dissenting:
“Hard cases make bad law,” is a cliche. Phrases become cliches through much repetition. Much repetition sometimes results from the inherent truth in the phrase much repeated. I fear that by not making the hard choice, the court today once again proves that hard cases still make bad law.
A statute of the United States makes it a felony for anyone to “intentionally inter-cepte ] any wire, oral, or electronic communication....” 18 U.S.C. § 2511(l)(a) (1994).1 Further subsections *481of the same act render it felonious to “intentionally diselose[ ] ... to any other person the contents of any wire, oral, or electronic communication, knowing or having reason to know that the information was obtained through the interception of’ such communication; or to “intentionally use[] the contents” of any such intercepted communication. 18 U.S.C. § 2511(l)(c)-(d) (1994). On the undisputed record before us, Alice and John Martin committed at least two and probably three of the felonies created by this Act of Congress. Knowing of these felonies, a Member of the Congress of the United States, the elected representative of his people, the sworn, servant of the law, dealt with the felons, received from them their felo-niously obtained communications, and converted it to his own use. He obtained these communications not for the purpose of disclosing the felonies or assisting in the enforcement of law, but solely for the purpose of using the contents of'the communications in the pursuit of the politics of personal destruction. To compound the wrong, this was .not just any congressman, but the co-chair of the House Ethics Committee. In other words, a public official charged with the oversight of the ethics of his colleagues willfully dealt with felons and knowingly received unlawfully obtained evidence on the chance that he might be able to use something contained therein to embarrass one of the colleagues whose ethics he was charged with policing. Protecting such an official in such an act cannot be an easy thing to do. Nonetheless, it is, I think, that hard task that the Constitution compels us to undertake.
The first element of the dispute between the parties, and perhaps the decisive one, is the level of scrutiny applicable to a constitutional review of the statutes. McDermott contends, and' I agree, that this case is controlled by a line of Supreme Court cases dealing with various gradations of the question: Under what circumstances may state officials constitutionally punish publication of information?2 As I read those cases, the answer is that the state may do so, if at all, only when the regulation survives a test of strict scrutiny — it must “further a state interest of the highest order.” Smith v. Daily Mail Publ’g Co., 443 U.S. 97, 103, 99 S.Ct. 2667, 61 L.Ed.2d 399 (1979).
The line of relevant Supreme Court cases begins with Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 95 S.Ct. 1029, 43 L.Ed.2d 328 (1975). In Cox Broadcasting, the Supreme Court reviewed a judgment in favor of the family of a rape-murder victim against a broadcast corporation which had published the name of the victim in violation of a Georgia statute, Ga. Code AnN. § 26-9901 (1972), which made it a misdemeanor to publish or broadcast the name or identity of a rape victim. Although the Georgia courts vacillated between reliance on the statute and common law tort theories “ ‘for the invasion of the ... right of privacy, or for the tort of public disclosure,’ ” in the end the Georgia Supreme Court did pass on the constitutionality of the statute and sustained it as a “ ‘legitimate limitation on the right of freedom of expression contained in the First Amendment.’ ” 420 U.S. at 474, 475, 95 S.Ct. 1029 (quoting Cox Broadcasting Corp. v. Cohn, 231 Ga. 60, 200 S.E.2d 127 (1973)). The high court, noting that the broadcasting company had obtained the published information from public records, declared itself “reluctant to embark on a *482course that would make public records generally available to the media but forbid their publication if offensive to the sensibilities of the supposed reasonable man.” Id. at 496, 95 S.Ct. 1029. Then, in an opinion narrowed to the issue most squarely before it, the Court held that “[a]t the very least, the First and Fourteenth Amendments will not allow exposing the press to liability for truthfully publishing information released to the public in official court records.” Id. Cox Broadcasting thus left open the question of the state’s ability to impose liability for publishing information not released to the public in official court records.
Two years after Cox Broadcasting, in Oklahoma Publishing Co. v. District Court, 430 U.S. 308, 97 S.Ct. 1045, 51 L.Ed.2d 355 (1977), the Supreme Court reached the same result as to information not released in public records, but otherwise publicly available. Several reporters, including those employed by the petitioner company, had been present in the courtroom during the hearing of an eleven-year-old boy charged with second degree murder. The district court of Oklahoma County enjoined members of the news media from “ ‘publishing, broadcasting, or disseminating, in any manner, the name or picture of [a] minor child’ ” in coverage of pending juvenile court proceedings. Id. at 308, 97 S.Ct. 1045 (quoting pretrial order). Citing Cox Broadcasting, as well as Nebraska Press Ass’n v. Stuart, 427 U.S. 539, 96 S.Ct. 2791, 49 L.Ed.2d 683 (1976), as compelling its result, the Supreme Court held that “the First and Fourteenth Amendments will not permit a state court to prohibit the publication of widely disseminated information obtained at court proceedings which were in fact opened to the public.” Id. at 310, 97 S.Ct. 1045. The respondent had attempted to distinguish Cox Broadcasting on the basis that a state statute provided that juvenile hearings would be closed unless the court specifically opened them to the public, and that the record did not reflect a specific opening in the instant case. The Supreme Court found that this made no difference, but held that the critical fact was that the information published, that is “[t]he name and picture of the juvenile” were “ ‘publicly revealed in connection with the prosecution of the crime[.]’ ” Id. at 311, 97 S.Ct. 1045 (quoting Cox Broadcasting, 420 U.S. at 471, 95 S.Ct. 1029). While Oklahoma Publishing, like Cox Broadcasting, is still not factually identical to the instant case, it moves one step further toward compelling the result sought by McDermott.
Smith v. Daily Mail Publishing Co., 443 U.S. 97, 99 S.Ct. 2667, 61 L.Ed.2d 399 (1979), goes yet another step. That case involved the publication of the identity of a juvenile offender obtained by reporters lawfully monitoring a police scanner. The reporters were indicted under a statute, W.Va.Code § 49-7-3 (1976), making it unlawful to knowingly publish the name of a juvenile involved in a juvenile court proceeding. The United States Supreme Court upheld the West Virginia Supreme Court decision prohibiting prosecution of the indictment on constitutional grounds. The Supreme Court expressly declared its holding a narrow one. Proclaiming that there was “no issue ... of unlawful press access to confidential judicial proceedings, [and] no issue ... of privacy or prejudicial pretrial publicity,” id. at 105, 99 S.Ct. 2667 (citation omitted), it declared that “[a]t issue is simply the power of a state to punish the truthful publication of an alleged juvenile delinquent’s name lawfully obtained by a newspaper.” Id. at 105-06, 99 S.Ct. 2667 (footnote omitted). In Cox Broadcasting and Oklahoma Publishing, the information sought to be suppressed was released by the court itself, either in public record or by opening access to the public. In Daily Mail, the information came from a scanner, but it was lawfully obtained. The holding was narrow one, but it moved narrowly toward encompassing the protection sought by McDermott today.
*483Closer still comes Florida Star v. B.J.F., 491 U.S. 524, 109 S.Ct. 2603, 105 L.Ed.2d 443 (1989). In Florida Star, a woman referred to by her initials, BJF, had been robbed and sexually assaulted by an unknown assailant. The investigating law enforcement department prepared and placed in its pressroom an incident report identifying her by her full name. Employees of the Florida Star newspaper obtained the report and published an account of the sexual assault, including her name, in violation of a Florida statute which “ma[de] it unlawful to ‘print, publish, or broadcast ... in any instrument of mass communication’ the name of the victim of a sexual offense.” Florida Star, 491 U.S. at 526, 109 S.Ct. 2603 (quoting Fla.Stat. § 794.03 (1987)) (footnote omitted). BJF sued civilly, relying on the statute for a standard of negligence per se. She obtained a judgment which stood through the state appellate process. The newspaper appealed to the United States Supreme Court arguing that imposing civil liability on the newspaper, pursuant to the statute, violated the First Amendment. The Supreme Court agreed.
The Supreme Court in Florida Star recognized that it had articulated in Daily Mail a principle derived from a synthesis of its prior cases: “ ‘[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.’ ” 491 U.S. at 533, 109 S.Ct. 2603 (quoting Daily Mail, 443 U.S. at 103, 99 S.Ct. 2667). Thus, the Supreme Court made it plain that the fact of constitutional significance in Cox Broadcasting, Oklahoma Publishing and Daily Mail was not that the publishers in those cases had obtained the information at issue from public record or public hearings, or publicly available communications from official sources, but that they had lawfully obtained the information. Even in Florida Star, the Court expressly limited the scope of its ruling, holding: “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.... ” 491 U.S. at 541, 109 S.Ct. 2603. Because I believe this holding of the Supreme Court instructs our decision on the facts before us, I would hold that 18 U.S.C. § 2511 cannot constitutionally be applied to penalize McDermott’s publication of the contents of the unlawfully intercepted communication.
I concede at the outset that there are distinctions between our case and the cases in the Cox Broadcasting-Florida Star line: However, I think none of the distinctions permits a difference in result. First, I think it is of no constitutional significance that the holding in Florida Star expressly covered the situation “where a newspaper publishes truthful information,” while McDermott is not a newspaper. I have never believed that the First Amendment protection of “the freedom ... of the press,” afforded greater protection to professional publishers than it does tó anyone who owns a typewriter, or for that matter than its protection of “the freedom of speech” affords those who communicate without writing it down. Indeed, it is safe to say that when the Framers of the Constitution used the expression “the press, they did not envision the large, corporate newspaper and television establishments of our modern world,” but rather, “refer[red]. to the many independent printers who circulated small newspapers or published writers’ pamphlets for a fee.” McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 360, 115 S.Ct. 1511, 131 L.Ed.2d 426 (1995) (Thomas, J., concurring). Therefore, as the court holds today that the state can punish the release by McDer-mott based on the manner in which his source obtained that information, in a later day the state can burden the publishers of newspapers and the broadcasters of television and radio on the same basis.
*484I can envision felonious eavesdroppers like the Martins in this case obtaining not marginally embarrassing information about congressmen but information of critical public importance about, for example, some public official’s accepting a bribe or committing perjury or obstruction of justice. Even if those hypothetical felons dumped information of that critical nature not into the hands of politicians but of a newspaper publisher or a television news network, the public could never know of the wrongdoing, because under today’s ruling, those news media would be barred from further publication of that information. Therefore, I cannot think that the identity of the communicator can be a distinction of difference.
Judge Randolph’s repeated attempt to distinguish between “newspapers” on the one hand and “sources” (apparently meaning all those who are not newspapers but might communicate information to a newspaper) on the other is without substance or force. His attempt to extend to newspapers some First Amendment protection not available to all those others who might communicate by stating that “sources do not publish; the newspapers do,” creates a hierarchy of First Amendment protection for a publishing aristocracy nowhere suggested in the Amendment, its history, or the cases applying it. As I noted above, the Framers’ use of the expression “the press” does not connote a protected entity, but rather a protected activity. See McIntyre, 514 U.S. at 360, 115 S.Ct. 1511 (Thomas, J., concurring). The First Amendment protections of speech and press extend to those who speak and those who write, whether they be press barons, members of Congress, or other sources.
Judge Randolph’s further attempt to pass off what McDermott did as unprotected conduct rather than protected speech is likewise unconvincing. Contrary to Judge Randolph’s essential position, it was not McDermott’s “conduct in delivering the tape that gives rise to his potential liability under § 2511(l)(c).” Maj. Op. at 467. What made his conduct punishable under the statute was the information communicated on the tapes. He could have provided the two newspapers with all the tapes in Washington on a given day and incurred no liability but for the speech contained on the tapes. Indeed, the majority’s hypothetical concerning the Martins breaking into Boehner’s office stealing a tape and giving it to McDermott illustrates the weakness of the majority’s position, not its strength. Had the Martins broken into the office and stolen such a tape and given it to McDermott, he would have received stolen property without regard to its contents. Had he then copied its contents to other tapes and passed those copies off to The New York Times and The Washington Post, he would have incurred no liability under 18 U.S.C. § 2511, nor would he have aggravated his crime of receiving stolen property. What he is being punished for here is not conduct dependent upon the nature or origin of the tapes; it is speech dependent upon the nature of the contents.
Next, and of somewhat greater persuasion, is the distinction that the information was unlawfully obtained somewhere in the chain. That is to say, the Florida Star Court limited its holding to truthful information, lawfully obtained. Indeed, the Court in Florida Star expressly reserved “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.” Florida Star, 491 U.S. at 535 n. 8, 109 S.Ct. 2603 (additional emphasis added) (noting further that “[t]his issue was raised but not definitively resolved in New York Times Co. v. United States, 403 U.S. 713, 91 S.Ct. 2140, 29 L.Ed.2d 822 (1971), and reserved in Landmark Communications, 435 U.S. at 837, 98 S.Ct. 1535.”). That is the question. The second half of that question is the one we must answer today. Where the punished publisher of information has obtained the information in question in a manner lawful in itself but *485from a source who has obtained it unlawfully, may the government punish the ensuing publication of that information based on the defect in a chain? I say not. This separates me from the majority.
As the Court held in Florida Star, “punishment may lawfully be imposed, if at all” upon the publisher of truthful information, lawfully obtained, “only when narrowly tailored to a state interest of the highest order....” 491 U.S. at 541, 109 S.Ct. 2603. The Supreme Court has elsewhere described “the ‘now settled approach’ that state regulations ‘imposing severe burdens on speech ... [must] be narrowly tailored to serve a compelling state interest.’ ” Buckley v. American Constitutional Law Found., 525 U.S. 182, 119 S.Ct. 636, 642 n. 12, 142 L.Ed.2d 599 (1999) (internal quotations and punctuation omitted) (quoting Thomas, J., concurring).
Otherwise put, the statutes before us burden speech based on its content — that is they forbid its publication because it contains information obtained at an earlier time in an illicit fashion. It is established Supreme Court law that when the state “establishes a financial disincentive to ... publish works with a particular content ... ‘the State must show that its regulation is necessary to serve a compelling State interest and is narrowly drawn to achieve that end.’” Simon & Schuster, Inc. v. New York State Crime Victims Board, 502 U.S. 105, 118, 112 S.Ct. 501, 116 L.Ed.2d 476 (1991) (quoting Arkansas Writers’ Project, Inc. v. Ragland, 481 U.S. 221, 231, 107 S.Ct. 1722, 95 L.Ed.2d 209 (1987)). I will not dispute that the protection of the privacy of electronic communication is a compelling state interest. I will concede for purposes of the present ease that punishment of an unlawful interceptor, both criminally and by the allowance of civil damages, may well be sufficiently narrowly tailored to survive even the strict scrutiny required here. I do not, however, see that either the United States or the State of Florida has established that an undifferentiated burden on the speech of anyone who acquires the information contained in the communication from the unlawful interceptor is necessary to accomplish the state’s legitimate goal or narrowly tailored to serve that end. I do not see how we can draw a line today that would punish McDermott and not hold liable for sanctions every newspaper, every radio station, every broadcasting network that obtained the same information from McDermott’s releases and published it again. Not only is this not narrow tailoring, this is not tailoring of any sort. As I recognized above, we are not squarely within the language of Florida Star. I think we must answer the question reserved in that decision, and I think we must answer it against the burdening of publication.
Although appellant offers other distinctions from the reasoning of Florida Star, I find none compelling, or worth more than passing mention. It is true, as appellant and the United States as intervenor argue, that the Supreme Court has held that the First Amendment permits the government to enjoin or punish the release of information by persons who have voluntarily entered into positions requiring them to treat that information with confidentiality. See, e.g., Snepp v. United States, 444 U.S. 507, 100 S.Ct. 763, 62 L.Ed.2d 704 (1980) (upholding constructive trust against all profits of the publication of truthful information of public importance lawfully obtained through petitioner’s employment at the CIA, where he had contracted to keep the same confidential); United States v. Aguilar, 515 U.S. 593, 115 S.Ct. 2357, 132 L.Ed.2d 520 (1995) (allowing punishment of a federal judge who disclosed sensitive information concerning statutorily authorized wiretap); Seattle Times Co. v. Rhinehart, 467 U.S. 20, 104 S.Ct. 2199, 81 L.Ed.2d 17 (1984) (upholding restrictions on disclosure of otherwise confidential information obtained by court order in civil discovery). Appellant and intervenor argue that McDermott can be punished for his disclosure because of his having, in *486their view, obtained the information at issue in his capacity as a member of the House Ethics Committee. I cannot agree. McDermott did not in fact obtain the information in his official capacity. The felons who communicated it to him were not looking for him to use his official ethical capacity but rather his unofficial political capacity to disseminate their unlawfully obtained information. It may well be the case that had he obtained the same information, for example, by Committee subpoena, he could not have lawfully disclosed it and his disclosure would not be constitutionally protected. Indeed, that is perhaps more likely than not. But those are not the facts before us.
Conclusion
For the reasons set forth above, I would uphold the judgment of the district court and I respectfully dissent from the decision of the court to the contrary.
. Though the litigation before us concerns also Florida statutes, see Fla. Stat. Ann. §§ 934.03(l)(c) & 934.10 (West 1996), these statutes are patterned after the federal statute and do not differ from it in any constitutionally significant way. Therefore, for simplicity I will direct the discussion in my dissent to the federal statute, intending the reasoning to apply as to both.
. While I refer throughout this opinion to punishment, for First Amendment purposes I consider the term to include civil damage provisions. As the Supreme Court noted in New York Times Co. v. Sullivan, "What a State may not constitutionally bring about by means of a criminal statute is likewise beyond the reach of its civil law of libel. The fear of damage awards ... may be markedly more inhibiting than the fear of prosecution under a criminal statute.” 376 U.S. 254, 277, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964) (footnote and citation omitted). Similarly, the discussions of prohibition of publishing included in some of the cases which follow apply to post-publication punishment as well as to prior restraint.