circumstances of

those interceptions such that they could, with presumed knowledge

of the law, determine the interceptions were prohibited by law.

Defendants contend, however, that the presumption they acted with

knowledge of the law was overcome by proof of erroneous legal

advice and reasonable reliance on the Harmans’ statements that law

enforcement officials had told them the interception and recording

were legal. They maintain such reliance negates the mental state

required for liability.

Despite their insistence to the contrary, acceptance of

defendants’ contentions would constitute recognition of an

41
ignorance or mistake of law defense to Federal and Texas Wiretap

Act liability. As the district court noted, our court, at least

implicitly, rejected such a defense in Forsyth; and it has been

rejected by numerous other courts. E.g., Reynolds v. Spears, 93

F.3d 428, 435-36 (8th Cir. 1996) (defendant’s reliance on incorrect

advice from law enforcement officer not defense to liability under

Federal Act); Williams v. Poulos, 11 F.3d 271, 285 (1st Cir. 1993)

(rejecting good faith defense where defendant mistakenly believed

use and disclosure authorized by statute); Thompson v. Dulaney, 970

F.2d 744, 749 (10th Cir. 1992) (“defendant may be presumed to know

the law”); Heggy v. Heggy, 944 F.2d 1537, 1541 (10th Cir. 1991)

(rejecting “good faith” defense to Federal Act liability based upon

mistake of law), cert. denied, 503 U.S. 951 (1992); United States

v. McIntyre, 582 F.2d 1221, 1224-25 (9th Cir. 1978) (rejecting

contention interception not “willful” because defendants believed

in good faith, based on advice from a law enforcement

communications technician, that their conduct was legitimate).

We join those courts and reject an ignorance or mistake of law

defense for disclosure or other use of communications illegally

intercepted in violation of § 2511(1)(c) and (d) of the Federal Act

and § 123.002(2) of the Texas Act. Based on the existence of the

Acts and their knowledge of the circumstances of the Harmans’

interception, defendants, at a minimum, had reason to know the

42
interceptions were illegal. They used and disclosed the contents

of those interceptions purposefully, not inadvertently.

4.

Remaining are three “use” and “disclosure” issues: two raised

by defendants; one, by the Peavys. We do not consider any of them,

because they were not raised in the parties’ opening briefs. E.g.,

United States v. Jackson, 50 F.3d 1335, 1340 n.7 (5th Cir. 1995)

(“It is well-settled that, generally, we will not consider issues

raised for the first time in a reply brief.”).

Defendants contend, for the first time in their reply brief,

that “use” and “disclosure” damages are not permissible without

proof of actual malice under the standard from New York Times Co.

v. Sullivan, 376 U.S. 254, 279-80 (1964); and that, because the

majority of the Peavys’ “use” and “disclosure” allegations were

untimely, we should reverse the district court’s “use” and

“disclosure” holding. (Moreover, the untimeliness issue is not

adequately briefed. And, assuming it has any validity, it would

seem to be a matter for the district court’s consideration for

trial.)

Likewise, in their brief as cross-appellees, rather than in

their opening brief, the Peavys challenge the district court’s

holding that listening to tapes, and reading transcripts, of

interceptions was not a prohibited “use”. (Moreover, as cross-

appellees on this issue, they cannot seek to enlarge their rights

43
under the district court’s decision. See Laker v. Vallette (Matter

of Toyota of Jefferson, Inc.), 14 F.3d 1088, 1090 n.1 (5th Cir.

1994).)

D.

Despite holding that defendants “used” and “disclosed” the

interceptions in violation of the Wiretap Acts, based, in part, on

concluding, as required by the Acts, that defendants knew, or had

reason to know, the interceptions were in violation of the Acts,

the district court nevertheless granted summary judgment for

defendants on the use and disclosure claims, on the ground that

imposition of liability would violate the First Amendment. Peavy,

37 F. Supp. 2d at 515-18. In so doing, it applied the strict

scrutiny analysis from The Florida Star v. B.J.F., 491 U.S. 524,

533 (1989). Peavy, 37 F. Supp. 2d at 515-16.

One of the key bases underlying this First Amendment holding

was the court’s conclusion that, although the Harmans intercepted

illegally, defendants nevertheless “lawfully obtained” the contents

of those interceptions because they neither participated in them

nor procured/obtained the Harmans to do so. Id. at 516-17.

Therefore, in addressing the as-applied constitutionality of the

“use” and “disclosure” provisions, the district court did not

consider defendants’ participation concerning the interceptions,

such as Riggs advising the Harmans to record complete

conversations. But, such participation, even if not rising to the

44
level of “procuring” or “obtaining” the Harmans to make the

interceptions, is a factor that must be considered in our de novo

review of the summary judgment awarded defendants on their claim

that, on the facts in this case, the “use” and “disclosure”

provisions are unconstitutional.

Regarding such participation, there is a material fact issue

for the Texas “obtains” claim. And, even though the Peavys cannot

bring an action/obtain damages if defendants, in violation of the

Federal Act, “procured” the Harmans to make the interceptions, such

“procurement” vel non (for which there is also a material fact

issue) has a bearing on whether the contents of the interceptions

were lawfully received by defendants. If not lawfully received,

this obviously changes the scope of the issue to be addressed for

this as-applied challenge.

Because of the material fact issue on “procure/obtain” and the

linkage of such conduct to whether defendants “lawfully received”

the tapes, the as-applied constitutional issue arguably could be

avoided now, by remanding it for reconsideration by the district

court at trial. Three considerations cut against doing so.

First, as discussed infra, defendants’, especially Riggs’,

participation concerning the interceptions, together with the other

factors considered infra, compels our upholding the

constitutionality of the “use” and “disclosure” provisions of the

45
Federal and Texas Acts. In short, further evidence is not needed

for this issue.

Second, if we remanded this constitutional issue for trial

(further evidence), in an attempt to avoid reaching it, our

reaching it would probably simply be delayed, instead, and at great

cost in time and expense to the parties and district court.

Because of the summary judgment posture of this case, such

avoidance of the constitutional issue at this stage would not be

prudential. “The flame is not worth the candle.”

Third, and related to the second consideration, even if the

Peavys prevail at trial on their Texas “obtains” claim, that would

not obviate the necessity of the constitutionality of the “use” and

“disclosure” provisions being addressed, because, notwithstanding

whether defendants may be liable for damages for “obtaining”

another to make the interceptions, in violation of the Texas Act,

both Acts also authorize separate damages for each “use” or

“disclosure” violation. See Fultz v. Gilliam, 942 F.2d 396, 402

(6th Cir. 1991) (“The text of the [Federal Act] plainly indicates,

and its purpose necessitates, that a new and discrete cause of

action accrue ... each time a recording of an unlawfully

intercepted communication is played to a third party who has not

yet heard it.”); Bess v. Bess, 929 F.2d 1332, 1334 (8th Cir. 1991)

(plaintiff awarded damages for each of 12 days of interception, as

well as additional statutory damages for use of contents).

46
 In this respect, in permitted civil actions for violation of

the Federal Act, “the court may assess as damages whichever is the

greater of ... the sum of the actual damages suffered by the

plaintiff and any profits made by the violator as a result of the

violation; or ... 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). Punitive damages, reasonable attorney’s fees, and

costs are also authorized. 18 U.S.C. § 2520(b). Likewise, under

the Texas Act, a person may recover, inter alia, $1,000 statutory

damages, actual damages in excess of $1,000, punitive damages, and

reasonable attorney’s fees and costs. TEX. CIV. PRAC. & REM. CODE §

123.004.

Accordingly, the more narrow issue before us is whether, on

the facts in this case, the First Amendment is violated by the

Federal and Texas Acts, as applied to the use and disclosure of

illegally intercepted communications about matters of public

significance, by persons who: knew, or had reason to know, the

communications were intercepted in violation of the Acts; but who

did not themselves make the interceptions; but who did have

undisputed participation concerning the interceptions to the extent

defendants did.

1.

a.

47
 Defendants urge the district court was correct in applying

strict scrutiny and concluding that, absent a government interest

of the highest order, the First Amendment prohibits punishing the

media for using and disclosing “lawfully-received”, truthful

information about matters of public significance. Therefore,

defendants claim the “use” and “disclosure” provisions are

unconstitutional as applied to them. (Their alternative, facial

challenge to the constitutionality of those provisions, based on

vagueness and overbreadth, is discussed infra.)

Of course, because defendants violated the use/disclosure

provisions as a matter of law, as well as it being undisputed that

defendants, especially Riggs, did participate to some extent

concerning the interceptions, and as well as there being a material

fact issue whether defendants “procured” or “obtained” the Harmans

to make the interceptions, it is quite questionable, as discussed

infra, that defendants “lawfully received” the intercepted

contents. In any event, they rely primarily on the Supreme Court’s

decisions in Landmark Communications, Inc. v. Virginia, 435 U.S.

829 (1978); Smith v. Daily Mail Publ’g Co., 443 U.S. 97 (1979); and

Florida Star.

Landmark concerned a newspaper indicted for violating a

Virginia statute which proscribed divulging information about

proceedings before a state judicial review commission authorized to

hear complaints about judges’ disability or misconduct. 435 U.S.

48
at 830. The newspaper accurately reported on an inquiry pending

before the commission. Id. at 831.

The “narrow and limited question presented” was “whether the

First Amendment permits the criminal punishment of third persons

who are strangers to the inquiry, including the news media, for

divulging or publishing truthful information regarding confidential

proceedings of the [commission]”. Id. at 837. The Court held:

“[T]he publication Virginia seeks to punish under its statute lies

near the core of the First Amendment, and [Virginia’s] interests

advanced by the imposition of criminal sanctions are insufficient

to justify the actual and potential encroachments on freedom of

speech and of the press which follow therefrom”. Id. at 838.

The Court, however, was not “concerned with the possible

applicability of the statute to one who secures the information by

illegal means and thereafter divulges it”. Id. at 837 (emphasis

added). (Again, there are material fact issues whether defendants

“procured” or “obtained” the Harmans to make the illegal

interceptions.)

At issue in Daily Mail was a West Virginia statute which

singled out newspapers for criminal sanctions if a juvenile

offender’s name was published without written approval of the

juvenile court. 443 U.S. at 98. Through routine monitoring of a

police radio frequency, two newspapers learned about the shooting

death of a student, and immediately sent reporters and

49
photographers to the school where the incident occurred. Id. at

99. Reporters there obtained the name of the alleged assailant, a

minor, from witnesses, the police, and a prosecutor. Id.

Both newspapers were indicted under the statute for publishing

articles about the incident. Id. at 99-100. One did not mention

the alleged shooter’s name in its first article, published the

afternoon of the shooting, because of the statute’s prohibition;

but, both named him in articles published the next day, after at

least three different radio stations had broadcast his name. Id.

at 99-100.

The Court concluded that the statute did not satisfy the

constitutional standards applied in Landmark. Id. at 102. “[Our]

recent decisions demonstrate that state action to punish the

publication of truthful information seldom can satisfy

constitutional standards”, id.; and those opinions “suggest

strongly that if a newspaper lawfully obtains truthful information

about a matter of public significance then state officials may not

constitutionally punish publication of the information, absent a

need to further a state interest of the highest order”. Id. at 103

(emphasis added).1

1
In addition to citing Landmark, the Court cited Cox Broad.
Corp. v. Cohn, 420 U.S. 469 (1975) (where rape victim’s name became
known to public through official court records dealing with
rapist’s trial, damages could not be recovered against newspaper
for publishing victim’s name in violation of state statute that
criminalized such publication); and Oklahoma Publ’g Co. v. District

50
 The Court stated that, “even assuming the statute served a

state interest of the highest order [protecting anonymity of

juvenile offenders], it does not accomplish its stated purpose”,

because it applied only to newspapers, and thus did not prevent

publication by other media. Id. at 105. The Court pointed out,

however: its holding was “narrow”; and no issue of privacy was

involved. Id.

Florida Star concerned a Florida statute which made it

unlawful to “print, publish, or broadcast ... [a sex offense

victim’s name] in any instrument of mass communication”. 491 U.S.

at 526 (internal quotation marks and citation omitted). A

newspaper published a rape victim’s name after obtaining it from a

publicly released police report. The newspaper was held liable in

an action by the victim based on violation of the statute. Id. at

526.

Although the Court ultimately concluded that such imposition

of damages violated the First Amendment, it refused the newspaper’s

Court, 430 U.S. 308 (1977) (vacating injunction prohibiting news
media from publishing name or photograph of juvenile, where,
despite state statute closing juvenile trials to public, judge had
permitted reporters and other members of public to attend court
hearing, because state cannot constitutionally restrain
dissemination of truthful information in public domain). Daily
Mail, 443 U.S. at 102-03. Although those “cases involved
situations where the government itself provided or made possible
press access to the information”, id. at 103, the Court said that
factor was “not controlling”, id., because “[a] free press cannot
be made to rely solely upon the sufferance of government to supply
it with information”. Id. at 104.

51
invitation to hold broadly “that the press may never be punished,

civilly or criminally, for publishing the truth”. Id. at 531.

Instead, “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 533.

The principle from Daily Mail was applied: “[I]f a newspaper

lawfully obtains truthful information about a matter of public

significance then state officials may not constitutionally punish

publication of the information, absent a need to further a state

interest of the highest order”. Id. (emphasis added; internal

quotation marks and citation omitted). In addition to “the

overarching public interest, secured by the Constitution, in the

dissemination of truth”, three additional considerations supported

“[a]ccording the press the ample protection provided by that

principle”. Id. at 534 (internal quotation marks and citation

omitted).

First, “because the Daily Mail formulation only protects the

publication of information which a newspaper has lawfully obtained,

the government retains ample means of safeguarding significant

interests upon which publication may impinge”. Id. at 534

(emphasis added; internal quotation marks and citation omitted).

Especially significant for the purposes of the case at hand, the

Court noted: “To the extent sensitive information rests in private

52
hands, the government may under some circumstances forbid its

nonconsensual acquisition, thereby bringing outside of the Daily

Mail principle the publication of any information so acquired”.

Id. (emphasis added).

Second, “punishing the press for its dissemination of

information ... already publicly available is relatively unlikely

to advance the interests in the service of which the State seeks to

act”. Id. at 535 (emphasis added).

The third, and final, consideration supporting application of

the Daily Mail principle was the “timidity and self-censorship

which may result from allowing the media to be punished for

publishing certain truthful information”. Id. (internal quotation

marks and citation omitted). Such “fear of excessive media self-

suppression” was applicable to “information released, without

qualification, by the government”. Id. at 535-36.

Applying Daily Mail, the Court held the newspaper could not be

held civilly liable, because: (1) it had “lawfully obtained

truthful information about a matter of public significance”, id.

(emphasis added; internal quotation marks and citation omitted);

and (2) although the state’s interests in protecting rape victims’

privacy and physical safety and encouraging them to report sex

offenses without fear of exposure are “highly significant

interests”, imposing liability for publication under the

circumstances of that case was “too precipitous a means of

53
advancing” those interests, id. at 537, because (a) the government

provided the information to the media, which “ma[d]e it especially

likely that, if liability were to be imposed, self-censorship would

result”, id. at 538; (b) under the negligence per se standard

applied by Florida courts, liability follows automatically from

publication, without “a scienter requirement of any kind ...,

engendering the perverse result that truthful publications

challenged pursuant to this cause of action are less protected by

the First Amendment than even the least protected defamatory

falsehoods”, id. at 539; and (c) the statute was facially

underinclusive, because it proscribed publication only by an

“instrument of mass communication”, but not by other means, id. at

540.

The Court stressed the “limited” nature of its holding:

We do not hold that truthful publication is
automatically constitutionally protected, or
that there is no zone of personal privacy
within which the State may protect the
individual from intrusion by the press, or
even that a State may never punish publication
of the name of a victim of a sexual offense.
We hold only that where a newspaper publishes
truthful information which it has lawfully
obtained, punishment may lawfully be imposed,
if at all, only when narrowly tailored to a
state interest of the highest order, and that
no such interest is satisfactorily served by
imposing liability ... under the facts of this
case.

Id. at 541 (emphasis added).

54
 Footnote eight, extremely relevant to the case at hand,

stated: “The Daily Mail principle does not settle the issue

whether, in cases where information has been acquired unlawfully by

a newspaper or by a source, government may ever punish not only the

unlawful acquisition, but the ensuing publication as well”. Id. at

535 n.8 (“unlawfully” emphasized in original; other emphasis

added).

b.

The Peavys and the United States urge that distinctions

between the Federal and Texas Acts and the statutes at issue in

Florida Star, Daily Mail, and Landmark make inapplicable the

analysis applied in those cases. They rely heavily on the fact

that those statutes, unlike the Wiretap Acts, restricted speech on

the basis of content; penalized the disclosure of information

without imposing any underlying limitation on its acquisition; and,

in Florida Star, sanctioned the media for publishing information

provided by the government.

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

Peavys and the United States claim the Wiretap Acts are subject

only to intermediate First Amendment scrutiny, because they are

content-neutral laws of general applicability, which do not single

out the media for special burdens, and have only an incidental

effect on its ability to gather and report the news. They also

55
rely on Branzburg v. Hayes, 408 U.S. 665 (1972); and Cohen v.

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

In O’Brien, a person convicted for burning his draft card made

a First Amendment challenge to a federal statute which

criminalized, inter alia, such knowing destruction. 391 U.S. at

370. The statute was held constitutional, facially and as applied.

Id. at 372.

The Court noted that, on its face, the statute did not abridge

free speech, but instead dealt “with conduct having no connection

with speech”; and “there is nothing necessarily expressive”

involved in O’Brien’s conduct. Id. at 375. It refused to “accept

the view that an apparently limitless variety of conduct can be

labeled ‘speech’ whenever the person engaging in the conduct

intends thereby to express an idea”. Id. at 376. But, even

assuming “the alleged communicative element in O’Brien’s conduct

[was] sufficient to bring into play the First Amendment, it [did]

not necessarily follow that the [card’s] destruction ... is

constitutionally protected activity”. Id.

The statute was held to satisfy the level of scrutiny applied

when “‘speech’ and ‘nonspeech’ elements are combined in the same

course of conduct”. Id. at 376-77.

[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

56
 unrelated to the suppression of free
expression; and if the incidental restriction
on alleged First Amendment freedoms is no
greater than is essential to the furtherance
of that interest.

Id. at 377.

At issue in Branzburg was “whether requiring newsmen to appear

and testify before ... grand juries abridges the freedom of speech

and press guaranteed by the First Amendment”. 408 U.S. at 667.

The reporters maintained that, in order to gather news, they often

had to agree either not to identify the source of published

information, or to publish only a portion of the facts revealed by

him. Id. at 679.

In holding newsmen could be required to so testify, the Court

pointed out it was not suggesting “news gathering does not qualify

for First Amendment protection [, because] without some protection

for seeking out the news, freedom of the press could be

eviscerated”. Id. at 681. On the other hand, “[i]t is clear that

the First Amendment does not invalidate every incidental burdening

of the press that may result from the enforcement of civil or

criminal statutes of general applicability”. Id. at 682.

Similarly, “[i]t has generally been held that the First Amendment

does not guarantee the press a constitutional right of special

access to information not available to the public generally”. Id.

at 684 (emphasis added).

57
 The Court declined to “grant newsmen a testimonial privilege

that other citizens do not enjoy”, because it “perceive[d] no basis

for holding that the public interest in law enforcement and in

ensuring effective grand jury proceedings is insufficient to

override the consequential, but uncertain, burden on news gathering

that is said to result from insisting that reporters, like other

citizens, respond to relevant questions put to them in the course

of a valid grand jury investigation”. Id. at 690-91.

Of particular interest for the case at hand is this

observation:

It would be frivolous to assert ... that the
First Amendment, in the interest of securing
news or otherwise, confers a license on either
the reporter or his news sources to violate
valid criminal laws. Although stealing
documents or private wiretapping could provide
newsworthy information, neither reporter nor
source is immune from conviction for such
conduct, whatever the impact on the flow of
news.... The Amendment does not reach so far
as to override the interest of the public in
ensuring that neither reporter nor source is
invading the rights of other citizens through
reprehensible conduct forbidden to all other
persons.

Id. at 691-92 (emphasis added).

Cohen concerned “whether the First Amendment prohibits a

plaintiff from recovering damages, under state promissory estoppel

law, for a newspaper’s breach of a promise of confidentiality given

to the plaintiff in exchange for information”. 501 U.S. at 665.

58
Holding that it does not, the Court refused to apply the analysis

used in Landmark, Daily Mail, and Florida Star. Id. at 668-69.

Instead, controlling was “the equally well-established line of

decisions holding 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 (emphasis added).2 The Florida Star line of

cases was distinguished on the ground that “the truthful

information sought to be published must have been lawfully

acquired. The press may not with impunity break and enter an

office or dwelling to gather news”. Id. (emphasis added).

“It is ... beyond dispute that the publisher of a newspaper

has no special immunity from the application of general laws [and]

has no special privilege to invade the rights and liberties of

2
For illustrating such generally applicable laws, the
enforcement of which have incidental effects on the media’s ability
to gather and report news, Cohen cited the following cases, all but
two of which concern commercial regulation: University of Pa. v.
E.E.O.C., 493 U.S. 182, 201-02 (1990) (must pay non-discriminatory
taxes); Minneapolis Star & Tribune Co. v. Minnesota Comm’r of
Revenue, 460 U.S. 575, 581-83 (1983) (same); Zacchini v. Scripps-
Howard Broad. Co., 433 U.S. 562, 576-79 (1977) (may not publish
copyrighted material without obeying copyright laws); Branzburg;
Citizen Publ’g Co. v. United States, 394 U.S. 131, 139 (1969) (may
not restrain trade in violation of antitrust laws); Oklahoma Press
Publ’g Co. v. Walling, 327 U.S. 186, 192-93 (1946) (must comply
with Fair Labor Standards Act); Associated Press v. United States,
326 U.S. 1 (1945) (may not restrain trade in violation of antitrust
laws); Murdock v. Pennsylvania, 319 U.S. 105, 112 (1943) (must pay
non-discriminatory taxes); and Associated Press v. National Labor
Relations Bd., 301 U.S. 103 (1937) (must comply with National Labor
Relations Act).

59
others.” Id. at 670 (internal quotation marks and citation

omitted). Therefore, “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.

Minnesota’s doctrine of promissory estoppel was “a law of

general applicability”, because it did “not target or single out

the press”, but was “generally applicable to the daily transactions

of all the citizens of Minnesota”. Id. Accordingly, “[t]he First

Amendment d[id] not forbid its application to the press”. Id.

Applying that estoppel doctrine to the newspapers would not

punish them for publishing lawfully-obtained, truthful information,

because “compensatory damages are not a form of punishment” and,

“[i]n any event, ... the characterization of the payment makes no

difference for First Amendment purposes when the law being applied

is a general law and does not single out the press”. Id.

Florida Star and Daily Mail were distinguished: “In those

cases, the State itself defined the content of publications that

would trigger liability”; in contrast, in Cohen, “[t]he parties

themselves ... determine[d] the scope of their legal obligations,

and any restrictions that may be placed on the publication of

truthful information are self-imposed”. Id. at 670-71.

In addition, it was “not at all clear that [the newspaper]

obtained Cohen’s name ‘lawfully’ ..., at least for purposes of

publishing it”, because it obtained it “only by making a promise

60
... [it] did not honor”. Id. at 671 (emphasis added). The

dissenting opinions’ suggestion “that the press should not be

subject to any law ... which in any fashion or to any degree limits

or restricts the press’ right to report truthful information” was

rejected, because “[t]he First Amendment does not grant the press

such limitless protection”. Id.

Cohen concluded that, if permitting a promissory estoppel

claim had the effect of “inhibit[ing] truthful reporting because

news organizations will have legal incentives not to disclose a

confidential source’s identity even when that person’s identity is

itself newsworthy”, then it was “no more than the incidental, and

constitutionally insignificant, consequence of applying to the

press a generally applicable law that requires those who make

certain kinds of promises to keep them”. Id. at 671-72.

c.

Two recent cases from other circuits have addressed the level

of scrutiny for the constitutionality vel non of the Federal Act:

Bartnicki v. Vopper, 200 F.3d 109 (3d Cir. 1999), cert. granted, 68

U.S.L.W. 3685, 3698 (U.S. 26 June 2000) (Nos. 99-1687 and 99-1728);

Boehner v. McDermott, 191 F.3d 463 (D.C. Cir. 1999), petition for

cert. filed, 68 U.S.L.W. 3686 (U.S. 25 Apr. 2000) (No. 99-1709).

In Boehner, a Florida couple, using a radio scanner,

intercepted and recorded a telephone conversation between

Congressman Boehner, a Republican member of the House of

61
Representatives, and members of his Party. 191 F.3d at 464-65.

The couple delivered the tape to Congressman McDermott, then the

ranking Democratic member of the House Ethics Committee, explaining

by cover letter the tape contained “a conference call heard over a

scanner”. Id. at 465. Congressman McDermott gave copies of the

tape to three newspapers, each of which published an article about

the intercepted conversation. Id.

Congressman Boehner filed a civil action against Congressman

McDermott (but not the newspapers) for violating § 2511(1)(c)

(disclosure). Id. The district court agreed with Congressman

McDermott that § 2511(1)(c), as applied to him, violated the First

Amendment. Id. at 466. The court of appeals (split panel)

reversed, applying intermediate scrutiny. Id. 467-70.

The majority opinion observed that “the O’Brien analysis

applies to statutes containing generally applicable, content-

neutral prohibitions on conduct that create incidental burdens on

speech”. Id. at 467. Section 2511(1)(c) fit that description

because, to the extent it proscribes disclosures which “entail

constitutionally protected speech, the statute regulates it without

reference to content”, id. at 468; and it furthers a substantial

governmental interest unrelated to the suppression of free

expression because, “rather than impinging on speech, ... [it]

promotes the freedom of speech”. Id.

62
 The incidental restriction on speech imposed by § 2511(1)(c)

was “no greater than is essential to the furtherance” of the

government’s substantial interests: “[W]ithout [that] prohibition

..., the government would have no means to prevent the disclosure

of private information, because criminals like [the intercepting

Florida couple] can literally launder illegally intercepted

information and there would be almost no force to deter exposure of

any intercepted secret”. Id. at 470 (internal quotation marks and

citation omitted).

The majority, for separate reasons, distinguished Florida

Star. One member concluded it had no application for a host of

reasons, including: § 2511(1)(c) is not directed at the press; it

seeks to protect the privacy of private, not public,

communications; and it has a scienter requirement. Id. at 471-76.

The other majority-member assumed, without deciding, that Florida

Star “applies in principle” but, because Congressman McDermott did

not lawfully obtain the tape, § 2511(1)(c) was subject to

intermediate scrutiny as applied to him. Id. at 479.

For Bartnicki, as noted, the Court granted certiorari in June

2000. The case concerned an unknown person intercepting and

recording a cellular telephone conversation, regarding a teachers’

pay raise, between Kane, a teachers’ union president, and

Bartnicki, a union negotiator. 200 F.3d at 113. The anonymous

interceptor left the tape in the mailbox of Yocum, the president of

63
a citizens’ organization opposed to the union’s proposals. Id.

After listening to the tape, Yocum gave copies to local radio

stations, which broadcast parts of it. Id.

Bartnicki and Kane sued Yocum and the media defendants for

violating § 2511(1)(c) and (d) (disclosure and use), and similar

provisions of a Pennsylvania statute. Id. Relying primarily on

Cohen, the district court denied summary judgment for defendants,

holding that the use and disclosure provisions were generally

applicable laws that did not single out the media or purposefully

restrict free expression, and could be applied to the media without

offending the First Amendment. Id. at 118.

On interlocutory appeal, the Third Circuit panel majority

rejected the media defendants’ contention that Daily Mail

controlled, because Florida Star footnote eight, quoted supra and

infra, “explicitly repudiated any suggestion that [Daily Mail]

answers ... whether a statute that limits the dissemination of

information obtained by means of questionable legality is subject

to First Amendment scrutiny”. Id. at 117 (emphasis added). The

court did not resolve whether the damages provisions of the Federal

and Pennsylvania Acts were generally applicable laws, because the

district court, “by suggesting that generally applicable laws do

not require First Amendment scrutiny when applied to the press, ...

read ... Cohen too broadly”. Id. at 118. Instead, the court

64
interpreted Cohen to hold “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 enforceable against individuals or organizations”. Id. at 119.

As in the case at hand, the United States intervened in

Bartnicki to defend the constitutionality of the Federal Wiretap

Act. It claimed the use and disclosure provisions are subject to

intermediate scrutiny for two reasons: (1) they are generally

applicable laws imposing only incidental burdens on expression; and

(2) to the extent the provisions restrict speech in particular

cases, they do so in a content-neutral manner. Id.

The court rejected the first contention: “[W]hen 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

scrutiny as a statute that regulates speech alone”. Id. at 121.

But, it agreed that the use and disclosure provisions are

content-neutral, because the justification for proscribing such

conduct — strengthening “the underlying ban on unauthorized

interception, by denying the wrongdoer the fruits of his labor and

by eliminating the demand for those fruits by third parties” —

“does not rely on the communicative impact of speech”. Id. at 123

(emphasis added; internal quotation marks and citation omitted).

Applying intermediate scrutiny, the court held the

“government’s interest in protecting privacy by helping maintain

65
the confidentiality of [covered] communications ... is a

significant state interest”. Id. at 125 (internal quotation marks

and citation omitted).

In this regard, the use and disclosure proscriptions,

according to United States, furthered government’s interests in

protecting the privacy of covered 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”. Id.

(internal quotation marks and citation omitted). The court stated

the first was inapplicable, because, unlike here, there was no

evidence defendants encouraged or participated in the interception.

Id. Accordingly, with respect to the second, “[t]he connection

between prohibiting third parties from using or disclosing

intercepted material and preventing the initial interception is

indirect at best”. Id. at 125-26.

It concluded, therefore, that the use and disclosure

provisions, as applied to defendants not connected with the

interception, were not narrowly tailored to serve the government’s

interests. Id. at 126. Because persons who indirectly

participated in the interception could be punished under the

statute, “the government’s desired effect can be reached by

enforcement of existing provisions against the responsible parties

rather than by imposing damages on these defendants”. Id.

66
 The court distinguished Boehner on the ground, among others,

that, unlike Yocum, who found the tape of the intercepted

conversation in his mailbox, Congressman McDermott, in Boehner,

entered into a transaction with the interceptors when he accepted

the tape from them. Id. at 128-29.

On the facts in Bartnicki (obviously, quite different from

those here), the court concluded “that the government’s significant

interest in protecting privacy is not sufficient to justify the

serious burdens the damages provisions of the Wiretapping Acts

place on free speech”. Id. at 129. It therefore held the Acts

“fail the test of intermediate scrutiny and may not

constitutionally be applied to penalize the use or disclosure of

illegally intercepted information where [, unlike here,] there is

no allegation that the defendants participated in or encouraged

that interception”. Id. (emphasis added).

d.

In the light of the foregoing jurisprudence, we must decide

what level of First Amendment scrutiny is appropriate in

determining whether defendants can be subject to civil liability

for use and disclosure of illegally-intercepted private telephone

conversations, which they received directly from the interceptors,

with full knowledge of the circumstances of the interceptions and

with some participation concerning the interceptions. None of the

foregoing cases addressed this precise question.

67
 Florida Star is similar to this case in that the Peavys are

seeking to hold defendants civilly liable for, inter alia,

publication of truthful information. And, the governmental

interests supporting the Federal and Texas Acts and the Florida

statute are similar in that they seek to protect privacy;

accordingly, this case, like Florida Star, involves balancing

privacy and free press interests.

But, Florida Star is distinguishable in numerous ways. Unlike

the Florida statute, which restricted speech on the basis of

content, the Wiretap Acts, except under certain limited

circumstances not present here, prohibit use and disclosure of all

illegal interceptions, irrespective of their subject matter. The

use and disclosure restrictions are instead based on the manner in

which the information is acquired.

The statutes at issue in Daily Mail and Landmark also were

content-based restrictions on speech. We recognize that the Court

did not rely on the content-based nature of the statutes in

deciding to apply strict scrutiny in those cases. Nevertheless,

that distinction exists and is worthy of note, inasmuch as content-

based regulations of expression are subject to strict scrutiny,

irrespective of whether they prohibit the publication of lawfully-

obtained information. See Turner Broad. Sys., Inc. v. F.C.C., 512

U.S. 622, 642 (1994) (“Our precedents ... apply the most exacting

68
scrutiny to regulations that suppress, disadvantage, or impose

differential burdens upon speech because of its content”).

The statute in Florida Star targeted a segment of the media

(“any instrument of mass communication”); but, the Federal and

Texas Acts do not single out the media for special burdens.

Instead, they apply to “any person” who uses or discloses

illegally-intercepted communications, if he knows or has reason to

know of the interception’s illegality. Also unlike the Federal and

Texas Acts, the Florida statute did not require proof of scienter.

Moreover, none of the considerations underlying the Court’s

application of the Daily Mail principle in Florida Star are present

here. The first consideration — government’s retention of ample

means of safeguarding significant interests upon which publication

may impinge — is inapplicable. Unlike the reporter in Florida

Star, who obtained the victim’s name from public records made

available by the government (far from it), the contents of the

Peavys’ conversations had not been entrusted to the government, but

were instead given to defendants by private individuals who

intercepted them illegally. “To the extent sensitive information

rests in private hands, the government may under some circumstances

forbid its nonconsensual acquisition, thereby bringing outside of

the Daily Mail principle the publication of any information so

acquired”. Florida Star, 491 U.S. at 534.

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 Moreover, in the light of our affirming that, as a matter of

law, defendants violated the use and disclosure provisions, they

knew or should have known the interceptions were illegal. In

addition, defendants had some participation concerning the

interceptions. (Moreover, there are material fact issues for

whether they “procured” or “obtained” the Harmans to make the

illegal interceptions. This bears also on defendants’ knowledge of

illegal interceptions.) Therefore, as noted, it is quite arguable

that defendants did not lawfully receive the contents of the tapes.

See Boehner, 191 F.3d at 479 (Ginsburg, J., concurring) (even if

the receipt of the tape containing the illegally intercepted call

was lawful, “[o]ne who obtains information in an illegal

transaction, with full knowledge the transaction is illegal, has

not ‘lawfully obtain[ed]’ that information in any meaningful

sense”).

The second Florida Star consideration — “the fact that

punishing the press for its dissemination of information which is

already publicly available is relatively unlikely to advance the

interests in the service of which [government] seeks to act”, id.

at 535 — is likewise inapplicable, because the contents of the

Peavys’ conversations were not publicly available or in the public

domain when defendants received, used, and disclosed them.

The final Florida Star consideration — “the timidity and self-

censorship which may result from allowing the media to be punished

70
for publishing certain truthful information”, id. (internal

quotation marks and citation omitted) — presents a somewhat closer

question. Nevertheless, the Court’s concern in that respect seemed

to be limited to “information released, without qualification, by

the government”. Id. at 536. “A contrary rule, depriving

protection to those who rely on the government’s implied

representations of the lawfulness of dissemination, would force

upon the media the onerous obligation of sifting through government

... pronouncements to prune out material arguably unlawful for

publication”. Id. Here, the only representation government has

made regarding the lawfulness of use and disclosure of illegal

interceptions is in the Federal and Texas Acts prohibiting such

conduct. Again, that prohibition applies only if the using or

disclosing person does so “intentionally”, and “knows or has reason

to know” the interceptions were illegal.

Accordingly, the Acts do not impose an “onerous obligation” on

the media. Instead, it is subject to the obligation imposed on all

citizens: the duty not to use or disclose interceptions, knowing

or having reason to know they were in violation of the Wiretap

Acts.

In the light of that scienter requirement, we think it highly

unlikely such an obligation will result in “timidity and self-

censorship” because, as stated in the Bartnicki dissent:

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 One would suppose that a responsible
journalist ... would be unlikely to propose
publication of a ... conversation without some
effort to insure that [it] in fact took place
and to authenticate the identities of the
parties to [it]. As part of such an inquiry,
the question whether the parties to the
conversation had authorized its recording and
release, or whether others had lawfully
intercepted the conversation, would seem
naturally 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.

Bartnicki, 200 F.3d at 135 (Pollak, J., dissenting). These

observations are all the more compelling here, in that defendants

had some participation concerning the interceptions.

Finally, and perhaps most important, is Florida Star footnote

eight: “The Daily Mail principle does not settle the issue

whether, in cases where information has been acquired unlawfully by

a newspaper or by a source, government may ever punish not only the

unlawful acquisition, but the ensuing publication as well.” Id. at

535 n.8 (“unlawfully” emphasized in original; other emphasis

added). Expressly reserved was the question at issue here. But,

as a member of the majority observed separately in Boehner, the

Branzburg Court may have shed some light on the answer to that

question: the First Amendment “does not reach so far as to

override the interest of the public in ensuring that neither

reporter nor source is invading the rights of other citizens

through represensible conduct forbidden to other persons”.

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Boehner, 191 F.3d at 473 (separate opinion of Randolph, J. (quoting

Branzburg, 408 U.S. at 691-92) (emphasis added)).

Likewise, the intermediate scrutiny cases advanced by the

Peavys and the United States are distinguishable. The statute at

issue in O’Brien was targeted at conduct (proscribed knowingly

destroying draft card) and imposed no restrictions on the media’s

publication of truthful information. And, the publication

restriction in Cohen was self-imposed.

Bartnicki and Boehner are also distinguishable. Media

liability for publication was not at issue in Boehner; and the

media defendants in Bartnicki, unlike Riggs and WFAA, were not in

any way involved with the interceptors, or the interceptions, but

instead received the interceptions from a third party, in whose

mailbox the anonymous interceptor had left the tape of the

intercepted communications.

Considering these cases, and the distinctions between them and

the case at hand, we conclude that the use and disclosure

provisions, as applied to Riggs and WFAA, must satisfy “the

intermediate level of scrutiny applicable to content-neutral

restrictions that impose an incidental burden on speech”. Turner,

512 U.S. at 662.

Along this line, we reject defendants’ contention that the

Federal and Texas Acts impose more than an “incidental” burden on

the gathering and reporting of news.

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 According to defendants, a burden on the media can be

characterized as “incidental” only if it indirectly affects

newsgathering and publication, or subjects the media to non-

discriminatory economic regulation. Defendants claim the Acts

directly affect newsgathering and reporting because they completely

proscribe use and disclosure of all contents of interceptions.

Defendants interpret too broadly what constitutes an

“incidental” effect. The Acts restrict use and disclosure of

information based solely on the means by which it is acquired, and

the restriction applies only if the using or disclosing person

knows, or has reason to know, of the illegal manner of acquisition.

Accordingly, the Acts do not prohibit gathering and publishing the

same information, acquired from other sources.

2.

Under O’Brien’s intermediate scrutiny analysis, “a content-

neutral regulation [such as the Federal and Texas Wiretap Acts]

will be sustained if” the regulation

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 alleged First Amendment
freedoms is no greater than is essential to
the furtherance of that interest.

Turner, 512 U.S. at 662 (quoting O’Brien, 391 U.S. at 377).

The Wiretap Acts satisfy intermediate scrutiny, according to

the United States and the Peavys, because: (1) the United States

74
and Texas each have a substantial interest in maintaining the

confidentiality of private communications; (2) the use and

disclosure proscriptions are unrelated to the suppression of

speech, because liability is based on the means of acquisition of

the information, rather than the content, and the Acts do not

single out speech for special burdens, but prohibit all

unauthorized uses and disclosures; and (3) the incidental burdens

on speech are not impermissibly broad, because disclosure is not

singled out for special burdens, and the Acts do not prohibit the

use or disclosure of the same information obtained by non-

prohibited means.

The use and disclosure provisions, in defendants’ view, fail

intermediate scrutiny because they impose an absolute, categorical

ban on speech and expressive conduct, which burdens substantially

more speech than is necessary to further government’s legitimate

interests in protecting privacy.

a.

One of the “dual purposes” of the Federal Act is “protecting

the privacy of [covered] communications”. Gelbard v. United

States, 408 U.S. 41, 48 (1972) (quoting S. Rep. No. 1097, 90th

Cong., 2d Sess., 66 (1968)); see also United States v. Cianfrani,

573 F.2d 835, 855 (3d Cir. 1978) (“protection of privacy was an

overriding congressional concern” in enacting Federal Act). It

does so by proscribing not only unauthorized interception, §

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2511(1)(a), but also the intentional use and disclosure of illegal

interceptions, § 2511(c) and (d). The purpose of the use and

disclosure proscriptions is to reinforce the interception

proscription by “denying the wrongdoer the fruits of his conduct”,

Fultz, 942 F.2d at 401, and by eliminating the demand for those

fruits by third parties. Boehner, 191 F.3d at 469-70.

[P]rotection of the privacy of communications
is vital to our society. We depend upon the
free interchange of ideas and information.
And we are dedicated to the proposition that
each individual should be free from
unwarranted intrusion into his private
affairs. Both these interests are threatened
by modern techniques of electronic
surveillance, however, since it is now
possible to record surreptitiously the most
intimate conversations and to preserve them
for later disclosure. Only by governing
strictly both authorization [of interception]
and disclosure of intercepted communications
did Congress believe that such weighty
interests could be protected adequately.

Cianfrani, 573 F.2d at 856.

The privacy interests protected by the Wiretap Acts are of

constitutional dimension. See Harper & Row Publishers, Inc. v.

Nation Enters., 471 U.S. 539, 559 (1985) (although “essential

thrust of the First Amendment is to prohibit improper restraints on

the voluntary public expression of ideas”, there is “a concomitant

freedom not to speak publicly, one which serves the same ultimate

end as freedom of speech in its affirmative aspect” (emphasis in

original)); Katz v. United States, 389 U.S. 347, 352-53 (1967)

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(Fourth Amendment protects privacy of telephone conversation from

governmental intrusion by electronic surveillance).

And, the privacy interests sought to be protected by the

Federal Act have been held to be “sufficiently weighty to justify

some limitations in certain circumstances on the general right of

access to court proceedings”. Cianfrani, 573 F.2d at 856-57

(ordering pretrial hearings closed to public to extent reasonably

necessary to protect against disclosure of unlawfully intercepted

communications). See also In re Grand Jury, 111 F.3d 1066, 1074-75

(3d Cir. 1997) (privacy interests protected by Federal Act confer

standing on wiretapping victims to quash subpoena duces tecum

served on interceptor, who was a witness in grand jury

investigation in which one of wiretapping victims was target).

In short, the United States and Texas have a substantial

interest in protecting the confidentiality of private wire, oral,

and electronic communications.

b.

And, that substantial interest is unrelated to the suppression

of free expression. The use and disclosure proscriptions are

directed only at the means by which information is acquired. They

apply only if the targeted actor knows, or has reason to know, of

the illegal means of acquisition. And, they do not prohibit use

and disclosure of the information contained in illegal

interceptions if such information is obtained from another source.

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Indeed, protection of communications’ confidentiality encourages,

rather than suppresses, free expression, because the proscriptions

against interception, use, and disclosure offer assurance to

communicating parties that they can speak freely.

c.

To satisfy the requirement that the incidental restriction on

First Amendment freedom is no greater than essential to furtherance

of the governmental interest, “a regulation need not be the least

speech-restrictive means of advancing the Government’s interests.

Rather, the requirement of narrow tailoring is satisfied so long as

the regulation promotes a substantial government interest that

would be achieved less effectively absent the regulation”. Turner,

512 U.S. at 662 (internal quotation marks and citations omitted).

“Narrow tailoring in this context requires ... that the means

chosen do not burden substantially more speech than is necessary to

further the government’s legitimate interests”. Id. (internal

quotation marks and citation omitted).

The use and disclosure proscriptions do not burden

substantially more speech than is necessary to further governmental

interests in protecting the privacy of communications. Those

interests would be achieved less effectively in the absence of such

proscriptions, because the invasion of privacy that occurs with

interception does not then end, but continues anew and spreads with

each disclosure or other use of the interception.

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 Prohibiting interception alone is not sufficient to protect

the privacy of communications. Without the use and disclosure

proscriptions, government’s efforts to prohibit interception would

be far less effective, because a person who illegally intercepts a

conversation and wishes to disclose it to the public can do so, at

no risk to himself, by simply anonymously providing the contents of

the communication — by use of a tape or otherwise — to third

parties, such as the media, who have an interest in disclosing, or

otherwise using, those contents (as in Bartnicki). Moreover, far

greater damage to the interests sought to be protected results if,

and when, such contents are paraded before the public through use

and disclosure by non-interceptors, including the media.

See Boehner, 191 F.3d at 468, 470.

In sum, as applied to the facts in this case, including

defendants’ knowing or having reason to know the interceptions were

illegal (to include their participation concerning the

interceptions and their possible “procures” or “obtains”

violations), the use and disclosure provisions of the Federal and

Texas Acts satisfy intermediate scrutiny, because: they further

substantial governmental interests in protecting the

confidentiality of private communications; those interests are

unrelated to the suppression of free expression, but instead

encourage it; and the incidental burdens on free expression are no

greater than is essential to the furtherance of those interests,

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which would be achieved far less effectively in the absence of the

proscriptions.

E.

We reject defendants’ alternative contention that the summary

judgment should be affirmed because the Federal and Texas Acts are

unconstitutionally vague and overbroad.

1.

The use and disclosure provisions give adequate notice of the

conduct they prohibit, and are “not so vague that men of common

intelligence must necessarily guess at [their] meaning”. Broadrick

v. Oklahoma, 413 U.S. 601, 607 (1973) (internal quotation marks and

citation omitted). As Riggs admitted in his deposition, there was

nothing in the amended legislation that was vague or ambiguous;

instead, Watler simply “missed the new legislation”. Accordingly,

if defendants misunderstood their legal obligations, it was because

they and their attorney were unaware of the Acts’ terms, not

because they were vague. Defendants’ contention that the

distinction between “use” and “disclose” is unclear carries very

little weight; each is subject to the same proscriptions and

exceptions, and triggers the same penalties.

2.

The Acts are not unconstitutionally overbroad, because they do

not sanction a substantial amount of constitutionally protected

speech. The use and disclosure proscriptions do not prohibit such

80
conduct for information obtained by means other than illegal

interceptions. And, the scienter requirements ameliorate the

possibility that the prohibitions will result in chilling a

substantial amount of protected speech.

F.

As noted, under the statutory exclusionary rule, § 2515,

contents of illegally intercepted communications, as well as

evidence derived therefrom, are not admissible in “any trial” if

disclosure would violate the Federal Act. The Peavys contend the

district court erred, in conjunction with the cross motions for

summary judgment, by denying their motion to suppress the contents

of the interceptions and evidence derived therefrom, and by

allowing defendants to use such evidence to attack the Peavys’

character and defend against their state law claims, as well as to

support their (defendants’) affirmative defenses.

In the light of our disposition of the other issues, we need

not address this issue. The suppression motion ruling was only for

summary judgment purposes. The district court has had no occasion

to consider admissibility vel non of such evidence for trial.

III.

For the foregoing reasons, we AFFIRM the summary judgment

insofar as it (1) dismissed the Peavys’ claim for damages, under

the Federal Act, for defendants’ “procuring” the Harmans to make

the interceptions, and (2) held, for contexts other than for their

81
television broadcasts, that, in violation of the Federal and Texas

Acts, defendants “used” and “disclosed” the contents of the

intercepted communications; REVERSE the summary judgment insofar as

it (1) applied strict scrutiny and (2) held that the First

Amendment precludes, under the Federal and Texas Acts, holding

defendants civilly liable for “use” and “disclosure”; VACATE the

summary judgment insofar as it (1) held that, under the Federal

Act, defendants had not “procured” the Harmans to make the

interceptions (this being a separate issue from the correct

dismissal of the procurement action for damages), (2) dismissed the

Peavys’ claim, under the Texas Act, for so “obtaining” the Harmans,

(3) dismissed the Peavys’ claim, under Texas law, for civil

conspiracy, and (4) held that, in violation of the Federal and

Texas Acts, defendants, in their television broadcasts, “disclosed”

the contents of the interceptions; and REMAND for further

proceedings consistent with this opinion.

AFFIRMED in part; REVERSED in part;

VACATED in part; and REMANDED

82