United States Court of Appeals
For the First Circuit
No. 06-1775
MARY T. JEAN,
Plaintiff, Appellee,
v.
MASSACHUSETTS STATE POLICE, et al.,
Defendants, Appellants.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. F. Dennis Saylor IV, U.S. District Judge]
Before
Boudin, Chief Judge,
Campbell, Senior Circuit Judge,
and Lipez, Circuit Judge.
Ronald F. Kehoe, Assistant Attorney General, with whom Thomas
F. Reilly, Attorney General, was on brief, for appellants.
Eric B. Hermanson, with whom Sara E. Solfanelli, Choate, Hall
& Stewart LLP, John Reinstein, and American Civil Liberties Union
of Massachusetts were on brief, for appellee.
June 22, 2007
LIPEZ, Circuit Judge. This case presents the question of
whether the First Amendment prevents Massachusetts law enforcement
officials from interfering with an individual’s internet posting of
an audio and video recording of an arrest and warrantless search of
a private residence, when the individual who posted the recording
had reason to know at the time she accepted the recording that it
was illegally recorded. The appellant state police officers
challenge the district court’s grant of a preliminary injunction
enjoining them from taking any action that interferes with appellee
Mary Jean's posting of the recording on a website. We find this
case materially indistinguishable from the Supreme Court’s decision
in Bartnicki v. Vopper, 532 U.S. 514 (2001), and thus conclude that
Jean has a reasonable likelihood of success on the merits of her
claim that the First Amendment protects the posting of a recording
under such circumstances. Consequently, we uphold the preliminary
injunction.
I.
A. Factual Background
The facts are largely undisputed; where disputes exist,
they do not affect the outcome of this appeal.
Jean, a local political activist in Worcester,
Massachusetts, maintained a website displaying articles and other
information critical of former Worcester County District Attorney
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John Conte.1 In October 2005, Paul Pechonis contacted Jean through
her website. They had never met previously. Pechonis explained
that, on September 29, eight armed State Police troopers arrested
him in his home on a misdemeanor charge. He met the officers at
the front door and allowed them to handcuff him. The officers then
conducted a warrantless search of his entire house. The arrest was
both audiotaped and videotaped by a “nanny-cam,” a motion-activated
camera used by parents to monitor children’s activities within the
home. The parties contest whether the recording was accidental;
this fact is immaterial to the outcome of the case.
Pechonis provided Jean a copy of the audio/video
recording. We assume, for purposes of this appeal, that when Jean
accepted the tape she had reason to know that it had been illegally
recorded. On January 29, 2006, Jean posted the recording on her
website accompanied by an editorial comment critical of Conte’s
performance in office.
By letter dated February 14, the State Police advised
Jean that her actions violated Mass. Gen. Laws ch. 272, § 99
("section 99"), and were subject to prosecution as a felony.2 The
1
The website is accessible at www.conte2006.com. Conte is no
longer in office.
2
Mass. Gen. Laws ch. 272 § 99(B)(4) defines an "interception"
as "to secretly hear, secretly record, or aid another to secretly
hear or secretly record the contents of any wire or oral
communication through the use of any intercepting device by any
person other than a person given prior authority by all parties to
such communication." In pertinent part, Mass. Gen. Laws ch. 272
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letter stated that, if Jean did not “cease and desist, within 48
hours of receipt of this letter, from posting this unlawful tape on
the internet or any other publicly accessible site,” the police
would “refer this matter to the District Attorney’s office for
further investigation and possible prosecution.” The police sent
a second letter on March 29, which clarified the previous letter by
stating that, given the statute's limitation to "wire or oral
communications," Jean would not be in violation if she removed the
audio portion of the recording from her website.
B. Procedural History
On February 17, 2006, Jean filed a complaint in federal
district court in Massachusetts seeking a temporary restraining
order and preliminary and permanent injunctive relief against the
Massachusetts State Police, State Police Superintendent Thomas G.
Robbins, and Attorney General Thomas Reilly in their individual and
official capacities (collectively, “the police”).3 Citing her
§ 99(C)(1) states that any person who "willfully commits an
interception, attempts to commit an interception, or procures any
other person to commit an interception" may be punished with a fine
of up to ten thousand dollars, imprisoned for up to five years, or
both. Section 99(C)(3) states that an individual who "willfully
discloses or attempts to disclose to any person the contents of any
wire or oral communication, knowing that the information was
obtained through interception . . . shall be guilty of a
misdemeanor." Finally, section 99(C)(6) prohibits "permit[ting],"
"participat[ing] in a conspiracy to commit," or serving as an
"accessory" to other violations of section 99.
3
Since the time Jean filed her complaint, Reilly has been
succeeded as Massachusetts Attorney General by Martha Coakley.
Under Federal Rule of Civil Procedure 25, however, "the action does
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right to free speech under the First Amendment, Jean sought to
preclude defendants from threatening her with prosecution or
enforcing section 99 against her. The district court granted a
temporary restraining order preventing the police from interfering
with Jean’s “disclosure, use, or display, including posting on the
internet,” of the audio/video recording.
After briefing and a hearing, the court granted the
request for a preliminary injunction on April 7. Finding the case
controlled by Bartnicki v. Vopper, 532 U.S. 514 (2001), the court
noted that Jean played no part in the recording of the video, that
she had “obtained the tape lawfully,” and that the videotape
related to a “matter of public concern.” The court concluded that
Jean had demonstrated a likelihood of success on the merits of her
First Amendment claim, that irreparable harm would result from the
absence of an injunction, and that the balance of burdens and
public interests weighed in favor of Jean. Consequently, it
granted the preliminary injunction. This appeal ensued.
II.
A. Standard of Review
Under 28 U.S.C. § 1292(a)(1), we have jurisdiction to
hear an interlocutory appeal of an order granting a preliminary
injunction. We review the grant or denial of a preliminary
not abate and the officer's successor is automatically substituted
as a party." Fed. R. Civ. P. 25(d)(1).
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injunction for abuse of discretion. Wine & Spirits Retailers, Inc.
v. Rhode Island, 418 F.3d 36, 46 (1st Cir. 2005). Within that
framework, "findings of fact are reviewed for clear error and
issues of law are reviewed de novo." Id. Thus, "we will set aside
a district court’s ruling on a preliminary injunction motion only
if the court clearly erred in assessing the facts, misapprehended
the applicable legal principles, or otherwise is shown to have
abused its discretion." Id.
In considering the motion for a preliminary injunction,
a district court weighs four factors: (1) the plaintiff’s
likelihood of success on the merits; (2) the potential for
irreparable harm in the absence of an injunction; (3) whether
issuing an injunction will burden the defendants less than denying
an injunction would burden the plaintiffs; and (4) the effect, if
any, on the public interest. Bl(a)ck Tea Soc’y v. City of Boston,
378 F.3d 8, 11 (1st Cir. 2004). The police contest only the first
factor: Jean’s likelihood of success on the merits. That inquiry
is the most important part of the preliminary injunction
assessment: "[I]f the moving party cannot demonstrate that he is
likely to succeed in his quest, the remaining factors become
matters of idle curiosity." New Comm Wireless Servs., Inc. v.
SprintCom, Inc., 287 F.3d 1, 9 (1st Cir. 2002). Moreover, to the
extent that the police could have argued that the other three
factors assist in demonstrating abuse of discretion by the district
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court, they have now waived those arguments by failing to raise
them on appeal.
Thus, the question before us is whether the district
court erred in granting a preliminary injunction prohibiting the
enforcement of Mass. Gen. Laws ch. 272, § 99 against Jean for her
receipt and internet posting of the audio/video recording of
Pechonis’ arrest. Like the district court, we evaluate whether, in
light of the record before us, she has a reasonable likelihood of
success on the merits.
B. Bartnicki v. Vopper
We agree with the district court that this case is
controlled by the Supreme Court’s decision in Bartnicki v. Vopper,
532 U.S. 514 (2001). Therefore, we must examine that decision
closely before applying it to the facts of this case.
1. Background
In Bartnicki, the Supreme Court considered "what degree
of protection, if any, the First Amendment provides to speech that
discloses the contents of an illegally intercepted communication."
Id. at 517. The dispute in Bartnicki arose during contentious
collective bargaining negotiations between a Pennsylvania school
board and a union representing teachers at the local high school.
An unidentified person intercepted and recorded a cellular phone
call between the union’s chief negotiator and the president of the
local union, during which the president stated: "If they’re not
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gonna move for three percent, we’re gonna have to go to their,
their homes . . . . To blow off their front porches . . . ." Id.
at 518-19 (first omission in original)(internal quotation marks
omitted).
Jack Yocum, the head of a local taxpayer’s organization,
subsequently found a recording of the intercepted conversation in
his mailbox. He played the tape for members of the school board
and later delivered the tape to Frederick Vopper, a radio
commentator, who played the tape on his public affairs talk show.
The union officials brought an action for damages under federal and
state wiretap statutes against Yocum and Vopper, who invoked their
First Amendment right to speak on issues of public importance.
The relevant provision of the federal wiretap statute, 18
U.S.C. § 2511(1)(c), provides that any person who “intentionally
discloses, or endeavors to disclose, to any other person the
contents of any wire, oral, or electronic communication, knowing or
having reason to know that the information was obtained through the
interception of a wire, oral or electronic communication in
violation of this subsection" may be sued. The Pennsylvania state
wiretap statute contains a similar provision. 18 Pa. Cons. Stat.
§ 5703. Both statutory schemes also provide for recovery of
damages for violations. 18 U.S.C. § 2520(c)(2); 18 Pa. Cons. Stat.
§ 5725(a).
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Following discovery, the parties filed cross-motions for
summary judgment before the district court. The court denied both
motions and granted a motion for an interlocutory appeal to the
Third Circuit. That court concluded that the statutes were invalid
as applied because they deterred significantly more speech than was
necessary to protect the privacy interests at stake, and remanded
with instructions to enter summary judgment for defendants.
Bartnicki, 532 U.S. at 521-22 (citing Bartnicki v. Vopper, 200 F.3d
109, 121 (3d Cir. 1999)). The Supreme Court then granted
certiorari to determine whether the First Amendment shielded
defendants from suits for damages for violation of § 2511(1)(c) and
its Pennsylvania analog.
Since the grant of certiorari followed a remand with
instructions to enter summary judgment for defendants, the majority
opinion (authored by Justice Stevens and joined by five other
Justices) viewed the facts in the light most favorable to the
plaintiffs. Bartnicki, 532 U.S. at 525. It assumed "that the
interception was intentional, and therefore unlawful, and that, at
a minimum, [defendants] 'had reason to know' that it was unlawful."
Id. at 525. The plaintiffs were thus entitled to recover damages
under the statutes unless application of the statutes in such
circumstances would violate the First Amendment. Id. The Court
also accepted three other factual propositions "that serve to
distinguish most of the cases that have arisen under § 2511."
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First, the defendants "played no part in the illegal interception.
Rather, they found out about the interception only after it
occurred, and in fact never learned the identity of the person or
persons who made the interception." Second, defendants’ “access to
the information on the tapes was obtained lawfully, even though the
information itself was intercepted unlawfully by someone else."
Third, "the subject matter of the conversation was a matter of
public concern." Id.
2. The Supreme Court's Analysis
The Court first held that § 2511(1)(c) was content
neutral, explaining that the statute "does not distinguish based on
the content of the intercepted conversations, nor is it justified
by reference to the content of those conversations. Rather, the
communications at issue are singled out by virtue of the fact that
they were illegally intercepted . . . ." Id. at 526. The Court
also explained that the statute, as applied to the facts of the
case, "is fairly characterized as a regulation of pure speech."
Id. It noted that the delivery of a tape recording "is like the
delivery of a handbill or pamphlet, and as such, it is the kind of
'speech' that the First Amendment protects." Id. at 527.
Having established these principles, the Court then
balanced the state interests served by the statute against the
public interest in the disclosure of information. The Court
identified two interests served by the statute: (1) "removing an
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incentive for parties to intercept private conversations"; and (2)
"minimizing the harm to persons whose conversations have been
illegally intercepted." Id. at 529. The Court accorded little
weight to the first interest, id. at 532, noting that “it would be
quite remarkable to hold that speech by a law-abiding possessor of
information can be suppressed in order to deter conduct by a non-
law-abiding third party,” id. at 529-30, and explaining that "there
is no empirical evidence to support the assumption that the
prohibition against disclosures reduces the number of illegal
interceptions," id. at 530-31. It found the second interest in the
situation before it more immediately relevant, noting that
"disclosure of the contents of a private conversation can be an
even greater intrusion on privacy than the interception itself."
Id. at 533. Given this concern, it found a "valid independent
justification" for prohibiting "disclosures by persons who lawfully
obtained access to the contents of an illegally intercepted
message," even if such prohibition does not deter the initial
interception. Id. In particular, "the fear of public disclosure
of private conversations might well have a chilling effect on
private speech." Id.
With respect to the public interest in disclosure, the
Court emphasized that "'if a newspaper lawfully obtains truthful
information about a matter of public significance then state
officials may not constitutionally punish publication of the
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information, absent a need . . . of the highest order.'" Id. at
528 (quoting Smith v. Daily Mail Publ'g Co., 443 U.S. 97, 103
(1979)(omission in original)). Given the presumption in favor of
protecting publication of truthful information, the issue presented
in Bartnicki was narrow: "'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
information based on the defect in a chain?'" Id. (quoting
Boehner v. McDermott, 191 F.3d 463, 484-85 (D.C. Cir.
1999)(Sentelle, J., dissenting)).
Although the Court thus noted that “there are important
interests to be considered on both sides of the constitutional
calculus,” id. at 533, it ultimately concluded that “privacy
concerns give way when balanced against the interest in publishing
matters of public importance,” id. at 534. Surveying the many
cases in which it had protected speech on matters of public
concern, id. at 534-35, the Court explained that "[o]ne of the
costs associated with participation in public affairs is an
attendant loss of privacy," id. at 534. Consequently, the Court
concluded that "a stranger's illegal conduct does not suffice to
remove the First Amendment shield from speech about a matter of
public concern." Id. at 535. Because the collective bargaining
negotiations in Bartnicki were "unquestionably a matter of public
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concern, and respondents were clearly engaged in debate about that
concern," the First Amendment prohibited recovery of damages
against defendants. Id.
C. Application of Bartnicki to Jean’s Circumstances
As a preliminary matter, we note that, like the statutes
in question in Bartnicki, section 99 is a "content-neutral law of
general applicability," id. at 526. It "does not distinguish based
on the content of the intercepted conversations, nor is it
justified by reference to the content of those conversations." Id.
Like the delivery of the recording in Bartnicki, which the Court
analogized to "the delivery of a handbill or a pamphlet," id. at
527, section 99's prohibition against disclosure also constitutes
a regulation of "pure speech."
As did the Court in Bartnicki, we consider the interests
implicated by the disclosure of the information. With respect to
the state's interest in protecting the privacy of its citizens, the
privacy interests discussed in Bartnicki are less compelling here.
Bartnicki emphasized the importance of “encouraging the uninhibited
exchange of ideas and information among private parties,” id. at
532, and of avoiding the "'[f]ear or suspicion that one’s speech is
being monitored by a stranger,'" id. at 533 (quoting President's
Commission on Law Enforcement and Administration of Justice, The
Challenge of Crime in a Free Society 202 (1967)). This interest in
protecting private communication is clearly implicated by the
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interception of a private cell phone conversation in Bartnicki.
However, this interest is virtually irrelevant here, where the
intercepted communications involve a search by police officers of
a private citizen’s home in front of that individual, his wife,
other members of the family, and at least eight law enforcement
officers.
Moreover, the state's interest in deterring illegal
interception by punishing a subsequent publisher of information —
already accorded little weight by the Court in Bartnicki — receives
even less weight here, where the identity of the interceptor is
known. In Bartnicki, the government argued that punishing a
subsequent publisher of information “remov[es] an incentive for
parties to intercept private conversations” by deterring would-be
publishers of illegally intercepted material and thus reducing the
demand for such material. Id. at 529-30 & n.17. This argument
rested, in part, on the assumption that the interceptors themselves
could not be punished because their identities usually were
unknown. Unimpressed, the Court explained that the available
evidence did not support this assumption of anonymity. First, the
legislative record did not indicate that a significant number of
interceptors were anonymous. Id. at 531 n.17. Moreover, fewer
than ten of the 206 cases filed under § 2511 (the federal wiretap
statute) involved an anonymous interceptor. Id. Thus, the Court
concluded that the relatively small number of anonymous
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interceptors meant that it was not "difficult to identify the
persons responsible for illegal interceptions" and, consequently,
not "necessary to prohibit disclosure by third parties with no
connection to, or responsibility for, the initial illegality," id.
Given this logic, there is a better argument for
prosecuting a subsequent publisher of information when the
interceptor is anonymous. In such a situation, the government is
unable to punish the interceptor directly; punishing the subsequent
publisher might be more justifiable as a deterrent. However, even
after taking into account the anonymity of the interceptor in
Bartnicki, the Court held that “[a]lthough there are some rare
occasions in which a law suppressing one party’s speech may be
justified by an interest in deterring criminal conduct by another,
this is not such a case.” Id. at 530 (citation omitted). Thus,
where, as here, the identity of the interceptor is known, there is
even less justification for punishing a subsequent publisher than
there was in Bartnicki.
On the public interest side of the equation, the broad
interest in permitting “the publication of truthful information of
public concern,” described in Bartnicki, id. at 534-35, applies
here as well. The police do not deny that the event depicted on
the recording — a warrantless and potentially unlawful search of a
private residence — is a matter of public concern. The police also
concede that, like the defendants in Bartnicki, Jean played no part
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in the illegal interception. Thus, the only possible ground for
distinguishing this case from Bartnicki is the assertion of the
police that Jean, unlike the defendants in Bartnicki, did not
obtain the recording lawfully.
The Massachusetts interception statute prohibits
"willfully commit[ting] an interception," Mass. Gen. Laws ch. 272,
§ 99(C)(1), and “willfully disclos[ing] . . . the contents of any
wire or oral communication, knowing that the information was
obtained through interception,” id. § 99(C)(3). It likewise
forbids “permit[ting],” “participat[ing] in a conspiracy to
commit,” or acting as an “accessory to a person who commits” a
violation of another subsection of the statute. Id. § 99(C)(6).
By willfully recording his arrest and then giving the recording to
Jean, Pechonis arguably would have violated both section 99(C)(1)
and section 99(C)(3). Thus, the police argue, by voluntarily
accepting the tape from Pechonis and then disseminating it, Jean
assisted, conspired, or served as an accessory to Pechonis’
violation of section 99(C)(3) and thereby independently violated
section 99(C)(6).
Elaborating on this point, the police contend that "the
disseminator's knowledge, when she obtains the tape, of the
interceptor's identity and of the unlawfulness of the interception
is determinative of whether she has obtained it lawfully or
unlawfully for purposes of a Bartnicki analysis." They emphasize
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that, in Bartnicki, the tape was placed anonymously in Yocum's
mailbox, and Yocum received the tape without knowing its contents
until after he played it. 532 U.S. at 519. Thus, they argue,
“[t]he break in the chain between the interceptor and the
defendants became the pivotal point in the Court’s balancing of
interests because the break meant that the defendants had not
obtained the tape unlawfully.” In contrast, “Jean knowingly
participated in [Pechonis’] disclosure and became the essential
but-for first link in the chain.” In short, appellants insist that
the "essential distinction between this case and Bartnicki" was
that "[i]n Bartnicki, the interceptor had already disseminated the
tape before Yocum passively received it and disseminated it
further; . . . . In the present case, it was Jean's active
collaboration with Pechonis that made his unlawful dissemination
possible in the first instance."
We will assume that Jean's conduct, viewed through the
prism of section 99(C)(3) and section 99(C)(6), may have been
unlawful under the Massachusetts statute. She disclosed to others
the contents of an oral communication that she knew had been
recorded illegally, and she arguably participated with Pechonis in
a conspiracy to disclose the content of the illegally recorded oral
communication. However, whether Jean's conduct fell within the
statute is not determinative — indeed, we note that the conduct of
both Yocum and Vopper in Bartnicki would have fallen within this
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statute. Rather, the determinative question is whether the First
Amendment, as applied by the Supreme Court in Bartnicki, permits
Massachusetts to criminalize Jean's conduct. On this question, we
find the arguments of the police unpersuasive.
The police note correctly that, in Bartnicki, Yocum did
not realize that the tape had been recorded illegally at the time
he received it in his mailbox. Yocum's knowledge of the illegality
of the interception arose only later, when he listened to the tape.
Although the police argue that this delay between the receipt of
the tape and the recognition of its illegality caused a critical
break in the chain, the Supreme Court attached no significance to
Yocum's receipt of the tape without knowledge of its contents. If
the disconnect in time between the receipt of the tape and the
later recognition that the tape had been recorded illegally was
critical to the premise that Yocum had obtained the tape lawfully,
the Court would have distinguished between Yocum and Vopper, who
received the tape directly from Yocum and thus knew the tape had
been recorded illegally at the time that he received it. Id. at
519. Yet the Court explicitly stated that it found no distinction
between Yocum and Vopper. Id. at 525 n.8. Like Vopper, Jean
already had reason to know that the tape was illegally intercepted
at the time that she received it; consequently, the Court's
conclusion that Vopper obtained the tape lawfully applies equally
to Jean.
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The police still insist on a distinction between Jean and
the defendants in Bartnicki because Jean's "active collaboration"
with Pechonis as the essential “first link” in the chain of
dissemination distinguishes this case from Bartnicki. They contend
that Jean "had the opportunity to prevent the dissemination" and
that "no one farther down the chain would have the same
opportunity." We also find this distinction unpersuasive.
Critically, in Bartnicki, Yocum had the opportunity to prevent
further disclosure. Although he did not know the tape was
illegally intercepted when he received it, he had that knowledge at
the time he disclosed the tape to the school board and Vopper.
Thus, both Yocum and Jean could have prevented further
dissemination by refusing to disclose the tape. In light of this
similarity, the fact that Yocum received the tape "passively" and
Jean received the tape "actively" is a distinction without a
difference: both made the decision to proceed with their
disclosures knowing that the tape was illegally intercepted, yet
the Supreme Court held in Bartnicki that such a knowing disclosure
is protected by the First Amendment.
Our conclusion is further supported by the D.C. Circuit’s
recent decision in Boehner v. McDermott, 2007 WL 1246438 (D.C. Cir.
May 1, 2007)(en banc). In Boehner, Alice and John Martin illegally
intercepted a cell phone conversation between Representative John
Boehner and several House Republican leaders. The Martins
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delivered a tape of the conversation, accompanied by a typed letter
explaining the nature of its contents, to the office of
Representative James McDermott, the ranking Democrat on the House
Ethics Committee, who, “[a]fter conversing with the Martins, . . .
accepted the envelope.” Id. at *2. McDermott listened to the tape
that evening and disclosed it to various newspapers the following
day. Boehner subsequently filed a complaint against McDermott
seeking damages for violations of federal and state wiretapping
statutes.
Following a lengthy procedural history,4 the D.C. Circuit
heard the case en banc. The majority held that “Representative
McDermott’s position on the Ethics Committee imposed a ‘special’
duty on him not to disclose the tape in these circumstances,” id.
at *5, and thus he "had no First Amendment right to disclose the
tape to the media,” id. at *7. The majority explicitly
distinguished Bartnicki, explaining that the case “has little to
say about” McDermott’s special duty because “[t]he individuals who
disclosed the tape in [Bartnicki] were private citizens who did not
occupy positions of trust.” Id. at *5. Importantly, however, “a
majority of the members of the Court . . . would have found
[McDermott’s] actions protected by the First Amendment” if he were
not subject to a special duty as a member of the Ethics Committee.
Id. at *7 (Griffith, J., concurring); see also id. at *12
4
See Boehner, 2007 WL 1246438 at *1, for an account of this
history.
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(Sentelle, J., dissenting).5 In other words, if McDermott had been
a private citizen, like Jean, the court would have concluded that
his disclosure of the tape was subject to First Amendment
protection regardless of the fact that he received the tape
directly from the Martins and thus served as the “first link” in
the chain leading to publication.
Returning to Bartnicki, the police make a final attempt
to distinguish the instant case by contending that language in
Justice Breyer’s concurring opinion, joined by Justice O’Connor,
differentiates that case from the situation at hand. They cite the
concurrence’s statement that “[n]o one claims that [defendants]
ordered, counseled, encouraged, or otherwise aided or abetted the
interception, the later delivery of the tape by the interceptor to
an intermediary, or the tape’s still later delivery by the
intermediary to the media,” Bartnicki, 532 U.S. at 538 (Breyer, J.,
concurring)(emphasis added). The precise scope of the emphasized
language is uncertain, and the police argue that Jean's knowing
acceptance of the tape constitutes aiding and abetting its delivery
to an intermediary in the person of Jean herself. Ultimately,
however, this language does not help the police. The concurrence
also states plainly that “the statutes do not forbid the receipt of
5
Judge Griffith joined the majority opinion but concurred to
state explicitly that McDermott’s publication would have been
protected if he were not a member of the Ethics Committee. The
dissent would have found McDermott’s publication protected by the
First Amendment regardless of his position on the Ethics Committee.
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the tape itself,” id. at 538. This statement indicates that
Justice Breyer did not interpret 18 U.S.C. § 2511(c), in
conjunction with the federal aiding and abetting statute, 18 U.S.C.
§ 2, to punish an individual's acceptance of a tape, even if that
individual had reason to know that the tape’s contents were
illegally intercepted. Moreover, if he had interpreted the statute
to forbid later disclosure of the tape by one who had lawfully
received it, he could not have joined the majority opinion, which
held that the defendants, who certainly aided the tape's later
delivery by an intermediary to the media, did nothing unlawful.
Thus, the concurring opinion offers no basis for distinguishing
Jean’s situation from that of the defendants in Bartnicki.
III.
We conclude that the government interests in preserving
privacy and deterring illegal interceptions are less compelling in
this case than in Bartnicki, and Jean’s circumstances are otherwise
materially indistinguishable from those of the defendants in
Bartnicki, whose publication of an illegally intercepted tape was
protected by the First Amendment. Jean's publication of the
recording on her website is thus entitled to the same First
Amendment protection. Consequently, we agree with the district
court that Jean has a reasonable likelihood of success on the
merits of her suit for a permanent injunction. The district
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court’s decision to grant Jean’s request for a preliminary
injunction is affirmed.
So ordered.
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