Boehner, John A. v. McDermott, James A.

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued April 30, 1999 Decided September 24, 1999

No. 98-7156

John A. Boehner,
Appellant

v.

James A. McDermott,
Appellee

United States of America,
Intervenor for Appellant

Appeal from the United States District Court
for the District of Columbia
(98cv00594)

Michael A. Carvin argued the cause for appellant. With
him on the briefs was R. Ted Cruz.

 Scott R. McIntosh, Attorney, U.S. Department of Justice,
argued the cause for intervenor United States. With him on
the briefs were Frank W. Hunger, Assistant Attorney Gener-
al at the time the briefs were filed, David W. Ogden, Acting
Assistant Attorney General, William B. Schultz, Deputy As-
sistant Attorney General, and Douglas N. Letter, Litigation
Counsel.

Frank Cicero, Jr., argued the cause for appellee. With him
on the brief were Christopher Landau and Daryl Joseffer.

Theodore J. Boutrous, Jr., argued the cause for amici
curiae The Washington Post Company, et al. With him on
the brief were Seth M.M. Stodder, Mary Ann Werner, and
Jane Kirtley.

Before: Ginsburg, Sentelle, and Randolph, Circuit
Judges.

Opinion for the Court filed by Circuit Judge Randolph.

Opinion filed by Circuit Judge Ginsburg concurring in the
judgment and in Parts I, II.B, and II.D (except the first and
last paragraphs) of the opinion for the Court.

Dissenting opinion filed by Circuit Judge Sentelle.

Randolph, Circuit Judge: "Congress shall make no law ...
abridging the freedom of speech, or of the press." U.S.
Const. amend. I. A federal statute prohibits private parties
from intentionally intercepting wire, oral and electronic com-
munications. The law also forbids any person from disclosing
the contents of such a communication, if the person knew it
was illegally intercepted. Is it part of "the freedom of
speech" for an individual to give a newspaper the tape
recording of a cellular telephone call he received from the
criminals who conducted the illegal eavesdropping? That is
the ultimate question in this appeal from the district court's
dismissal of a complaint brought against the individual who
transferred the tape to the New York Times and other
newspapers. The district court ruled that, as applied in this
case, the federal prohibition on disclosure violated the First
Amendment because the defendant "legally obtained" the

tape recording, and because the tape contained conversations
relating to matters of "public concern." The United States has
intervened to defend the constitutionality of the statute.

I

John A. Boehner, a Republican member of the House of
Representatives, representing the Eighth District of Ohio,
brought this action against James A. McDermott, a Demo-
cratic member of the House representing the Seventh Dis-
trict of Washington. The following events are the focus of
the complaint.1

On December 21, 1996, Representative Boehner participat-
ed in a conference call with members of the Republican Party
leadership, including Representatives Dick Armey and Tom
DeLay, and then-Speaker of the House Newt Gingrich. At
the time of the conversation, Gingrich was the subject of an
investigation by the House Committee on Standards of Offi-
cial Conduct--the House Ethics Committee. See In the
Matter of Representative Newt Gingrich, H.R. Rep. No. 105-1
(1997); see also H.R. 31, 105th Cong. (1997) (adopting the
report). Boehner was chairman of the House Republican
Conference. The participants discussed strategy regarding
an expected Ethics Subcommittee announcement of Ging-
rich's agreement to accept a reprimand and to pay a fine in
exchange for the committee's promise not to hold a hearing.

Boehner was driving through northern Florida when he
joined the conference call. He spoke from a cellular tele-
phone in his car. John and Alice Martin, who lived in
Florida, used a radio scanner to eavesdrop on the conversa-
tion. They tape recorded the call and later met with Demo-
cratic Representative Karen Thurman of Florida to discuss
both the tape and the possibility of their receiving immunity
for their illegal interception of the call.

__________
1 Because this matter comes before the court as an appeal of the
district court's grant of a motion to dismiss, we take as true the
allegations made by Boehner in his complaint. See Edmondson &
Gallagher v. Alban Towers Tenants Ass'n, 48 F.3d 1260, 1263 (D.C.
Cir. 1995).

 At Thurman's suggestion, the Martins personally delivered
the tape to Representative McDermott on January 8, 1997.
McDermott was then the ranking Democratic member of the
House Ethics Committee. The Martins' cover letter ex-
plained that the tape contained "a conference call heard over
a scanner," and closed with this statement: "We understand
that we will be granted immunity."

The next day, January 9, 1997, McDermott gave copies of
the tape to the New York Times, the Atlanta Journal-
Constitution, and Roll Call. Because the tape revealed Ging-
rich engaging in conduct that might have violated the terms
of the agreement, it had great news value for the three
newspapers, and each ran a story on the party leaders'
conversation. The New York Times published its story on
the front page of its January 10, 1997 edition and included a
verbatim transcript of a portion of the conversation.

After the newspaper accounts appeared, the Martins pub-
licly confessed their role in recording the conversation and
admitted giving a copy of their tape to McDermott. On
January 13, 1997, McDermott provided his fellow Ethics
Committee members with the Martins' tape (or a copy of it)
and resigned from the committee. The committee chairman,
Representative Nancy Johnson, forwarded the tape to the
Justice Department. The government prosecuted the Mar-
tins for violating 18 U.S.C. ss 2511(1)(a) and 2511(4)(b)(ii).

Under s 2511(1)(a), anyone who "intentionally intercepts,
endeavors to intercept, or procures any other person to
intercept or endeavor to intercept, any wire, oral, or electron-
ic communication" is guilty of an offense punishable by fine or
imprisonment, or both. 18 U.S.C. ss 2511(1)(a), 2511(4).
The Martins entered guilty pleas on April 23, 1997, and were
each fined $500.

One year later Boehner brought this suit against McDer-
mott, invoking the civil liability provisions of the Electronic
Communications Privacy Act. See 18 U.S.C. s 2520. His
complaint charged McDermott with violating 18 U.S.C.
s 2511(1)(c):

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

* * *

(c) intentionally discloses, or endeavors to disclose, to
any other person the contents of any wire, oral, or
electronic communication, knowing or having reason to
know that the information was obtained through the
interception of a wire, oral, or electronic communica-
tion in violation of this subsection;

* * *

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

Claiming that McDermott had illegally disclosed the contents
of the conference call, knowing it to have been illegally
intercepted, Boehner sought statutory damages of $10,000
pursuant to 18 U.S.C. s 2520(c)(2)(B).2

McDermott moved to dismiss the complaint, arguing that
s 2511(1)(c), as applied to him, violated the free speech clause
of the First Amendment. He claimed, and the district court
agreed, that the First Amendment "prohibits the punishment
under any of the statutes cited in the Complaint for the
disclosure of truthful and lawfully obtained information on a

__________
2 In a separate count, Boehner brought a claim under Fla. Stat.
Ann. s 934.03(1)(c)--which, in relevant respects, is identical to 18
U.S.C. s 2511(1)(c). Because our analysis of the two statutes will
be the same with respect to McDermott's First Amendment claim,
whenever this opinion refers to the federal statute, we intend to
include the state statute as well.

In his motion to dismiss, McDermott also argued that the Florida
statute could not apply to his conduct because his alleged actions
occurred outside the state's borders. Because the district court
dismissed the complaint on other grounds, it did not address this
argument. See Boehner v. McDermott, Civ. No. 98-594 (TFH),
1998 WL 436897, at *3 n.2 (D.D.C. July 28, 1998).

matter of substantial public concern." Motion to Dismiss at
1.

II

A

In mounting his First Amendment defense, McDermott
obviously thinks he engaged in speech, speech for which he
would suffer liability in damages if s 2511(1)(c) were applied
to him. What speech? A simple question, but crucial. Too
bad McDermott devotes only one sentence of his brief to the
answer: "Because the disclosure of information is unquestion-
ably speech, these provisions [of federal and state law] impose
a naked prohibition on speech." Brief for Appellee at 11.
But those who expose private activity to public gaze are not
necessarily engaging in speech, let alone "the freedom of
speech." Otherwise, one might as well say the Martins were
exercising their right of free speech when they personally
handed over the product of their crime to McDermott; or
that they would have been engaging in free speech if they had
surreptitiously dropped the tape on his doorstep, or mailed it
to him anonymously in a plain wrapper. Not even McDer-
mott goes so far. See, e.g., Oral Arg. Tr. at 41, 43.3 If the
Martins were not exercising their right of free speech, as
McDermott seems to concede, it is difficult to see why
McDermott was exercising his freedom of speech when he
gave copies of their tape to the newspapers.

At one point in his brief, McDermott asserts that "[t]his is
core political speech, and lies at the very heart of the First
Amendment." Brief for Appellee at 45. His assertion, how-
ever, deals with the contents of the tape. The tape does

__________
3 At oral argument, McDermott conceded that, on the facts
alleged in the complaint, his delivery of the tapes to the newspapers
brought him within s 2511(1)(c)'s prohibition against anyone who
"intentionally discloses, or endeavors to disclose" the contents of an
illegally intercepted communication. Oral Arg. Tr. at 38-43.
Whether in this case the actual disclosure occurred only after the
newspaper took possession of the tape and played it is therefore of
no moment.

indeed contain speech about political matters. But the
speech is not McDermott's and s 2511(1)(c) does not render
him liable for anything anyone said on the recording. As to
McDermott's speech, it is safe to assume that he said some-
thing when he arranged for delivery of the tapes to the
newspapers. The New York Times in fact attributed several
statements to him:4 a "Democratic Congressman hostile to
Mr. Gingrich ... insisted that he not be identified further";
the "Congressman said the tape had been given to him on
Wednesday by a couple who said they were from northern
Florida"; the Congressman "quoted them as saying it had
been recorded off a radio scanner ... about 9:45 A.M. on
Dec. 21." In making these remarks McDermott was un-
doubtedly engaging in speech. But neither these statements,
nor any other statements he may have made to the newspa-
pers in connection with his delivery of the tape, are the basis
of the complaint. McDermott's liability under s 2511(1)(c)
rests on the truth of two allegations: that he "caused a copy
of the tape" to be given to the newspapers; and that he "did
so intentionally and with knowledge and reason to know that
the recorded phone conversation had been illegally intercept-
ed (as the cover letter on its face disclosed)." Complaint p 20.
Although the circumstances of McDermott's transactions with
the newspapers, including who said what to whom, may
become evidence at trial, it is his conduct in delivering the
tape that gives rise to his potential liability under
s 2511(1)(c). McDermott's behavior in turning over the tapes
doubtless conveyed a message, expressing something about
him. All behavior does. But not all behavior comes within
the First Amendment.

"[E]ven on the assumption that there was [some] communi-
cative element in" McDermott's conduct, the Supreme Court
has held that "when 'speech' and 'nonspeech' elements are
combined in the same course of conduct, a sufficiently impor-
tant governmental interest in regulating the nonspeech ele-

__________
4 We assume McDermott was the unnamed Congressman men-
tioned in the Times article. See Edmondson & Gallagher, 48 F.3d
at 1263.

ment can justify incidental limitations on First Amendment
freedoms." United States v. O'Brien, 391 U.S. 367, 376
(1968). The O'Brien framework is the proper mode of First
Amendment analysis in this case. McDermott's challenge is
only to the statute as it applies to his delivery of the tape to
newspapers. Whether a different analysis would govern if,
for instance, McDermott violated s 2511(1)(c) by reading a
transcript of the tape in a news conference, is therefore a
question not presented here. Nor should we be concerned
with whether s 2511(1)(c) would be constitutional as applied
to the newspapers who published the initial stories about the
illegally-intercepted conference call. The focus must be on
McDermott's activity and on his activity alone. See Hoffman
Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 495
(1982); Parker v. Levy, 417 U.S. 733, 756 (1974); United
States v. Raines, 362 U.S. 17, 21-22 (1960); contrast Broad-
rick v. Oklahoma, 413 U.S. 601, 615 (1973).

B

In its modern iteration, the O'Brien analysis applies to
statutes containing generally applicable, content-neutral pro-
hibitions on conduct that create incidental burdens on speech.
See Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 642, 662
(1994); Ward v. Rock Against Racism, 491 U.S. 781, 791
(1989); Clark v. Community for Creative Non-Violence, 468
U.S. 288, 293 (1984). Section 2511(1)(c) is a statute fitting
that description. It is one of several provisions constituting
"a comprehensive statutory scheme dedicated to preserving
personal privacy by sharply limiting the circumstances under
which surveillance may be undertaken and its fruits dis-
closed." Lam Lek Chong v. DEA, 929 F.2d 729, 733 (D.C.
Cir. 1991). It prohibits the disclosure of all illegally inter-
cepted communications, without regard to the substance of
the communication or the identity of the person who does the
disclosing. It reveals no governmental interest in distin-
guishing between types of speech based on content. It
neither favors nor disfavors any particular viewpoint. To the
extent that the particular type of conduct s 2511(1)(c) ad-
dresses--"disclosure"--may entail constitutionally protected

speech, the statute regulates it without reference to content.
See Lam Lek Chong, 929 F.2d at 733; see also Turner
Broad., 512 U.S. at 642-43; R.A.V. v. St. Paul, 505 U.S. 377,
386 (1992); Time Warner Entertainment Co. v. FCC, 93 F.3d
957, 969 (D.C. Cir. 1996) (per curiam).

The oft-repeated test laid down in O'Brien is as follows:

[A] government regulation is sufficiently justified if it is
within the constitutional power of the Government; if it
furthers an important or substantial governmental inter-
est; 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 inter-
est.

391 U.S. at 377.

Here, the "substantial governmental interest" "unrelated to
the suppression of free expression" is evident. Section
2511(1)(c), rather than impinging on speech, as McDermott
supposes, promotes the freedom of speech. Eavesdroppers
destroy the privacy of conversations. The greater the threat
of intrusion, the greater the inhibition on candid exchanges.
Interception itself is damaging enough. But the damage to
free speech is all the more severe when illegally intercepted
communications may be distributed with impunity.5 This is
why s 2511 does not merely prohibit the unauthorized inter-
ception of wire, oral and electronic communications. It is
why the federal statute also forbids the use and disclosure of
the illegally intercepted communication.6 It is why, in certain

__________
5 See Gelbard v. United States, 408 U.S. 41, 52 (1972): "to compel
the testimony of these witnesses compounds the statutorily pro-
scribed invasion of their privacy by adding to the injury of the
interception the insult of compelled disclosure. And, of course,
Title III makes illegal not only unauthorized interceptions, but also
the disclosure and use of information obtained through such inter-
ceptions. 18 U.S.C. s 2511(1); see 18 U.S.C. s 2520."

6 In addition to Florida, forty-four other states and the District of
Columbia prohibit not only the interception of electronic communi`

---------

Note 6--Continued
cations, but also the disclosure of those communications by persons
not acting under color of law. Most of these statutes mirror the
wording of 18 U.S.C. s 2511. See Ala. Code ss 13A-11-31,
13A-11-35 (1994); Alaska Stat. ss 42.20.300 to 42.20.330 (Michie
1989 & Supp. 1995); Ariz. Rev. Stat. Ann. ss 13-3005, 13-3006
(West 1989) (limiting criminal disclosure liability to telecommunica-
tions employees and those acting in concert with them); Cal. Penal
Code ss 631, 632 (West 1999); Colo. Rev. Stat. s 18-9-303 (1986 &
Supp. 1995); Conn. Gen. Stat. ss 53a-187, 53a-188, 53a-189, 54-41r
(1994) (allowing civil recovery from any unauthorized discloser, but
limiting criminal penalties to telecommunications employees and
those acting in concert with them); Del. Code Ann. tit. 11, s 1336
(1996); D.C. Code Ann. ss 23-542, 23-554 (1996); Ga. Code Ann.
ss 16-11-62, 16-11-66.1 (1994); Haw. Rev. Stat. s 803-42 (1995);
Idaho Code s 18-6702 (1996); 720 Ill. Comp. Stat. Ann. 5/14-2
(1993); Ind. Code Ann. s 35-45-2-4 (West 1994) (limiting criminal
disclosure liability to telecommunications employees); Iowa Code
ss 808B.2, 808B.8 (1994), as amended by Act of Apr. 28, 1999, 1999
Iowa Legis. Serv. S.F. 309 (West); Kan. Stat. Ann. s 21-4002
(1996); Ky. Rev. Stat. Ann. ss 526.020, 526.060 (Michie 1998); La.
Rev. Stat. Ann. ss 15:1303, 15:1312 (West 1992); Me. Rev. Stat.
Ann. tit. 15, ss 710, 711 (West 1998); Md. Code Ann., Cts. & Jud.
Proc. s 10-402 (1998); Mass. Gen. Laws Ann. ch. 272, s 99(c) (West
1990); Mich. Comp. Laws Ann. ss 750.539c, 750.539e, 750.539h (West
1991 & Supp. 1995); Minn. Stat. Ann. ss 626A.02, 626A.13 (West
1998); Mo. Rev. Stat. ss 542.402, 542.418 (1996); Mont. Code Ann.
s 45-8-10 213 (1997); Neb. Rev. Stat. ss 86-702, 86-707.02 (1995);
Nev. Rev. Stat. ss 200.620, 200.630, 200.650, 200.690 (1994); N.H.
Rev. Stat. Ann. s 570-A:2 (1995); N.J. Stat. Ann. ss 2A-156A-3,
2A-156A-24 (West 1985 & Supp. 1999); N.M. Stat. Ann.
ss 30-12-14 1, 30-12-11 (Michie 1994); N.Y. Penal Law ss 250.05,
250.25 (McKinney 1989 & Supp. 1995); N.C. Stat. Ann. s 15A-287
(1996); N.D. Cent. Code s 12.1-15-02 (1994); Ohio Rev. Code Ann.
ss 2933.52, 2933.65 (Banks-Baldwin 1998) (prohibiting interception
and use, authorizing civil damages for interception, disclosure, and
use); Okla. Stat. Ann. tit. 13, ss 176.2 to 176.5 (West 1994); Or.
Rev. Stat. ss 165.540, 165.543 (1998); 18 Pa. Cons. Stat. Ann.
ss 5703, 5725 (West 1999); R.I. Gen. Laws s 11-35-21 (1998);
Tenn. Code Ann. ss 39-13-601 to 39-13-603 (1994); Tex. Penal
Code Ann. ss 16.02, 16.05 (West 1994); Utah Code Ann.
ss 77-23a-4, 77-23a-11 (1994); Va. Code Ann. ss 19.2-62, 19.2-69
(Michie 1990); W.Va. Code ss 62-1D-3, 62-1D-12 (1990); Wis.

circumstances, the law also punishes disclosure even if the
interception was itself legal, as when a law enforcement
official has conducted a wiretap pursuant to a court order.
See 18 U.S.C. s 2511(1)(e).

In all of this it is well to remember that although the
"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,
which serves the same ultimate end as freedom of speech in
its affirmative aspect." Harper & Row, Publishers, Inc. v.
Nation Enters., 471 U.S. 539, 559 (1985) (quoting with ap-
proval Estate of Hemingway v. Random House, Inc., 244
N.E.2d 250, 255 (N.Y. 1968)); see also Halperin v. Kissinger,
606 F.2d 1192, 1199 (D.C. Cir. 1979), aff'd, 452 U.S. 713 (1981)
(per curiam). The freedom not to speak publicly, to speak
only privately, is violated whenever an illegally intercepted
conversation is revealed, and it is violated even if the person
who does the revealing is not the person who did the inter-
cepting.7 For his part, McDermott correctly concedes that
the Martins could have been punished not only for intercept-
ing the conference call, but also for giving the tape to him.
See Oral Arg. Tr. at 41, 43, 53. But as we have indicated, he
offers no good explanation why, if he had a First Amendment
right to disclose the call, the Martins did not. Comparing the
Martins' conduct with McDermott's, one might rank the

__________

Stat. Ann. s 968.31 (West 1985 & Supp. 1999); Wyo. Stat.
ss 7-3-602, 7-3-609 (1987); see also Russell G. Donaldson, Annota-
tion, Construction and application of state statutes authorizing
civil cause of action by person whose wire or oral communication
is intercepted, disclosed, or used in violation of statutes, 33
A.L.R.4th 506 (1998). Arkansas does not separately prohibit the
disclosure of intercepted communications, but its laws achieve a
similar effect by making it a crime "to record or possess a recording
of such communication." Ark. Code Ann. s 5-60-120(a) (Michie
1994).

7 The link between the Martins and McDermott was direct.
Whether someone further down the chain would have a defense
similar to that suggested by Nardone v. United States, 308 U.S.
338, 341 (1939)--that the taint of illegality was sufficiently dissipat-
ed--is something we do not decide.

Martins as more culpable. Yet in terms of damage to the
privacy of conversations and to the freedom of speech,
McDermott's alleged actions had a far more devastating
impact.

There are other substantial government interests underly-
ing s 2511(1)(c), interests best illustrated through a hypothet-
ical. Suppose Boehner had tape recorded his conference
call.8 Suppose as well that the Martins later break into
Boehner's office, steal the tape and give it to McDermott, who
then acts exactly as he is alleged to have acted here: he
accepts the tape from the Martins and delivers it to the press.
In the hypothetical, there is no doubt that if McDermott knew
how the Martins acquired the tape, he could be prosecuted
for receiving stolen property. See D.C. Code Ann. s 22-3832.
With respect to McDermott, it is hard to see any practical
constitutional distinction between the hypothetical and the
facts alleged here. In the one case the Martins steal the
tape; in the other, they illegally "seize" the conversation.
See Katz v. United States, 389 U.S. 347 (1967). In both
instances, McDermott knows of the illegality. The contents
of both tapes are identical; what McDermott does with the
tape is the same; and in both cases McDermott knows the
Martins' are giving him something they acquired illegally.
Receiving stolen property is punished in order to remove the
incentive to steal, to dry up the market for stolen goods. See
Wayne R. LaFave & Austin W. Scott, Jr., Criminal Law s 93,
at 692 (1972). For a similar reason--that is, "to dry up the
market"--states have made distribution and possession of
child pornography criminal offenses. Osborne v. Ohio, 495
U.S. 103, 110 (1990); New York v. Ferber, 458 U.S. 747, 760
(1982). And for the same reason Congress has forbidden the
disclosure of the contents of illegally intercepted communica-
tions. The district court was quite right in thinking that
without s 2511(1)(c)'s prohibition on disclosure, the govern-
ment would have "no means to prevent the disclosure of
private information, because criminals like the Martins can

__________
8 Federal law does not prohibit someone who is a party to a
conversation from taping it. See 18 U.S.C. s 2511(2)(d).

literally launder illegally intercepted information" and there
would be "almost no force to deter exposure of any intercept-
ed secret." Boehner v. McDermott, Civ. No. 98-594 (TFH),
1998 WL 436897, at *4 (D.D.C. July 28, 1998).

What we have just written also explains why whatever
incidental restriction on speech s 2511(1)(c) imposes, it is "no
greater than is essential to the furtherance of that interest"--
the final consideration in the O'Brien formulation. 391 U.S.
at 377. Unless disclosure is prohibited, there will be an
incentive for illegal interceptions; and unless disclosure is
prohibited, the damage caused by an illegal interception will
be compounded. It is not enough to prohibit disclosure only
by those who conduct the unlawful eavesdropping. One
would not expect them to reveal publicly the contents of the
communication; if they did so they would risk incriminating
themselves. It was therefore "essential" for Congress to
impose upon third parties, that is, upon those not responsible
for the interception, a duty of nondisclosure.

C

As against the foregoing analysis, McDermott maintains
that he "lawfully obtained" the tape recording from the
Martins because he committed no offense in accepting it; that
the tape contained truthful information of public concern; and
that the First Amendment therefore prohibits holding him
liable for handing the tape (or copies of it) over to the
newspapers.9 He believes the following "limited First

__________
9 It appears that McDermott, or someone acting for him, made
copies of the tape. No one disputes that the Martins gave but one
copy of the tape to McDermott. The New York Times, in its article
of January 10, 1997, reported that it had received a tape recording
of the conference call from a "Democratic Congressman" who did
not wish to be identified. The complaint alleges that McDermott
also gave audiotapes to two other newspapers. After the Martins
held a press conference on January 13, 1997, McDermott delivered
still another copy of the tape to the House Ethics Committee, which
turned the tape over to the Justice Department. McDermott may
also have made a transcript of the call. According to the New York
Times, in its article of January 10, 1997, "a transcript of [the

Amendment principle" controls: "If a newspaper lawfully
obtains truthful information about a matter of public signifi-
cance, then [the government] may not constitutionally punish
publication of the information, absent a need to further a
state interest of the highest order." Florida Star v. B.J.F.,
491 U.S. 524, 533 (1989), quoting Smith v. Daily Mail Publ'g
Co., 443 U.S. 97, 103 (1979).10

The district court, believing that Florida Star left it no
other choice, reluctantly adopted McDermott's line of reason-
ing. Reluctantly because the court thought these decisions
had forced it into an "illogical" interpretation of the First
Amendment. Boehner, 1998 WL 436897, at *4. McDermott's
theory was, the court thought, "a slippery one, as it not only
defends, but even encourages, the circumnavigation of wire-
tap statutes, which are designed to prevent the disclosure of
private conversations." Id. at *3. By accepting this theory,
the district court had rendered the government powerless "to
prevent disclosure of private information, because criminals
like the Martins can literally launder illegally intercepted
information." Id.

There are many reasons for disagreeing with McDermott
and with the district court about the significance of Florida
Star as applied to this case. But first the facts of Florida
Star. A Florida statute made it unlawful to publish the name
of a rape victim "in any instrument of mass communication."
491 U.S. at 526 n.1. The Sheriff's Department in Duval
County, Florida, mistakenly included a rape victim's name in

__________
conference call] was made available by" the same unidentified
Congressman who supplied the tape.

10 The quotation does not fit precisely. The case before us is a
civil suit for damages, not a criminal prosecution to impose punish-
ment. Boehner makes nothing of this distinction and neither will
we. See Cohen v. Cowles Media Co., 501 U.S. 663, 670 (1991).
Also, the complaint alleges that McDermott disclosed the conversa-
tion, not that he published it. Publication of course will always
amount to a disclosure, but not every disclosure may amount to the
sort of publication the Supreme Court had in mind.

its publicly available police blotter. A Florida Star reporter
took down the victim's name, and the newspaper published it.
The victim sued the Sheriff's Department and the newspaper
for violating the statute. Before trial, the Sheriff's Depart-
ment settled with the plaintiff. A jury awarded damages
against the Florida Star and a state appellate court affirmed.

The Supreme Court sustained the newspaper's First
Amendment attack on the statute. The Court believed the
newspaper had "lawfully obtained" the rape victim's name
because the government--in the form of the Sheriff's Depart-
ment--had made this information available. See id. at 534-
36. The Court then explained why there was no "need" for
the state to forbid the mass media from publishing the
victim's name. The government had provided the informa-
tion to the media and thus could more effectively have
"policed itself" to prevent dissemination of the information.
Id. at 538. The statute contained no scienter requirement;
and the press was entitled to assume the government "consid-
ered dissemination lawful," id. at 539, because the information
stemmed from a "government news release," id. at 538. And
last, the statute was underinclusive, prohibiting publication
only in "instruments of mass communication," while not pro-
hibiting revelation of the victim's identity through other
means. Id. at 540.

A comparison of Florida Star with this case reveals far
more significant differences than similarities. And it is criti-
cal to recognize each of those differences. The Supreme
Court did not intend to declare a universal First Amendment
principle in Florida Star. The several phrases McDermott
has fastened upon are tempered, not only by other language
in the opinion, but also by the context in which they were
written. Throughout, the Court stresses that it meant its
decision to be narrow. The state of the law in this area is
"somewhat uncharted," id. at 531 n.5; the "future may bring
scenarios which prudence counsels our not resolving anticipa-
torily," id. at 532; the Court is following the practice of
resolving "this conflict only as it arose in a discrete factual
context," id. at 531; "[o]ur holding today is limited," id. at
541.

 Let us now compare the statute in Florida Star with
s 2511(1)(c). One could say, as McDermott seems to, that
both provisions are alike in that both prohibit the "disclosure"
of "information." But when we dig more deeply many critical
differences appear. To ignore them would be to convert
Florida Star from a narrow decision into an expansive one.
Consider first exactly what the statutes forbid. The Florida
statute prohibited the act of printing, publishing or broadcast-
ing "in any instrument of mass communication." 491 U.S. at
526 n.1 (quoting Fla. Stat. s 794.03 (1987)). The federal law
is not, however, limited to those means of disclosure and it is
not aimed at the press. Anyone who discloses, or endeavors
to disclose, illegally intercepted communications knowing of
the illegality violates s 2511(1)(c). The objectives of the laws
are different too. The Florida statute sought to protect the
privacy of rape victims. See 491 U.S. at 537. The federal law
seeks to protect the privacy of communications. See, e.g.,
Gelbard v. United States, 408 U.S. 41, 51-52 (1972). In that
respect, the federal law--unlike the Florida statute--ad-
vances First Amendment interests for reasons already men-
tioned. See supra pp. 9-12. The Florida statute dealt with
information in the government's possession; release of the
information was therefore in the government's control. See
491 U.S. at 534-36, 538-39. The federal law deals with
communications between private persons, the content of
which will not be known to the government, unless it has
complied with the rigorous procedures needed to obtain a
court order allowing electronic surveillance for law enforce-
ment purposes. See 18 U.S.C. s 2518; see also id.
ss 2511(2)(b)-(f), 2515-2517, 2519. The state law in Florida
Star (and in Daily Mail) "defined the content of publications
that would trigger liability." Cohen v. Cowles Media Co., 501
U.S. 663, 670-71 (1991). Here, the federal prohibition on
disclosure is not dependent on the content of the communica-
tion. And of greatest importance, s 2511(1)(c) prohibits dis-
closure of the communication only if the original interception
was itself illegal and only if the person charged with unlawful-
ly disclosing its contents knew of the illegality. See 18 U.S.C.
s 2511(1)(c). In contrast, the Florida statute had no scienter

requirement, see Florida Star, 491 U.S. at 539, and the
government lawfully acquired the information--the victim's
identity--while investigating a crime.

This last distinction must be underscored because the
Supreme Court in Florida Star attached such great signifi-
cance to it. After citing cases for the proposition that when
"information is entrusted to the government, a less drastic
means than punishing truthful publication almost always ex-
ists for guarding against the dissemination of private facts,"
the Court dropped a footnote:

The Daily Mail principle does not settle the issue wheth-
er, in cases where information has been acquired unlaw-
fully by a newspaper or by a source, government may
ever punish not only the unlawful acquisition, but the
ensuing publication as well. This issue was raised but
not definitively resolved in New York Times Co. v. Unit-
ed States, 403 U.S. 713 (1971), and reserved in Land-
mark Communications, 435 U.S. [829,] 837 [(1978)]. We
have no occasion to address it here.

491 U.S. at 535 n.8.

To understand this footnote correctly one must remember
that in the newspaper business, sources provide information,
but newspapers, not sources, are the publishers. Suppose a
"source" breaks into an office, steals documents, gives them
to a newspaper and the newspaper, knowing the documents
were stolen, publishes them in violation of a state or federal
law. We read footnote 8 to mean that the "Daily Mail
principle" would not determine if the newspaper had a First
Amendment right to publish the stolen documents. What
takes this hypothetical case out of Daily Mail and Florida
Star? The fact that the documents are the product of a
crime, committed by a "source." McDermott thinks he
stands in the shoes of the "newspaper" in Florida Star. He
treats a newspaper's "publication" as the equivalent of his
disclosure. Given his press analogy, the Martins played the
role of McDermott's "source." It follows from footnote 8 that
the "Daily Mail principle" and the decision in Florida Star
do not "settle" this case.

 McDermott's effort to explain away the Florida Star foot-
note is thoroughly unconvincing. He proposes that footnote 8
"simply reserved the question whether a person who discloses
unlawfully acquired information is subject to punishment only
for the unlawful acquisition or for both the unlawful acquisi-
tion and the disclosure." Brief for Appellee at 31. In other
words, all the Court left open is the question whether the
Martins could have been punished not only for intercepting
the call, in violation of s 2511(1)(a), but also for giving the
tape to McDermott, in violation of s 2511(1)(c). This cannot
be correct. For one thing, the Court did not have before it a
case in which the published information--the rape victim's
name--had been "acquired unlawfully ... by a source"; the
Sheriff's Department was the newspaper's "source" and it
acquired the victim's name both lawfully and with her con-
sent. Also, given the facts of Florida Star, and particularly
in light of the Court's resolve to confine the opinion to the
"discrete factual context" of the case, 491 U.S. at 531, the
Court necessarily did not decide the question before us. For
another thing, McDermott's reading of the footnote could
make sense if and only if a "source" first illegally obtained
information and then did the "ensuing publication." In the
context of the footnote, this is farfetched indeed. Again, the
newspapers' sources do not publish; the newspapers do. The
point of the footnote is that regardless whether the illegality
is committed by a newspaper's reporter or by a source, if the
newspaper publishes the illegally obtained information, the
First Amendment may not shield it from punishment. The
Court came close to holding as much in Branzburg v. Hayes,
408 U.S. 665, 691-92 (1972): no matter how great "the
interest in securing the news," 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 reprehensible conduct forbid-
den to other persons."

Furthermore, if McDermott were right about the footnote,
there is no explaining the Court's citation to the "Pentagon
Papers" case--New York Times Co. v. United States, 403
U.S. 713 (1971). At the time of that decision, everyone knew

that a "source" (later identified as Daniel Ellsberg, a re-
searcher at the RAND Corporation on contract with the
Department of Defense) had illegally obtained copies of clas-
sified Defense Department documents. See generally David
Rudenstine, The Day the Presses Stopped: A History of the
Pentagon Papers Case 33-65 (1996).11 The issue before the
Court was whether enjoining the New York Times and the
Washington Post from publishing the material amounted to a
prior restraint in violation of the First Amendment. As the
Florida Star footnote stated, the Court left unresolved the
question whether the Post and the Times could be punished
for later publishing the documents Ellsberg had illegally
acquired.12 In short, McDermott's reading of footnote 8 in

__________
11 The United States later prosecuted Ellsberg for violating the
Federal Espionage Act and for theft of government property. See
generally Rudenstine, supra, at 341-43. The district judge barred
the prosecution after the government revealed that the "White
House plumbers" had burglarized Ellsberg's psychiatrists' office
and intercepted telephone conversations, in violation of the Consti-
tution. See id.; see also Russo v. Byrne, 409 U.S. 1219 (1972)
(Douglas, Circuit J.) (issuing a stay against Ellsberg's prosecution);
United States v. Russo & Ellsberg, Crim. No. 9373 (WNB) (C.D.
Cal. May 11, 1973) (dismissing the prosecution because of govern-
ment misconduct). Ellsberg and others later sought civil damages
from the interceptors under the same provision Boehner now
invokes against McDermott. See, e.g., Ellsberg v. Mitchell, 807
F.2d 204 (D.C. Cir. 1986); Smith v. Nixon, 807 F.2d 197 (D.C. Cir.
1986); Halperin v. Kissinger, 807 F.2d 180 (D.C. Cir. 1986).

12 Justice White, joined by Justice Stewart, put it this way in his
concurring opinion:

The Criminal Code contains numerous provisions potentially
relevant to these cases.... If any of the material here at
issue is of [the kind described in 18 U.S.C. s 797 or s 798], the
newspapers are presumably now on full notice of the position of
the United States and must face the consequences if they
publish. I would have no difficulty in sustaining convictions
under these sections on facts that would not justify the inter-
vention of equity and the imposition of a prior restraint.

403 U.S. at 735-37 (White, J., concurring) (footnotes omitted); see
also id. at 730 (Stewart, J., joined by White, J., concurring) (noting

Florida Star is flatly contradicted by the Court's citation to
the Pentagon Papers case, by the Court's distinction between
a source and a newspaper, and by the Court's expressed
intent to confine its Florida Star opinion strictly to the facts
of the case. Given footnote 8, McDermott is not correct in
arguing that the First Amendment precludes punishing an
individual for disclosing information illegally transmitted to
him, so long as the individual violated no law in receiving the
information. Brief for Appellee at 30.13

__________
that "several [criminal laws] are of very colorable relevance to the
apparent circumstances in these cases" and acknowledging the
possibility of future criminal or civil proceedings); id. at 744-45
(Marshall, J., concurring) (noting that "equity will not enjoin the
commission of a crime" and identifying two statutes under which "a
good-faith prosecution could have been instituted"); id. at 752
(Burger, C.J., dissenting) (expressly agreeing with Justice White's
comments concerning "penal sanctions"); id. at 759 (Blackmun, J.,
dissenting) (expressing "substantial accord" with Justice White's
comments concerning criminal sanctions). In dissent, Justice Har-
lan, joined by Chief Justice Burger and Justice Blackmun, listed
among "questions [which] should have been faced"--"Whether the
newspapers are entitled to retain and use the documents notwith-
standing the seemingly uncontested facts that the documents, or the
originals of which they are duplicates, were purloined from the
Government's possession and that the newspapers received them
with knowledge that they had been feloniously acquired." Id. at
753-54 (Harlan, J., dissenting) (citing Liberty Lobby, Inc. v. Pear-
son, 390 F.2d 489 (D.C. Cir. 1967, amended 1968) (holding that
plaintiffs were not entitled to a preliminary injunction)).

13 McDermott also relies on the following passage in Florida Star:

[U]nder Florida law, police reports which reveal the identity of
the victim of a sexual offense are not among the matters of
"public record" which the public, by law, is entitled to in-
spect.... But the fact that state officials are not required to
disclose such reports does not make it unlawful for a newspa-
per to receive them when furnished by the government. Nor
does the fact that the Department apparently failed to fulfill its
obligation under [the Florida statute] not to "cause or allow to
be ... published" the name of a sexual offense victim make the
newspaper's ensuing receipt of this information unlawful. Even

McDermott also misreads Landmark Communications,
Inc. v. Virginia, 435 U.S. 829, 837 (1978), which the Florida
Star footnote also cited. In that case a newspaper was
indicted for publishing an article about a pending investiga-
tion of a state judge.14 McDermott is right in describing
what Landmark did not decide. The Court wrote: "We are
not here concerned with the possible applicability of the
statute to one who secures the information by illegal means
and thereafter divulges it." Id. But McDermott is wrong in
describing what Landmark did decide. The Court did not, as
he contends, determine that a newspaper has a First Amend-
ment right to publish illegally acquired information. The
record in Landmark contained no evidence regarding who
supplied the newspaper with the information or how they
obtained it. See Landmark Communications, Inc. v. Com-
monwealth, 233 S.E.2d 120, 123 n.4 (Va. 1977) ("The record is
silent, however, concerning the manner in which Landmark
secured the information."). The Court therefore decided only
that "the Commonwealth's interests advanced by the imposi-
tion of criminal sanctions [were] insufficient to justify the
actual and potential encroachments on freedom of speech and

__________
assuming the Constitution permitted a State to proscribe re-
ceipt of information, Florida has not taken this step.

491 U.S. at 536. It appears to us that the Court intended to confine
these remarks to information "furnished by the government." Id.
The quoted passage follows the Court's point, made in the previous
paragraph, that "depriving protection to those who rely on the
government's implied representations of the lawfulness of dissemi-
nation, would force upon the media the onerous obligation of sifting
through government press releases, reports, and pronouncements
to prune out material arguably unlawful for publication." Id.

14 The Virginia Constitution commanded that proceedings before
the state Judicial Inquiry and Review Commission "shall be confi-
dential." Va. Const. art. 6, s 10. The statutes implementing this
provision made it a misdemeanor for "any person" to "divulge
information" about those proceedings, Va. Code ss 2.1-37.11,
2.1-37.12 (1973), which Virginia's highest court construed to include
newspaper publication. See Landmark, 435 U.S. at 837 n.9.

of the press which follow therefrom." Landmark, 435 U.S. at
838.15

Footnote 8 of Florida Star, and the marked contrast
between s 2511(1)(c) and the Florida rape victim statute, are
enough to indicate that Florida Star cannot control this case.
But this discussion should not end without mention of an
additional basis for rejecting the district court's analysis.
The Supreme Court said in Florida Star that its application
of the Daily Mail principle rested on three considerations.
Not one of them is present here.

The Court first pointed out that "when information is
entrusted to the government, a less drastic means than
punishing truthful publication almost always exists for guard-
ing against the dissemination of private facts." 491 U.S. at
534. In this case, the content of the conference call was not
information "entrusted to the government." It was instead--
in the Supreme Court's words--"sensitive information" in
"private hands" and, therefore, if the government forbids "its
nonconsensual acquisition," as it has in s 2511(1)(a), "the
publication of any information so acquired" is "outside the
Daily Mail principle." Id. "The right to speak and publish
does not," in other words, "carry with it the unrestrained
right to gather information." Zemel v. Rusk, 381 U.S. 1, 17
(1965).

"A second consideration undergirding the Daily Mail prin-
ciple is 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 the
State seeks to act." Id. at 535.16 That consideration too is

__________
15 The Court flatly rejected the argument that "truthful reporting
about public officials in connection with their public duties is always
insulated from the imposition of criminal sanctions by the First
Amendment." Id.

16 The Florida Star Court described the Daily Mail formulation
as a "synthesis of prior cases involving attempts to punish truthful
publication." 491 U.S. at 533. In two of those cases--Oklahoma
Publishing Co. v. Oklahoma County District Court, 430 U.S. 308
(1977), and Cox Broadcasting Corp. v. Cohn, 420 U.S. 469 (1975)--

absent here. The conference call was not "already publicly
available" when McDermott gave the tape to the newspapers.
Apart from the participants (and those they informed), the
contents of the call were then known only to a select few,
including the Martins and McDermott. And they--the Mar-
tins and McDermott--gained their knowledge of the call only
through illegal transactions.

"And" is emphasized in the last sentence because through-
out this litigation, McDermott has attempted to portray him-
self as an innocent. Again and again he insists that he
"lawfully obtained" the tape recording from the Martins. By
this he means that he broke no law in taking possession of the
tape. But this is hardly certain. The Martins violated
s 2511 not once, but twice--first when they intercepted the
call and second when they disclosed it to McDermott. By
accepting the tape from the Martins, McDermott participated
in their illegal conduct. That transaction may have involved a
quid pro quo. When they transmitted the tape to McDer-
mott, the Martins expressed their understanding that they
would be receiving immunity for their illegal conduct. The
inference is that someone promised this in return for the
tape. Who? The obvious candidate is McDermott, or some-
one acting in concert with him. One need not go so far as to
say that the Martins and McDermott entered into a conspira-
cy, in violation of 18 U.S.C. s 371. It is enough to point out,
as Boehner does, that in receiving the tape, McDermott took
part in an illegal transaction. See Reply Brief for Appellant
at 11. If he did not thereby break the law, he was at least
skirting the edge.

The Florida Star Court's third reason for applying the
"Daily Mail principle" was "the 'timidity and self-censorship'

__________
the published information had, like the information in Florida Star,
been placed in the public domain by the government. In Daily
Mail, the newspapers had "obtained [the information] from wit-
nesses, the police, and a local prosecutor," 491 U.S. at 531, and the
state sought to punish the printing of the information after it had
already been broadcast on the radio. See Daily Mail, 443 U.S. at
104-05.

which may result from allowing the media to be punished for
publishing" "information released, without qualification, by
the government." 491 U.S. at 535-36. McDermott is not the
"Media"; the government did not release this information;
and it would not be out of "timidity [or] self-censorship" for
someone to alert the authorities after being handed evidence
of a crime by those who perpetrated the offense. It would
instead be an act worthy of a responsible citizen. See 18
U.S.C. s 3 (accessory after the fact); 18 U.S.C. s 4 (mispri-
sion of a felony).

In short, the illegal activity of the Martins, of which
McDermott was well aware when he took possession of the
tape, takes McDermott's actions "outside of the Daily Mail
principle" and the Florida Star line of cases. 491 U.S. at
534.17

Beyond those cases, one can find no firm First Amendment
right to disclose information simply because the information
was, in the first instance, legally acquired by the person who
revealed it. For instance, a grand juror who lawfully obtains
knowledge of the testimony of witnesses may not disclose that
testimony to anyone else. See Fed. R. Crim. P. 6(e); see In re
Motions of Dow Jones & Co., 142 F.3d 496, 499-500 (D.C. Cir.
1998). There appears to be no constitutional difficulty with
laws prohibiting the disclosure of lawfully obtained trade
secrets or with laws protecting proprietary interests in per-
formances. See Zacchini v. Scripps-Howard Broad. Co., 433
U.S. 562, 577-79 & n.13 (1977). Congress may provide
remedies for the unauthorized publication of copyrighted
material even if the publisher broke no law in receiving the

__________
17 Butterworth v. Smith, 494 U.S. 624 (1990), on which McDer-
mott also relies, held that under the First Amendment the govern-
ment could not prohibit a grand jury witness from publicly disclos-
ing his own grand jury testimony. The Court did not suggest that
grand jurors, who are under a duty of confidentiality, or someone
who steals grand jury transcripts, could not be punished for disclos-
ing such testimony. While Butterworth might apply if the law
prohibited a person not only from tape recording his own conversa-
tion, but also from disclosing the contents of his conversation, the
opinion had nothing to say about McDermott's situation.

material. See Harper & Row, 471 U.S. at 555-60. In
discovery, litigants lawfully acquire private information from
their opponents. This does not mean the First Amendment
precludes a court from issuing a protective order to prevent
disclosure of that information. See Seattle Times Co. v.
Rhinehart, 467 U.S. 20, 31, 36-37 (1984). Courts may enforce
a reporter's promise not to publish the lawfully obtained
name of a confidential informant. See Cohen, 501 U.S. at
669-72; see also Snepp v. United States, 444 U.S. 507 (1980)
(per curiam) (enforcing CIA agent's employment agreement
to submit his writings for prepublication review). And a law
enforcement official who conducts a wiretap or a judge who
authorizes the interception has no First Amendment right to
disclose the contents of the intercepted call or the existence of
the electronic surveillance. United States v. Aguilar, 515
U.S. 593, 605 (1995).18

One might try to distinguish these cases on the basis that
in each there was some pre-existing duty not to reveal the

__________
18 This recital hardly exhausts the category of laws prohibiting
disclosure of information without regard to whether the recipient
violated the law in obtaining the information. For instance, lawyers
may suffer suspension or disbarment for revealing client confi-
dences. Those who rent or sell video tapes may be held liable for
disclosing "personally identifiable information concerning" their cus-
tomers. 18 U.S.C. s 2710. With some exceptions, employees of
state motor vehicle departments may not disclose information about
individuals who have received drivers' licenses or vehicle registra-
tions. 18 U.S.C. s 2721. Under 18 U.S.C. s 794, it is an offense,
punishable by death or imprisonment, for anyone intending to
injure the United States to disclose to a foreign nation documents
relating to our national defense. Tax return preparers are subject
to civil and criminal penalties for the unauthorized disclosure of tax
return information. See 26 U.S.C. ss 6713, 7216; see also 26
U.S.C. s 6103 (imposing duty of confidentiality on IRS employees);
Tax Analysts v. IRS, 117 F.3d 607, 613 (D.C. Cir. 1997) ("The IRS
and the office of Chief Counsel are the gatekeepers of federal tax
information. Through s 6103, Congress charged these two agen-
cies and their employees with the duty of protecting return informa-
tion from disclosure to others within the federal government, and to
the public at large.").

information lawfully received. McDermott makes the at-
tempt. In each of these cases, he says, "a person or entity
obtains confidential information pursuant to a concomitant
duty of nondisclosure, and the First Amendment does not
preclude the enforcement of that duty." Brief for Appellee at
20. But this is no distinction at all. McDermott too obtained
the tape under a duty of nondisclosure. In his case the duty
arose from a statute--s 2511(1)(c). The same was true in
Harper & Row, the only difference being that the duty there
stemmed from the copyright laws. It is true that Congres-
sional authority to pass copyright laws is provided specifically
in the Constitution (Article I, s 8) and that copyright itself
serves as an "engine of free expression." Harper & Row, 471
U.S. at 558. But much the same may be said of s 2511: the
Commerce Clause of the Constitution gave Congress the
power to regulate interstate communications, and s 2511,
including s 2511(1)(c), promotes free expression.

D

Our dissenting colleague finds it difficult to draw any lines
between McDermott's disclosure of the tape and a newspa-
per's publication of the contents of the illegally acquired
conversation. One line, clearly drawn in this case, is the line
between conduct and speech. When a newspaper publishes,
it engages in speech. In each of the cases our colleague
discusses--in Cox Broadcasting, in Oklahoma Publishing, in
Daily Mail, and in Florida Star19--there was no doubt the
defendant engaged in speech for which it was held liable. As
explained earlier, here there is doubt, very real doubt.20 It is

__________
19 We emphasize again that in each of these cases, the information
the defendant published was in the public domain, and the govern-
ment was responsible for putting it there. Not so here: the
conference call was not in the public domain and there was no
government involvement in making it public.

20 It is good that our dissenting colleague believes the press has
no greater First Amendment rights than anyone else. The Su-
preme Court agrees with him. So do we. See New York Times Co.
v. Sullivan, 376 U.S. 254, 265-66 (1964); First Nat'l Bank of Boston

McDermott's conduct in handing over the tape to the newspa-
pers, not anything he wrote or said, for which Boehner seeks
recovery under s 2511. And because we are dealing with
conduct, McDermott's case falls squarely within the Supreme
Court's O'Brien analysis. Whether the statute would be
constitutional as applied to a newspaper who published ex-
cerpts from the tape--who, in other words, engaged in
speech--thus raises issues not before us.

Our dissenting colleague also thinks the statute "burdens
speech based on its content--that is [s 2511(1)(c) forbids] its
publication because it contains information obtained at an
earlier time in an illicit fashion." Dissenting op. at 8. One
might as well say that prosecuting a dealer in stolen books
burdens his speech on the basis of the contents of the books.
That of course would be silly, but as far as content discrimi-
nation is concerned, there is no relevant difference here. We
have already explained why McDermott's liability under
s 2511(1)(c) does not turn on who said what during the
conference call. McDermott would have violated the law if he
had handed over the tape of an illegally intercepted communi-
cation between a husband and wife, or an investor and
stockbroker, or a judge and law clerk. Each such conversa-
tion has in common that someone violated federal law to
intercept it, but this relates to the method of acquisition not
the contents of the communication. In all of this, it is
important to keep McDermott's defense firmly in mind--he
claims that s 2511(1)(c) unconstitutionally burdens his speech
in this case. One cannot possibly evaluate that claim without
making the effort to identify precisely what McDermott said,
or wrote, or did to incur liability. Our dissenting colleague
has not made the effort, which may be why he has fallen into
the trap of equating the conversation on the tape with the
contents of McDermott's speech.

Our colleague cannot understand why Congress thought it
necessary to prohibit not only the interception of communica-
tions, but also their disclosure. Dissenting op. at 9. The

__________

v. Bellotti, 435 U.S. 765, 777 (1978); Davis v. Schuchat, 510 F.2d
731, 734 n.3 (D.C. Cir. 1975).

reasons are apparent. One is that prohibiting disclosure
furthers the freedom of speech, and reduces the damage
caused by unlawful eavesdropping. Another is that prohibit-
ing disclosure removes an incentive for illegal interceptions.
But in our colleague's judgment, disclosure should never be
prohibited because illegal political espionage might uncover
misdeeds that would otherwise go undetected. Dissenting op.
at 6. This is the old ends-justifies-the-means rationale.
Worse still, it is a rationale willing to sacrifice everyone's
freedom not to have their private conversations revealed to
the world, because some criminal at some time might illegally
"seize" some politician's incriminating conversation.

Finally, our colleague believes 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 the information with confi-
dentiality." Dissenting op. at 9. That describes this case
perfectly. McDermott "voluntarily" entered into just such a
position when he accepted the illicit tape from the Martins.
At that point he had a duty, if not of "confidentiality," then of
nondisclosure. The duty stemmed of course from every
citizen's responsibility to obey the law, of which s 2511(1)(c)
is a part.

* * *

For the reasons stated, we hold that s 2511(1)(c) and the
Florida statute, see supra note 2, are not unconstitutional as
applied in this case. Accordingly, the judgment of the district
court is reversed and the case is remanded.

So ordered.

 Opinion filed by Circuit Judge Ginsburg concurring in the
judgment and in Parts I, II.B, and II.D (except the first and
last paragraphs) of the opinion for the Court:

Although I agree that s 2511(1)(c)* is not unconstitutional
as applied in this case, I find it unnecessary, in order to reach
that conclusion, to address a number of the questions ad-
dressed by Judge Randolph. Specifically, I assume rather
than decide that (1) McDermott's delivery of the tape to the
newspapers constitutes speech protected by the First Amend-
ment to the Constitution of the United States--a proposition
that no party to the case disputes; and (2) the holding of
Florida Star, namely, that publication of "lawfully obtain[ed,]
truthful information about a matter of public significance ...
may not constitutionally [be] punish[ed] ... absent a need to
further a state interest of the highest order," 491 U.S. 524,
533 (1989) (quoting Smith v. Daily Mail Publ'g Co., 443 U.S.
97, 103 (1979)), applies in principle to this case. Because
McDermott did not in fact lawfully obtain the tape, however,
he may be punished under s 2511(1)(c), as he concedes, if the
statute as applied to him survives intermediate scrutiny. I
conclude it does for the reasons stated in the opinion for the
Court.

Although by its terms Florida Star does not apply to all
cases involving privately held information, see 491 U.S. at 534
("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"), we may assume, as McDermott argues, that Flori-
da Star does apply here. Therefore, there is no need to
decide whether "publication," as used in footnote 8 of that
case, must mean "publication by the media" and cannot mean
"divulged by an individual," as it does in the context of libel
law. See Op. at 17-22. Nor need we delve into the ambigui-
ties in the Court's dictum regarding privately held informa-
tion--under what circumstances? what is "sensitive informa-
tion"?--because even if Florida Star applies to McDermott's
dissemination of the privately held information contained in

__________
* My conclusions regarding s 2511(1)(c) apply as well to the
Florida statute. See Op. at 5 n.2.

the illegal wiretap, he did not lawfully acquire that informa-
tion. McDermott therefore does not satisfy an essential
element of the Florida Star test. See 491 U.S. at 536 ("The
first inquiry is whether the newspaper 'lawfully obtain[ed]
[the] information' ").

Indeed, McDermott concedes that the Martins, who violat-
ed s 2511(1)(a) in acquiring the information they passed on to
him, are not protected by the principle of Florida Star. See
Op. at 11. Nonetheless, he argues that he lawfully obtained
the tape from them because no federal statute prohibits
receiving the contents of an illegal wiretap. That does not
mean, however, that McDermott "lawfully obtain[ed]" the
information. Though the Congress has not prohibited the
receipt of information obtained by means of an illegal wiretap,
it has prohibited the intentional and knowing disclosure of the
contents of such a wiretap. Not only was the transaction in
which McDermott obtained the tape therefore illegal--albeit
only the Martins could be punished for effectuating it--but
McDermott knew the transaction was illegal at the time he
entered into it. See Op. at 4, 24. One who obtains informa-
tion in an illegal transaction, with full knowledge the transac-
tion is illegal, has not "lawfully obtain[ed]" that information in
any meaningful sense.* And the Court's decision in Florida
Star was not an exercise in empty formalism. See Op. at 15.

McDermott points nonetheless to this passage in Florida
Star:

[T]hat the [Police] Department apparently failed to fulfill
its obligation under [state law] not to "cause or allow to
be ... published" the name of a sexual offense victim
[does not] make the newspaper's ensuing receipt of this
information unlawful. Even assuming the Constitution

__________
* For example, the District of Columbia "prohibits solicitation and
pimping, but does not criminalize prostitution itself." United States
v. Jones, 909 F.2d 533, 538 (D.C. Cir. 1990). Therefore, a "John"
who has sex in exchange for money, but who did not solicit that sex,
has apparently violated no law. Only the most formal minded,
however, would describe that sex as having been lawfully obtained.

 permitted a State to proscribe receipt of information,
Florida has not taken this step.

491 U.S. at 536 (emphasis in original). The Court's reference
to a State "proscrib[ing] receipt of information" must be read
in light of Florida's decision not to prohibit all disclosures of
the name of a rape victim. See id. at 540 (noting that statute
prohibits only publication in mass media, but "does not pro-
hibit the spread by other means of the identities of victims of
sexual offenses"). Accordingly, the transaction in which the
newspaper obtained the name was not illegal per se; if the
newspaper had not later published the name, the police
department would have violated no law. By contrast, the
Congress prohibited the transaction in which McDermott
obtained the tape, without regard to whether its contents
were subsequently published as a result.

In any event, as noted in the opinion for the Court at 20-21
n.13, the remarks upon which McDermott relies are apparent-
ly confined to information furnished by the Government. The
Court recognized in Florida Star that when information is in
the hands of the Government "a less drastic means than
punishing truthful publication almost always exists for guard-
ing against the dissemination of private facts." 491 U.S. at
534. When sensitive information is in private hands, howev-
er, the same cannot be said; the Government has at once less
power to prevent nonconsensual acquisition of the information
and more need to prohibit its subsequent dissemination,
whether by the thief or by one such as McDermott who
received it from the thief. Cf. id.

In sum, nothing in Florida Star requires us to accept
McDermott's claim that he "lawfully obtain[ed]" the tape
simply because no statute prohibited his receiving it. Nor
does McDermott provide us with any reason to extend Flori-
da Star in a manner that, as the district court put it, permits
"a criminal [to] launder the stains off illegally obtained prop-
erty simply by giving it to someone else, when that other
person is aware of its origins." Boehner v. McDermott, No.
Civ. 98-594, 1998 WL 436897, at *4 (D. D.C. July 28, 1998). I
therefore conclude only that one does not "lawfully obtain[ ],"

within the intendment of that phrase in Florida Star, infor-
mation acquired in a transaction one knows at the time to be
illegal. See United States v. Riggs, 743 F. Supp. 556, 559
(N.D. Ill. 1990) (criminal defendant who "did not actually steal
the [information, but] was completely aware that it was stolen
when he received it" did not "lawfully obtain[ ]" it).

McDermott concedes, and both Boehner and the Govern-
ment agree, that if Florida Star does not require the applica-
tion of strict scrutiny in this case, then we should apply at
most intermediate scrutiny. I agree the statute passes that
test for the reasons given in the opinion for the Court at 8-13.

 Sentelle, Circuit Judge, dissenting: "Hard cases make
bad law," is a cliche. Phrases become cliches through much
repetition. Much repetition sometimes results from the in-
herent 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 intercept[ ] ... any wire, oral, or electronic
communication...." 18 U.S.C. s 2511(1)(a) (1994).1 Fur-
ther subsections of the same act render it felonious to "inten-
tionally disclose[ ] ... to any other person the contents of any
wire, oral, or electronic communication, knowing or having
reason to know that the information was obtained through the
interception of" such communication; or to "intentionally
use[ ] the contents" of any such intercepted communication.
18 U.S.C. s 2511(1)(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 Con-
gress. 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 feloniously obtained communications, and
converted it to his own use. He obtained these communica-
tions 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 some-
thing contained therein to embarrass one of the colleagues
whose ethics he was charged with policing. Protecting such

__________
1 Though the litigation before us concerns also Florida statutes,
see Fla. Stat. Ann. ss 934.03(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.

an official in such an act cannot be an easy thing to do.
Nonetheless, it is, I think, that hard task that the Constitu-
tion 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 (1979).

The line of relevant Supreme Court cases begins with Cox
Broadcasting Corp. v. Cohn, 420 U.S. 469 (1975). In Cox
Broadcasting, the Supreme Court reviewed a judgment in
favor of the family of a rape-murder victim against a broad-
cast corporation which had published the name of the victim
in violation of a Georgia statute, Ga. Code Ann. s 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.' "

__________
2 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 or 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 (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.

420 U.S. at 474, 475 (quoting Cox Broadcasting Corp. v.
Cohn, 200 S.E.2d 127 (Ga.1973)). The high court, noting that
the broadcasting company had obtained the published infor-
mation from public records, declared itself "reluctant to em-
bark on a course 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. Then, in an opinion narrowed to the issue most squarely
before it, held that "[a]t the very least, the First and Four-
teenth 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 Publish-
ing Co. v. District Court, 430 U.S. 308 (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 compa-
ny, 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 dissemi-
nating, in any manner, the name or picture of [a] minor
child' " in coverage of pending juvenile court proceedings.
Id. at 308 (quoting pretrial order). Citing Cox Broadcasting,
as well as Nebraska Press Ass'n v. Stewart, 427 U.S. 539
(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. 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 differ-
ence, 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 (quoting Cox Broadcasting, 420 U.S.
at 471). 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 McDer-
mott.

Smith v. Daily Mail Publishing Co., 443 U.S. 97 (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 s 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 constitu-
tional grounds. The Supreme Court expressly declared its
holding a narrow one. Proclaiming that there was "no issue
... of unlawful press access to confidential judicial proceed-
ings, [and] no issue ... of privacy or prejudicial pretrial
publicity," id. at 105 (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 (footnote omitted).
In Cox Broadcasting and Oklahoma Publishing, the informa-
tion 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.

Closer still comes Florida Star v. B.J.F., 491 U.S. 524
(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 (quoting Florida Stat. s 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 news-
paper 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 (quoting Daily Mail, 443
U.S. at 103). Thus, the Supreme Court made it plain that the
fact of constitutional significance in Cox Broadcasting, Okla-
homa 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 commu-
nications 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. 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. s 2511 cannot
constitutionally be applied to penalize McDermott's publica-
tion of the contents of the unlawfully intercepted communica-
tion.

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 cov-

ered 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 to 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 (1995)
(Thomas, J., concurring). Therefore, as the court holds today
that the state can punish the release by McDermott 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.

I can envision felonious eavesdroppers like the Martins in
this case obtaining not marginally embarrassing information
about congressmen but information of critical public impor-
tance 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 criti-
cal 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 commu-
nicate 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; newspapers do," creates a hierarchy of First
Amendment protection for a publishing aristocracy nowhere
suggested in the Amendment, its history, or the cases apply-
ing 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 (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 McDer-
mott did as unprotected conduct rather than protected speech
is likewise unconvincing. Contrary to Judge Randolph's es-
sential position, it was not McDermott's "conduct in deliver-
ing the tape that gives rise to his potential liability under
s 2511(1)(c)." Maj. Op. at 7. What made his conduct punish-
able 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 McDer-
mott 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. s 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 distinc-
tion 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 un-

lawfully 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
(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 (1971), and reserved in
Landmark Communications, 435 U.S. at 837."). 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 from a source who has obtained it unlawfully, may
the government punish the ensuing publication of that infor-
mation 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.
The Supreme Court has elsewhere described "the 'now-
settled approach' that state regulations 'imposing severe bur-
dens on speech ... [must] be narrowly tailored to serve a
compelling state interest." Buckley v. American Constitu-
tional Law Found., 119 S. Ct. 636, 642 n.12 (internal quota-
tions and punctuation omitted) (quoting Thomas, J., concur-
ring).

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 (1991) (quoting Arkansas Writers' Project, Inc.
v. Ragland, 481 U.S. 221, 231 (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 case 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 scruti-
ny 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 newspa-
per, 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 rea-
soning 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 (1980) (upholding constructive trust
against all profits of the publication of truthful information of
public importance lawfully obtained through petitioner's em-
ployment at the CIA, where he had contracted to keep the
same confidential); United States v. Aguilar, 515 U.S. 593
(1995) (allowing punishment of a federal judge who disclosed
sensitive information concerning statutorily authorized wire-
tap); Seattle Times Co. v. Rhinehart, 467 U.S. 20 (1984)
(upholding restrictions on disclosure of otherwise confidential
information obtained by court order in civil discovery). Ap-
pellant and intervenor argue that McDermott can be pun-
ished for his disclosure because of his having, in their view,
obtained the information at issue in his capacity as a member
of the House Ethics Committee. I cannot agree. McDer-

mott 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 judg-
ment of the district court and I respectfully dissent from the
decision of the court to the contrary.