UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 99-10272
_____________________
CARVER DAN PEAVY; SALLY PEAVY,
Plaintiffs-Appellants/Cross-Appellees,
versus
WFAA-TV, INC.; ROBERT RIGGS,
Defendants-Appellees/Cross-Appellants.
_________________________________________________________________
Appeals from the United States District Court
for the Northern District of Texas
_________________________________________________________________
July 31, 2000
Before POLITZ, JOLLY, and BARKSDALE, Circuit Judges.
RHESA HAWKINS BARKSDALE, Circuit Judge:
Primarily at issue is whether the First Amendment shields
WFAA-TV, Inc., and its reporter, Robert Riggs, from liability for
their “use” and “disclosure”, in violation of the Federal and Texas
Wiretap Acts, of the contents of the Peavys’ cordless telephone
conversations, illegally intercepted and recorded by the Harmans,
with them providing the recordings to Riggs and with Riggs and WFAA
having some participation concerning the interceptions, at least as
to their extent. Numerous other federal and state law issues are
presented, including whether defendants “procured” or “obtained”
the Harmans to make the interceptions, in violation of the Federal
and Texas Acts, respectively, and whether the Federal Act even
permits a civil action for damages for such “procurement”. The
district court granted summary judgment for WFAA and Riggs,
holding, inter alia: the Harmans were neither so “procured” nor
“obtained”; and even though defendants engaged in proscribed “use”
and “disclosure”, the First Amendment trumps the two Acts. We
AFFIRM in part; REVERSE in part; VACATE in part; and REMAND.
I.
The facts are largely undisputed. The following is drawn, in
part, from the magistrate judge’s recommendation, adopted by the
district court without a separate opinion. Peavy v. Harman, 37 F.
Supp. 2d 495, 502-04 (N.D. Tex. 1999).
Carver Dan Peavy (Peavy) was elected a trustee for the Dallas
Independent School District (DISD) in 1986, so serving until 1995.
By the early 1990s, he controlled purchases of insurance for DISD
employees. He was a friend and business associate of Eugene
Oliver, an insurance agent who had been convicted as an accomplice
to murder. The Peavys had been long involved in various, ongoing
disputes with their neighbors, Charles and Wilma Harman. Id. at
502 n.2.
In early December 1994, Charles Harman (Harman) acquired a
police scanner, in order to monitor police activity in his
neighborhood. The first time he turned it on, he overheard a
telephone conversation between Peavy and another neighbor, in which
they discussed filing a class action against the Harmans. Id. at
2
502. Thereafter, Harman locked the scanner onto the frequency for
the Peavys’ cordless telephone, and continued listening to their
conversations. Harman overheard conversations which he interpreted
as threats to his safety, and some involved what he perceived to be
public corruption on the part of Peavy involving insurance at DISD.
Id. Shortly thereafter, Harman began recording the intercepted
conversations. Id.
The Harmans claimed to have consulted with various law
enforcement officials regarding the legality of intercepting and
recording cordless telephone calls, and to have been told it was
legal. Id. (However, in a related proceeding, subsequent to the
summary judgment in this case, the magistrate judge found that no
one told the Harmans such interception was legal. See Goodspeed v.
Harman, 39 F. Supp. 2d 787, 793-94 (N.D. Tex. 1999).)
Frustrated at the lack of police response to his reports of
Peavy’s threats and public corruption, Harman contacted WFAA on 8
December 1994, and spoke with one of its producers, P. J. Ward.
Id. at 503. Harman told Ward he had information about possible
corruption by an elected official, who he eventually identified as
Peavy. Id. Ward relayed the tip to Riggs, a WFAA investigative
reporter. Id.
Riggs telephoned Harman that afternoon. Id. Harman told
Riggs he: had proof Peavy was threatening to harm him and was
involved in an insurance kickback scheme; was concerned for his
3
family’s safety; and wanted to talk to Riggs in person. Id. Riggs
had never heard of Peavy and was not working on a story about DISD
insurance.
The next day, Riggs went to the Harmans’ home. Id. They told
him about their history with Peavy; hearing, with a police scanner,
his threats and discussions of insurance kickbacks; and taping his
conversations. They told Riggs about the contents of overheard,
but not recorded, conversations; played a tape of recorded
conversations; and showed him the scanner. Riggs knew the parties
to those conversations were not aware of, and did not consent to,
the interception and recording.
Riggs claimed: he asked Harman, at their initial meeting,
whether it was legal to record the conversations; and Harman
assured him his actions had been approved by the Dallas County
District Attorney and the Dallas Police Department. Id. On the
other hand, the Harmans claim Riggs told them he had consulted with
WFAA’s attorney about the legality of the intercepts prior to their
meeting. Riggs denied then consulting counsel and stated he did
not do so until a few days later.
At their initial meeting, Harman asked Riggs whether he wanted
a copy of the tape, as well as others he (Harman) might make in the
future. Id. Riggs replied he did. Id. He also instructed the
Harmans not to turn the tape recorder on and off while recording
4
intercepted conversations, and not to edit them, so that the tapes’
authenticity could not be challenged. Id.
Riggs took the tape of the intercepted conversations to WFAA;
met with Ward and WFAA News Director John Miller; told them about
his meeting with the Harmans; and played portions of the tape for
them. Id. They agreed Peavy’s activities should be investigated.
Id. After that meeting, Riggs asked another WFAA employee to
conduct research regarding the contents of the tape, and instructed
Ward to conduct other research at DISD.
WFAA asked its outside legal counsel, Paul Watler, whether it
was lawful for WFAA to receive tapes of the intercepted and
recorded cordless telephone conversations. At a meeting with Riggs
and Miller on 12 December 1994, Watler advised he would have to
double-check, but thought it legal to intercept and record cordless
telephone conversations. At a meeting at WFAA on 4 January 1995,
Watler told Riggs: it was legal to listen to, and record, cordless
telephone conversations; and WFAA could legally accept and
broadcast the tapes.
In February 1995, Ward and Watler decided to have portions of
the tapes transcribed. Ward selected for transcription those
portions she believed would illustrate to Riggs, Miller, and Watler
the evidence of public corruption and racial discrimination. At
Watler’s suggestion, Ward had them transcribed by a court reporter
5
in Austin, Texas, and took measures to ensure the confidentiality
of the tapes and transcripts.
After the transcript was prepared, Ward made copies for
Miller, Riggs, and Watler. Ward and Riggs reviewed, edited, and
corrected it. Watler reviewed it to familiarize himself with the
contents of the tapes so that he could advise WFAA on legal
questions that might arise. And, Riggs gave a copy of the
transcript to the Harmans to review for accuracy.
In late February, Riggs began preparing a memorandum in which
he formulated story outlines based on the contents of the tapes and
his investigation of those contents.
By the end of that month, the Harmans had provided to WFAA 17
more tapes of the Peavys’ conversations. Id. Ward listened to,
and took notes about, each tape. At Miller’s request, Ward
prepared a memorandum regarding the persons, and another regarding
the topics, mentioned on the tapes.
The 18 tapes WFAA received from Harman contained 188 telephone
conversations between the Peavys and others. Id. Because the
contents of those conversations are not particularly relevant to
the issues at hand, it is not necessary to describe them in detail.
Generally, they concern DISD insurance and Peavy’s conduct as a
DISD trustee, a plan to sell cancer insurance to an entity other
than DISD, and Peavy’s relationship with Oliver. They also include
offensive language, as well as conversations about intensely
6
personal matters which the participants obviously would never have
discussed had they known of the interceptions.
By late February 1995, Riggs had been informed by law
enforcement sources for another story on which he was working that
the Federal Wiretap Act had been amended to cover interception of
cordless telephone calls. Id. Accordingly, he asked Watler to re-
check his previous advice regarding the legality of using the
intercepted conversations. Id. At WFAA’s request, Watler
conducted further research and discovered that the law had been
amended in October 1994 (about six weeks before the first Riggs-
Harman meeting), to make it unlawful to intercept the radio portion
of a cordless telephone call. Id. Pub. L. No. 103-414, §
202(a)(1), 108 Stat. 4290, 4291 (codified as amended at 18 U.S.C.
§ 2510(1) (deleting from definition of “wire communication”
provision which excluded radio portion of cordless telephone
communication that is transmitted between handset and base unit)).
Watler immediately informed Miller of the amendment and
advised WFAA not to accept any more tapes. On 1 March, Watler met
with Miller and Riggs and advised them his previous advice had been
incorrect. He opined that, in any event, the First Amendment took
precedence over the wiretapping laws and that WFAA could still use,
and broadcast (disclose), the tapes, because it had lawfully
obtained them. Nevertheless, he advised WFAA that the more
conservative approach was not to accept additional tapes, not to
7
broadcast any tapes, not to disclose the contents of the tapes to
third parties, and not to confront individuals about conversations
on the tapes, unless the same information was available from other
sources.
In addition, Watler advised WFAA to return the original tapes
to Harman and tell him WFAA would not accept any more. He also
advised WFAA to provide him with all copies of the tapes,
transcripts, and other materials related to the tapes’ contents.
Ward forwarded the materials (except for her copy of the
transcript, which she inadvertently did not include) to Watler.
The tapes WFAA had received from Harman were returned to him by
either Riggs or Ward on or about 1 March. 37 F. Supp. 2d at 504.
Even after learning recording Peavy’s conversations was
illegal, Harman continued to intercept them until his scanner was
seized by the FBI in October 1995. Id. Harman told Riggs about
the contents of at least one of these interceptions. He also
recorded at least one other, for which he pleaded guilty to
violating the Federal Wiretap Act and paid a $5,000 fine. Id.
At the earlier described 1 March meeting with Miller and
Riggs, Watler also advised WFAA could continue to research Peavy
and DISD insurance using other means. Riggs and Ward continued
their extensive investigation of Peavy and Oliver, such as
requesting records from DISD and other governmental agencies;
interviewing numerous individuals; investigating DISD’s insurance
8
providers; conducting background research and checks on Peavy and
others; and reviewing past DISD campaign contributions, board and
committee minutes, and insurance proposals.
Between 31 July and 2 August 1995, WFAA broadcast three
reports on Peavy’s alleged wrongdoing in connection with DISD
insurance. Id. Although intercepted conversations were not played
in the broadcasts, the district court held that, in violation of
the Federal and Texas Wiretap Acts, WFAA and Riggs “disclosed”
portions of the tapes’ contents during them. Id. at 514. After 2
August, WFAA periodically broadcast follow-up reports on Peavy,
Oliver, and DISD insurance. Watler reviewed the broadcasts before
they aired.
After Riggs learned of the illegality of the interceptions, he
disclosed to federal law enforcement officials and a Dallas Police
detective (apparently in August 1995) the tapes’ contents and other
information from his investigation. Riggs then advised the Harmans
about those discussions.
In April 1996, Peavy and Oliver were indicted for bribery and
other offenses related to DISD insurance. Id. at 504. They were
acquitted of all charges. Id.
In October 1996, the Peavys filed this action against WFAA and
Riggs, claiming violations of Title III of the Omnibus Crime
Control and Safe Streets Act of 1968, codified at 18 U.S.C. §§
2510-2521, as amended by the Electronic Communications Privacy Act
9
of 1986 (Federal Wiretap Act); as well as making state law claims
under TEX. CIV. PRAC. & REM. CODE § 123.001, et seq. (Texas Wiretap
Act) and for, inter alia, civil conspiracy. Separate actions
filed by the Olivers against WFAA, Riggs, and Harman, and by the
Peavys against the Harmans, were consolidated for pretrial
purposes. 37 F. Supp. 2d at 504 n.6.
Cross-motions for summary judgment were referred to the
magistrate judge. Id. at 502. His October 1998 recommendation
was, inter alia: WFAA and Riggs violated the Federal and Texas
Wiretap Acts by “using” and “disclosing” contents of illegal
interceptions, id. at 513-15, but they should be awarded summary
judgment because liability for their proscribed conduct would
violate the First Amendment. Id. at 518. Summary judgment was
also recommended for WFAA and Riggs on the Peavys’ other state law
claims. Id. at 521-25. The district court adopted the
recommendation. Id. at 501.
II.
The Peavys claim the district court erred by: holding
defendants did not “procure” the interceptions by the Harmans, in
violation of the Federal Act, or “obtain” them, in violation of the
Texas Act; granting summary judgment against their civil conspiracy
claims; applying strict scrutiny and, as a result, holding that the
First Amendment shields WFAA and Riggs from liability under the
“use” and “disclosure” provisions of the two Wiretap Acts; and
10
denying their motion to suppress the contents of the illegal
interceptions.
By cross-appeal, WFAA and Riggs (defendants) contest the
holding they engaged in proscribed “use” and “disclosure”.
Alternatively, they claim the Wiretap Acts are facially
unconstitutional for vagueness and overbreadth.
The United States intervened on appeal, pursuant to 28 U.S.C.
§ 2403(a) and FED. R. APP. P. 44, to defend the constitutionality of
the Federal Wiretap Act. And, an amicus brief was filed by
numerous media entities, such as the National Broadcasting Company,
Inc.
We review the summary judgment de novo, using “the same
criteria as the district court, viewing all facts, and the
inferences to be drawn from them, in the light most favorable to
the non-movants”. Forsyth v. Barr, 19 F.3d 1527, 1533 (5th Cir.),
cert. denied, 513 U.S. 871 (1994). The judgment is proper if, in
the light of the summary judgment record, “‘there is no genuine
issue as to any material fact and ... the mov[ant] is entitled to
a judgment as a matter of law.’” Id. (quoting FED. R. CIV. P.
56(c)).
“[T]he substantive law will identify which facts are
material”. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). “Only disputes over facts that might affect the outcome of
the suit under the governing law will properly preclude ... summary
11
judgment.” Id. “[A] dispute about a material fact is ‘genuine’
... if the evidence is such that a reasonable jury could return a
verdict for the nonmov[ant]”. Id.
A.
The Federal Wiretap Act is violated if a person, inter alia,
“procures any other person to intercept ... any wire, oral, or
electronic communication”. 18 U.S.C. § 2511(1)(a) (emphasis
added). Under the Texas Wiretap Act, “[a] party to a communication
may sue a person who ... [, inter alia,] obtains another to
intercept ... the communication”. TEX. CIV. PRAC. & REM. CODE §
123.002(a)(1) (emphasis added).
The district court held defendants neither “procured”, in
violation of the Federal Act, nor “obtained”, in violation of the
Texas Act, the Harmans to intercept the Peavys’ communications,
because the Harmans made an independent decision in which
defendants did not actively participate. Peavy, 37 F. Supp. 2d at
512-13.
1.
Defendants urge us to affirm the summary judgment on the
ground, not addressed by the district court, that the Peavys did
not timely plead a “procures” or “obtains” claim. They maintain
the former was not raised until in opposition to summary judgment;
the latter, until in objections to the recommendation.
12
“A pleading which sets forth a claim for relief ... shall
contain ... a short and plain statement of the claim showing that
the pleader is entitled to relief”. FED. R. CIV. P. 8(a). “The form
of the complaint is not significant if it alleges facts upon which
relief can be granted, even if it fails to categorize correctly the
legal theory giving rise to the claim.” Dussouy v. Gulf Coast Inv.
Corp., 660 F.2d 594, 604 (5th Cir. 1981).
The amended complaint stated, inter alia, that defendants
conspired with the Harmans “to intercept” the Peavys’
communications, “knowing or having reason to know” the contents
were obtained through interception in violation of, inter alia, “18
U.S.C. § 2511 and/or Chap. 123, TEX. CIV. PRAC. & REM. CODE”.
“Procuring” and “obtaining” claims are stated.
2.
Alternatively, for the federal “procures” claim, defendants
urge affirming summary judgment on the ground there is no private
civil action for violation of that portion of § 2511(1)(a).
a.
The Peavys contend, incorrectly, that defendants “waived” this
issue by not presenting it in district court. Although the
magistrate judge and district judge did not address this no-civil-
action issue, defendants did raise it in response to the Peavys’
objections to the recommendation.
13
Even assuming the issue was not properly raised, we may
consider a “purely legal claim” advanced for the first time on
appeal, to support affirmance of a summary judgment, when “there
are no countervailing reasons warranting remand to the district
court”. See F.D.I.C. v. Lee, 130 F.3d 1139, 1141-43 (5th Cir.
1997) (affirming summary judgment on statutory ground raised by
appellee for first time on appeal).
Whether the Federal Act authorizes a private civil action for
procurement is a legal issue of statutory interpretation, which
requires no presentation of evidence. Because the issue has been
fully briefed, and the Peavys cannot claim prejudice, there are no
“countervailing reasons” to preclude our considering it.
b.
Defendants did not cite, nor have we found, any cases
addressing the availability, under the Federal Act, of a civil
procurement action. Prior to its amendment in 1986, the provision
authorizing civil damages stated, in pertinent part:
Any person whose wire or oral
communication is intercepted, disclosed, or
used in violation of this chapter shall (1)
have a civil cause of action against any
person who intercepts, discloses, or uses, or
procures any other person to intercept,
disclose, or use such communications, and (2)
be entitled to recover from any such person
[damages, attorney’s fees, and costs].
18 U.S.C. § 2520 (1970) (emphasis added).
14
But, the “or procures any other person” language was deleted
when the section was amended in 1986. See Oceanic Cablevision,
Inc. v. M.D. Elecs., 771 F. Supp. 1019, 1027 (D. Neb. 1991)
(“[s]ection 103 of the Electronic Communications Privacy Act of
1986[] amended § 2520 by eliminating the ‘or procures another
person’ language of the statute and incorporating violations
involving the interception, disclosure, or intentional use of
electronic communications” (citing S. Rep. No. 541, 99th Cong., 2d
Sess. 26-27, reprinted in 1986 U.S.C.C.A.N. 3555, 3580-81)).
As amended, § 2520 provides, in pertinent part, that
any person whose wire, oral, or electronic
communication is intercepted, disclosed, or
intentionally used in violation of this
chapter may in a civil action recover from the
person or entity which engaged in that
violation such relief as may be appropriate.
18 U.S.C. § 2520(a) (Supp. 2000) (emphasis added). Nevertheless,
§ 2511(1)(a) continues to proscribe procuring another to intercept
covered communications.
In short, the class of persons who may bring a civil action
for violation of the Act is the same in both the original and
amended provisions: those with covered communications
“intercepted, disclosed, or used” in violation of the Act. But,
those who may be held civilly liable are not the same. The amended
provision does not have the “procures any other person” language,
extending civil liability to “the person or entity which engaged in
that violation”, 18 U.S.C. § 2520(a) (Supp. 2000) (emphasis added).
15
And, the referenced “violation” is “intercepted, disclosed, or
intentionally used”; there is no mention of “procures”.
“When Congress acts to amend a statute, we presume it intends
its amendment to have real and substantial effect.” Stone v.
I.N.S., 514 U.S. 386, 397 (1995). The Peavys counter that the
amendment did not take away an action for procurement, because the
§ 2520(a) class of potential defendants is broad enough to cover
persons who violate the Federal Act by procuring another to
intercept; and the legislative history of the amendment does not
indicate any intent to eliminate a civil claim for procurement.
We disagree. Section 2520(a)’s plain, unambiguous language
authorizes a civil action by one whose covered “communication is
intercepted, disclosed, or intentionally used in violation of this
chapter”, from “the person or entity which engaged in that
violation”. 18 U.S.C. § 2520(a) (Supp. 2000) (emphasis added).
“Statutory construction must begin with the language employed by
Congress and the assumption that the ordinary meaning of that
language accurately expresses the legislative purpose.” Park ’N
Fly, Inc. v. Dollar Park & Fly, Inc., 469 U.S. 189, 194 (1985).
Restated, we must assume Congress meant what it said in the
amendment. Accordingly, “that violation” refers only to illegal
interception, disclosure, or use, and not to procuring interception
by another.
16
This interpretation of § 2520(a) does not render superfluous
the portion of § 2511(1)(a) prohibiting “procuring”; as noted, that
proscription can be enforced through, inter alia, a criminal
proceeding. See BFP v. Resolution Trust Corp., 511 U.S. 531, 537
(1994) (“it is generally presumed that Congress acts intentionally
and purposely when it includes particular language in one section
of a statute but omits it in another” (brackets, internal quotation
marks, and citation omitted)).
Because the plain language of the statute is unambiguous,
resort to legislative history for its interpretation is not
necessary. See Andrews & Kurth L.L.P. v. Family Snacks, Inc.
(Matter of Pro-Snax Distribs., Inc.), 157 F.3d 414, 425 (5th Cir.
1998). Moreover, even if the legislative history is silent
regarding Congress’ intent, in the 1986 amendment, to take away a
civil action for procurement, that silence does not make the
amended statute ambiguous. If Congress intended to retain the
action, it failed to express that intent. See id. (where language
in statute was deleted in amendment, absence of legislative history
did not render statute ambiguous; even if Congress intended to
leave language intact, such intent was not reflected in
unambiguous, amended statute).
Obviously, if Congress did not intend to delete a civil
procurement action, it can amend § 2520(a). But, it goes without
17
saying that we cannot do so. The federal procurement claim was
properly dismissed.
c.
But, even though there is no federal civil liability for
“procurement”, such activity, as noted, is nevertheless unlawful,
pursuant to § 2511(1)(a). Accordingly, it may well be that
procurement vel non remains an issue for trial. For example, for
damages purposes, procurement vel non may bear on the extent of
defendants’ knowledge of the Harmans’ illegal interceptions.
The following section concerning the Peavys’ “obtains” claim
under the Texas Act is intertwined with procurement vel non under
the Federal Act. For the reasons stated in that section, we hold,
contrary to the district court, that there is a material fact issue
on procurement.
3.
For the Texas Act, the Peavys contend they are entitled to
judgment as a matter of law, or, in the alternative, there is at
least a material fact issue, on whether defendants “obtained” the
Harmans’ interception of the Peavys’ conversations, by encouraging
them to intercept calls, instructing them on recording techniques,
requesting and picking up tapes of recorded conversations from
them, and promising to expose Peavy’s wrongdoing. Defendants
respond that their association with the Harmans and receipt of the
18
tapes does not constitute “obtaining” the Harmans to make the
interceptions.
a.
The Texas Act does not define “obtains”; similarly, the
parties did not cite, nor did we find, any Texas cases interpreting
that term for purposes of the Act. The parties’ briefs focus
primarily on federal “procurement”. According to the Peavys,
“obtain” has essentially the same meaning as “procure”. Defendants
apparently agree: they maintain the evidence and authorities cited
in their discussion of the federal procurement claim also
demonstrate they did not “obtain” the Harmans’ interceptions in
violation of the Texas Act.
The Peavys cite the BLACK’S LAW DICTIONARY definition of “obtain”:
“to get hold of by effort; to get possession of; to procure; to
acquire, in any way”. BLACK’S LAW DICTIONARY 1228 (rev. 4th ed., West
1968) (emphasis added). The Seventh Edition of BLACK’S contains no
definition of the term. Webster defines it as “to gain or attain
possession or disposal of usu[ally] by some planned action or
method” or “to bring about or call into being”. WEBSTER’S THIRD NEW
INTERNATIONAL DICTIONARY (UNABRIDGED) 1559 (1986). See also THE NEW SHORTER
OXFORD ENGLISH DICTIONARY 1970 (1993) (“Come into the possession or
enjoyment of; secure or gain as the result of request or effort;
acquire, get.”).
19
The Texas Court of Appeals has stated: “In the absence of a
statutory definition, statutory language is measured by common
understanding and practices”. Reeves v. State, 969 S.W.2d 471, 487
(Tex. App. — Waco 1998), cert. denied, ___ U.S. ___, 119 S. Ct.
1462 (1999); see also Carroll v. State, 911 S.W.2d 210, 220 (Tex.
App. — Austin 1995) (“[i]n the absence of special definitions,
statutory language can be measured by common understanding and
practices or construed in the sense generally understood”).
Carroll, 911 S.W.2d at 220, relied on dictionary definitions
of “obtain” when construing the Texas statutory exclusionary rule,
TEX. CODE CRIM. P. ANN. art. 38.23(a) (prohibiting admission at trial
against accused in criminal case of evidence “obtained” in
violation of federal or Texas law (emphasis added)). See Reeves,
969 S.W.2d at 487 (construing art. 38.23 and stating that “‘obtain’
means to gain or attain by planned action or effort” (citing State
v. Daugherty, 931 S.W.2d 268, 270-71 (Tex. Crim. App. 1996)));
Ferguson v. State, 699 S.W.2d 381, 386 (Tex. App. — Fort Worth
1985) (citing dictionary definitions in concluding that, although
robbery statute uses term “obtain”, trial court’s use of terms
“appropriate” and “acquire”, rather than “obtain”, in jury charge
was not error).
The Peavys contend “obtain” does not require any “active
participation” in the interception, but only knowing participation
in the overall scheme by which the communications were intercepted.
20
They maintain it is enough to knowingly condone another’s
interceptions and advise him concerning them; or to implicitly
encourage the interception by using the information for the
interceptor’s benefit.
In this regard, they urge applying the definition of aiding
and abetting applied by the Supreme Court in Nye & Nissen v. United
States, 336 U.S. 613 (1949), cited in the legislative history of
the Federal Wiretap Act. See S. Rep. No. 90-1097, 90th Cong., 2d
Sess., reprinted in 1968 U.S.C.C.A.N. 2112, 2181. In Nye, “aid and
abet” was defined to mean “that a defendant in some sort associate
himself with the venture, that he participate in it as in something
that he wishes to bring about, that he seek by his action to make
it succeed”. Id. at 619 (internal quotation marks and citation
omitted).
Defendants respond that the Federal Act’s legislative history
does not discuss or cite any particular language in Nye with
approval, and does not equate “procure” with “aid and abet”. They
urge that “procure” (and, presumably, “obtain” for Texas Act
purposes) means “actively bringing about, causing or instigating
something to be done”. Alternatively, they claim that, under the
definition relied on by the Peavys, their conduct does not
constitute “aiding and abetting” the interceptions.
Defendants assert there is no evidence they caused,
instigated, or enlisted Harman to make the interceptions, or
21
participated in, or encouraged, them. They note his interceptions
started before Riggs contacted them, and continued after they
stopped accepting tapes from him.
The summary judgment record contains the following evidence
pertinent to this “obtains”, as well as the “procures”, claim. The
Harmans acquired the scanner and, prior to contacting WFAA or
meeting with Riggs, began intercepting and recording the Peavys’
telephone conversations. Defendants never provided Harman with
equipment to assist in that.
The Harmans called WFAA and met with Riggs, because they were
frustrated with the lack of action by law enforcement authorities
to whom they had reported Peavy’s conduct, and wanted it
investigated and exposed.
When the Harmans asked Riggs whether he wanted a copy of the
tape listened to at their initial meeting, and any future tapes
they might make, he replied that he did. Riggs instructed Harman
not to turn the recorder on and off while listening to the
intercepted conversations, and not to edit the tapes, to prevent
authenticity challenges.
As the Harmans made additional tapes, they called Riggs and
told him. Occasionally, he telephoned the Harmans to ask if
additional tapes were available. Riggs testified in his
deposition: he was very interested in obtaining any additional
22
information to further his investigation of Peavy; and he asked
Harman to keep him aware of whatever else he was hearing.
Either Riggs or Ward picked up the tapes from the Harmans.
Harman testified in his deposition: when Riggs came to pick up
tapes, he would listen to them at the Harmans’ home; he told Harman
he would “look into” the contents of the tapes; and later told
Harman he was “finding more stuff” based on such contents.
According to Mrs. Harman, Riggs and Harman, after their
initial meeting, had “a lot” of telephone conversations. After the
Harmans learned recording the conversations was illegal and WFAA
informed them it would not accept additional tapes, they continued
intercepting the Peavys’ conversations, and continued telephone
contact with Riggs. Riggs also met with the Harmans in their home
after they learned of the illegality.
On 1 March 1995, after Watler told Riggs, Miller, and Ward
they could not accept additional tapes, Riggs called Harman and
recorded their conversation, without Harman’s knowledge. In that
conversation, Riggs discussed the progress defendants had made on
the story and assured Harman repeatedly that he and WFAA were going
to continue working on the story.
Viewing this evidence in the light most favorable to the
Peavys, we conclude that, although they are not entitled to summary
judgment on this point, neither are defendants. Construing
“obtains” in the sense generally understood (gain or attain by
23
planned action or effort), a reasonable jury could find that, with
the exception of the interceptions made by the Harmans prior to
their contacting WFAA and Riggs, and possibly the interceptions
made after Riggs informed Harman that WFAA would not accept
additional tapes, defendants’ interim conduct constituted
“obtaining” the Harmans to intercept the Peavys’ conversations, in
violation of the Texas Act (as well as “procuring” them in
violation of the Federal Act).
At the very least, to the extent Riggs’ instructions regarding
recording entire conversations caused the Harmans to intercept and
record portions of conversations they otherwise would not have
intercepted and recorded, a reasonable jury could conclude Riggs
“obtained” (or “procured”) the Harmans’ interception of those
discrete portions.
A reasonable jury also could conclude that defendants’
willingness to pursue the investigation and exposure of Peavy’s
alleged wrongdoing — the purpose for which the Harmans contacted
WFAA — encouraged the Harmans to continue intercepting, and
recording, the Peavys’ conversations, even if it was not the sole
motivation for their doing so.
b.
Another of defendants’ assertions about federal “procurement”
appears to bear on the Peavys’ Texas “obtains” claim. In a
footnote to their contention there is no “procurement” action,
24
defendants conclusorily assert: “if procurement is construed as
broadly as [the Peavys] would have it, the ... provision also would
be unconstitutional as applied ... and on its face”. They cross-
reference their contentions that the First Amendment shields them
from liability for proscribed “use” and “disclosure”.
Obviously, assuming defendants intend this to apply to the
“obtains” claim, it is not adequately briefed. In any event, it is
without merit. Defendants have essentially conceded the First
Amendment would not bar an action against them for interception.
There is no basis for distinguishing, for First Amendment purposes,
between a person intercepting, on the one hand, and obtaining it
through someone else, on the other.
B.
For their state law civil conspiracy claim, and relying on the
same evidence supporting their “obtains” claim, the Peavys contend
they are entitled to summary judgment, or, in the alternative,
there is at least a material fact issue whether defendants
conspired with the Harmans to intercept the conversations. Summary
judgment was granted defendants on the ground there was no evidence
of conspiracy — that defendants believed in good faith their
activities were lawful. Peavy, 37 F. Supp. 2d at 524-25.
1.
The Peavys contend ignorance or mistake of law is not a
defense to civil conspiracy, so it is irrelevant whether defendants
25
knew their actions violated the Texas Act. Defendants counter
that, because civil conspiracy requires proof of specific intent,
the Peavys must prove: (1) Riggs knew his conduct was unlawful
(they claim undisputed evidence establishes the contrary); and (2)
Riggs entered into an agreement specifically intending to injure
the Peavys (they claim there is no evidence of such an agreement).
Civil conspiracy under Texas law is “a combination by two or
more persons to accomplish an unlawful purpose or to accomplish a
lawful purpose by unlawful means”. Schlumberger Well Surveying
Corp. v. Nortex Oil & Gas Corp., 435 S.W.2d 854, 856 (Tex. 1968)
(internal quotation marks and citations omitted). “The essential
elements are: (1) two or more persons; (2) an object to be
accomplished; (3) a meeting of minds on the object or course of
action; (4) one or more unlawful, overt acts; and (5) damages as
the proximate result”. Massey v. Armco Steel Co., 652 S.W.2d 932,
934 (Tex. 1983). Not at issue are the first, fourth, and fifth
elements.
In Texas, “civil conspiracy requires specific intent”.
Triplex Communications, Inc. v. Riley, 900 S.W.2d 716, 719 (Tex.
1995). Proof that a defendant “intend[ed] to engage in the conduct
that resulted in the injury” is insufficient. Id. Instead, “[f]or
a civil conspiracy to arise, the parties must be aware of the harm
or wrongful conduct at the inception of the combination or
agreement”. Id. “One without knowledge of the object and purpose
26
of a conspiracy cannot be a co-conspirator; he cannot agree, either
expressly or tacitly, to the commission of a wrong which he knows
not of”. Schlumberger, 435 S.W.2d at 856. “And, of course, one
without knowledge of a conspiratorial plan or scheme to injure
another by the commission of a particular wrong cannot share the
intent to injure such other”. Id. at 857.
Based on the evidence discussed supra, a reasonable jury could
find that defendants and the Harmans agreed to accomplish a lawful
purpose (investigation and exposure of Peavy’s alleged wrongdoing),
but undertook to do so, at least in part, by unlawful means
(proscribed interception, use, and disclosure of Peavys’
conversations). It is undisputed that, from the inception of their
association, Riggs knew the Harmans had intercepted and recorded
the Peavys’ conversations without the knowledge of any of the
parties to them.
Thus, defendants were aware of the Harmans’ wrongful conduct.
None of the cases cited by defendants supports their contention
that Texas law requires additional proof they knew about the
provisions that made such conduct illegal. Moreover, Glenn H.
McCarthy, Inc. v. Knox, 186 S.W.2d 832, 838 (Tex. App. – Galveston
1945), rejects such a contention:
Though defendants did not know of the
illegality of the agreement, the purpose of
the conspiracy is to be determined ordinarily
by the quality of the acts to be performed
under it.... It is therefore not a necessary
27
element that a party have knowledge of the
illegality of the end which would be
accomplished thereby.
Id. at 838.
Once again, while the Peavys are not entitled to summary
judgment on this claim, neither are defendants. A reasonable jury
could find the requisite “meeting of the minds” based on the
following evidence: Riggs, knowing the circumstances under which
the calls were intercepted, agreed to accept, from the Harmans,
tapes of the interceptions and conduct an investigation of the
contents in an effort to expose Peavy’s alleged wrongdoing, which
Harman admitted was the purpose for his contacting WFAA and meeting
with Riggs; and Riggs instructed Harman to record entire
conversations, and to not edit tapes.
2.
Alternatively, defendants contend conspiracy liability would
violate their First Amendment protections. This contention is
inadequately briefed. In any event, we reject it for the same
reasons we rejected their contention that the First Amendment
precludes holding them liable, under the Texas Act, for “obtaining”
the interceptions.
C.
Defendants’ cross-appeal challenges the holding they violated
the “use” and “disclosure” provisions of the Federal and Texas
Acts. They maintain they are entitled to summary judgment on this
28
issue, or, in the alternative, that there is a material fact issue,
precluding judgment as a matter of law on this point for the
Peavys.
This issue is addressed prior to considering the presented
First Amendment issues because, obviously, we need not reach them
if defendants did not violate these provisions. See, e.g., County
Court of Ulster County, N.Y. v. Allen, 442 U.S. 140, 154 (1979)
(court has “strong duty to avoid constitutional issues that need
not be resolved in order to determine the rights of the parties to
the case under consideration”).
The Federal Act permits a civil action against “any person”
who “intentionally” discloses to another person or uses “the
contents of any [covered] communication, knowing or having reason
to know that the information was obtained through the interception
of [a covered] communication in violation of this subsection”. 18
U.S.C. § 2511(1)(c) and (d). The Act defines “contents” as
including “any information concerning the substance, purport, or
meaning of that ... communication”. 18 U.S.C. § 2510(8).
Similarly, the Texas Act provides: “A party to a communication may
sue a person who ... uses or divulges information that he knows or
reasonably should know was obtained by interception of the
communication”. TEX. CIV. PRAC. & REM. CODE § 123.002(a)(2) (emphasis
added). For our purposes, “disclose” under the Federal Act and
“divulge” under the Texas Act are considered equivalent.
29
The district court held defendants violated the Acts by
“using” the contents of the illegally intercepted conversations to
analyze, compile, make notes, and develop leads; and by
“disclosing” those contents in their television broadcasts and to
other persons. Peavy, 37 F. Supp. 2d at 514-15. On a multitude of
grounds, defendants challenge these “used-and-disclosed”
conclusions.
1.
a.
First, defendants contend that, in their television
broadcasts, they did not use or disclose the tapes’ contents,
because the broadcasts were based entirely on sources independent
of the tapes, and those sources “attenuated” the taint of the
interceptions. Defendants maintain they should not be forever
barred from investigating all topics discussed in the intercepted
conversations merely because they first learned of those topics as
a result of the interceptions.
The “attenuation doctrine” was developed in Fourth Amendment
jurisprudence, for criminal cases, as an exception to the
exclusionary rule. See Wong Sun v. United States, 371 U.S. 471,
485-88 (1963). That rule generally prohibits admission of evidence
obtained “during or as a direct result” of a search or seizure in
violation of the Fourth Amendment. Id. at 485. But, under the
attenuation doctrine, such evidence may be admissible if “the
30
connection between the lawless conduct of the police and the
discovery of the challenged evidence has become so attenuated as to
dissipate the taint”. United States v. Ceccolini, 435 U.S. 268,
274 (1978) (internal quotation marks and citation omitted).
In correctly rejecting defendants’ reliance on this doctrine,
the district court stated: “The fact that Riggs later obtained the
same information from independent sources” was irrelevant, Peavy,
37 F. Supp. 2d at 514, because “the exclusionary rule does not
excuse a substantive violation of the law”. Id. at 514 n.17.
Defendants’ reliance on cases addressing the suppression of
wiretap evidence under the Federal Act exclusionary rule, § 2515
(if communication intercepted, contents and evidence derived
therefrom may not be received in evidence if such disclosure would
violate Act), is misplaced in the context of whether defendants are
liable for “use” and “disclosure”. E.g., United States v. Smith,
155 F.3d 1051, 1059-63 (9th Cir. 1998) (applying attenuation
doctrine in resolving § 2515 suppression issue), cert. denied, 525
U.S. 1071 (1999); United States v. Baranek, 903 F.2d 1068, 1072
(6th Cir. 1990) (applying Fourth Amendment principles to resolve §
2515 suppression issues).
b.
We reject Defendants’ claim that their television broadcasts
did not constitute “disclosure” because much of the information in
them was provided a week earlier in a television broadcast by
31
another station. Defendants’ broadcasts included substantial
information not broadcast by the other station. For example, the
other broadcast did not refer to Peavy’s plan to sell insurance to
an entity other than DISD. Moreover, this contention is
inconsistent with defendants’ television broadcasts, which
frequently touted the exclusivity of their reporting and
investigation.
c.
Nevertheless, we conclude there is a material fact issue
whether, in their television broadcasts, defendants intentionally
disclosed the contents of the illegal interceptions. As discussed
infra, this is independent of “use” liability.
Defendants did not play interception-tapes in their television
broadcasts. Although the record contains considerable evidence
that their entire investigation of Peavy and DISD insurance would
not have occurred but for those tapes, and that some of the topics
covered in their broadcasts were initially derived from them, that
evidence is not uncontradicted. There is also considerable
evidence of their extensive investigation, and their reliance on
sources independent of the intercepted contents for the material
reported in those broadcasts.
Therefore, a reasonable jury could conclude that, in their
television broadcasts, defendants did not intentionally disclose
32
the intercepted contents, but instead disclosed information
obtained from sources independent of them.
Again, this point concerns only whether, in their television
broadcasts, defendants intentionally disclosed intercepted
contents, not whether they used the contents in their investigation
or otherwise made other types of disclosures of those contents. As
discussed infra, the Wiretap Acts restrict the publication of
information based solely on the means by which it was acquired.
Accordingly, the Acts do not prohibit disclosure of information
that might be contained in illegal interceptions, so long as such
disclosed information is acquired by other, non-prohibited means.
Therefore, if a jury finds defendants’ television broadcasts
reported information obtained from sources independent of the
tapes, defendants would not be liable, under the Wiretap Acts, for
disclosing such information in their television broadcasts, even if
the information so disclosed was also included in the contents of
those intercepted communications.
This distinction between “use” and “disclosure” gives effect
to both provisions, and does not undermine their purposes.
Prohibiting liability for disclosure, where it is based on sources
independent of interceptions, does not create a market for the
contents of interceptions. This is because, as noted, the person
making such disclosure still remains subject to punishment under
33
the Acts’ “use” provisions, if, for example, the intercepted
communications are used to obtain such independent sources.
Accordingly, the district court erred in holding as a matter
of law that, in their television broadcasts, defendants
intentionally disclosed the contents of the Peavys’ conversations.
2.
Regarding defendants’ “use”, as well as their “disclosure” by
means other than through a television broadcast, defendants claim,
on five bases, exceptions, as a matter of law, to liability: (a)
newsgathering; (b) internal disclosure to corporate agents; (c)
common-interest privilege; (d) disclosure to attorney for legal
advice; and (e) disclosure to law enforcement officials.
a.
Defendants maintain “use” and “disclosure”, during their
investigation and newsgathering, is not proscribed. They do not
deny that they used and, in a non-broadcast context, disclosed the
contents of the interceptions. Instead, they assert the court’s
broad interpretations of “use” and “disclosure” seriously
jeopardize vital First Amendment interests; and, to preserve them,
we should construe the terms narrowly and conclude that exploring
leads from lawfully obtained information is not proscribed “use” or
“disclosure”.
The only case cited in support is United States v. Smith: “A
lead ... is simply not enough to taint an entire investigation”.
34
155 F.3d at 1063. As discussed supra, Smith is a criminal case in
which Fourth Amendment principles were applied in discussing
suppression under § 2515, the statutory exclusionary rule. It
offers no support for defendants’ narrow construction of “use” and
“disclosure”. Defendants’ First Amendment contentions are
addressed infra.
b.
Defendants contend disclosures to WFAA employees of the
contents of the interceptions are not actionable because a
corporation cannot disclose information to itself. They maintain
this principle also applies to disclosures to their attorney,
Watler, and to the person who transcribed portions of the
interceptions, because both acted as WFAA’s agents.
Defendants cite no authority for holding intra-organization
disclosures are not violative of the Wiretap Acts. The Acts
authorize certain specified disclosures. Such exceptions do not
include the types made by defendants. See 18 U.S.C. § 2517(1)
(authorizing disclosure by “[a]ny investigative or law enforcement
officer who, by any means authorized by this chapter, has obtained
knowledge of the contents of any [covered] communication or
evidence derived therefrom” to “another investigative or law
enforcement officer to the extent that such disclosure is
appropriate to the proper performance of the official duties of the
officer making or receiving the disclosure”); 18 U.S.C. § 2517(3)
35
(authorizing disclosure by “[a]ny person who has received, by any
means authorized by this chapter, any information concerning a
[covered] communication, or evidence derived therefrom intercepted
in accordance with the provisions of this chapter ... while giving
testimony under oath or affirmation in any proceeding held under
the authority of the United States or of any State or political
subdivision thereof”); TEX. CIV. PRAC. & REM. CODE § 123.003(a)
(authorizing disclosure by “switchboard operator or an officer,
employee, or agent of a communication common carrier whose
facilities are used in the transmission of a wire communication ...
in the normal course of employment if engaged in an activity that
is necessary to service or for the protection of the carrier’s
rights or property”).
Accordingly, such use and disclosure, during defendants’
investigation and newsgathering, are proscribed by the Federal and
Texas Acts.
c.
Defendants also maintain disclosures to WFAA employees and
agents are protected by a “common interest” privilege. That
privilege, applicable in defamation cases, “attaches to statements
which occur under circumstances wherein any one of several persons
having a common interest in a particular subject matter may
reasonably believe that facts exist which another, sharing that
common interest, is entitled to know”. Gaines v. CUNA Mut. Ins.
36
Soc’y, 681 F.2d 982, 986 (5th Cir. 1982) (citing case applying
Texas law).
Defendants acknowledge, however, that this privilege has not
been applied in cases involving the Wiretap Acts. This issue,
raised in a footnote, is not adequately briefed. In any event, for
purposes of this case, the privilege is not available. Neither Act
authorizes disclosure in such circumstances. See 18 U.S.C. §
2517(1) and (3); TEX. CIV. PRAC. & REM. CODE § 123.003(a).
d.
Defendants contend that disclosure to their attorney, Watler,
is not actionable, because they consulted him for legal advice.
They rely on Nix v. O’Malley, 160 F.3d 343 (6th Cir. 1998), which
recognized an implied “defense exception” to disclosure liability,
pursuant to which the defendant had a privilege to disclose
contents of an interception to his attorneys “to assist in the
defense of the claims made against him”. Id. at 351 (internal
quotation marks omitted). The Sixth Circuit cited with approval
McQuade v. Michael Gassner Mechanical & Elec. Contractors, Inc.,
587 F. Supp. 1183 (D. Conn. 1984), in which that court stated:
To deny defendants’ counsel any possibility of
investigating or rebutting the allegations on
which [a] claim for punitive damages is based,
or of discussing the contents of the tapes
with their clients in the course of preparing
a defense of [a] lawsuit, would be to convert
the allegations of the complaint into a
judgment.
37
587 F. Supp. at 1190.
Defendants’ reliance on these cases is misplaced; their
“disclosures” to Watler were not made for the purpose of defending
against Wiretap Act claims. Instead, they were made after he
advised them (erroneously) that the Federal Act did not apply to
cordless telephone communications.
There was no need for defendants to make the “disclosures” to
Watler in order to obtain his legal advice on whether the Wiretap
Acts proscribed such interception. And, there is no evidence that,
at that time, defendants or Watler contemplated the possibility of
civil actions against defendants under the Federal or Texas Acts.
In fact, the record does not indicate Watler was even aware of the
existence of the Texas Act; it does not reflect that he ever
advised defendants about it.
e.
(1)
Defendants claim Riggs’ “disclosures” to federal law
enforcement authorities and the Dallas Police Department do not
provide a basis for liability because those agents were already
aware of the contents of the communications at the time Riggs
discussed his investigation with them. The record does not support
this contention.
In his deposition, Riggs admitted that ATF Agent Curtiss did
not already know about the tapes before Riggs described their
38
contents to him. And, he testified that, prior to their
conversation, Dallas Police Detective Storey, to whom he also
disclosed the contents of the communications, did not seem to know
about them.
(2)
Alternatively, defendants contend Riggs’ “disclosures” to law
enforcement officials were protected by a qualified privilege to
report crimes. As stated supra, the Federal and Texas Acts
authorize “disclosure” only in specified, limited circumstances,
none of which include the “disclosures” made by Riggs.
In Rodgers v. Wood, 910 F.2d 444 (7th Cir. 1990), the court
rejected a similar privilege claim, holding that the Federal Act
provides “no support for recognizing [an] exception for the common
law privileges protecting statements made to law enforcement agents
in furtherance of criminal investigations”. Id. at 447.
The very nature of the Act is to impose
limitations on the effectiveness of law
enforcement agents in the interests of
protecting the privacy of citizens.... The
Act represents Congress’s careful balancing
between the interests of the enforcement of
criminal laws and the assurance of privacy in
oral and wire communications. To recognize a
common law privilege as [defendant] suggests
would upset that balance.
Id.
3.
The Federal Act prohibits “intentionally” using or disclosing
the contents of covered communications, “knowing or having reason
39
to know that the information was obtained through the interception”
of such a communication in violation of the Act. 18 U.S.C. §
2511(1)(c) and (d) (emphasis added). Under the Texas Act, “a
person who ... uses or divulges information that he knows or
reasonably should know was obtained by interception of the
communication” may be civilly liable. TEX. CIV. PRAC. & REM. CODE §
123.002(2) (emphasis added).
Defendants assert that, in their “uses” and “disclosures”,
they did not act “intentionally”, as required for liability,
because, in good faith reliance on the advice of law enforcement
officials and legal counsel, they did not know, or have reason to
know, the conversations were intercepted illegally. They insist
they are not claiming “mistake of law”, in which a defendant
asserts that his subjective, good faith belief in the lawfulness of
his conduct excuses a violation of the law. Instead, they contend
their state of mind as to the legality of their conduct bears
directly on whether they acted “intentionally”.
The district court rejected that contention, relying on our
court’s having “implicitly rejected a good faith defense”, Peavy,
37 F. Supp. 2d at 511, in Forsyth, 19 F.3d at 1538 n.21 (knowledge
element for use and disclosure liability requires proof defendant
knew “1) the information used or disclosed came from an intercepted
communication, and 2) sufficient facts concerning the circumstances
of the interception such that the defendant could, with presumed
40
knowledge of the law, determine that the interception was
prohibited in light of [the Act]” (quoting Thompson v. Dulaney, 970
F.2d 744, 749 (10th Cir. 1992))). Peavy, 37 F. Supp. 2d at 511.
Defendants rely on United States v. Schilleci, 545 F.2d 519
(5th Cir. 1977), to support their contention that the Federal Act
requires proof of specific intent: that defendants acted
intentionally with the knowledge their conduct violated the Act.
But, as the district court noted, the criminal defendant in
Schilleci was charged with conspiracy to intercept wire and oral
communications; and conspiracy is a specific intent crime. Peavy,
37 F. Supp. at 511 n.14.
It is undisputed defendants knew that the information they
used and disclosed came from interceptions. It is also undisputed
they were aware of sufficient facts concerning the circumstances of
those interceptions such that they could, with presumed knowledge
of the law, determine the interceptions were prohibited by law.
Defendants contend, however, that the presumption they acted with
knowledge of the law was overcome by proof of erroneous legal
advice and reasonable reliance on the Harmans’ statements that law
enforcement officials had told them the interception and recording
were legal. They maintain such reliance negates the mental state
required for liability.
Despite their insistence to the contrary, acceptance of
defendants’ contentions would constitute recognition of an
41
ignorance or mistake of law defense to Federal and Texas Wiretap
Act liability. As the district court noted, our court, at least
implicitly, rejected such a defense in Forsyth; and it has been
rejected by numerous other courts. E.g., Reynolds v. Spears, 93
F.3d 428, 435-36 (8th Cir. 1996) (defendant’s reliance on incorrect
advice from law enforcement officer not defense to liability under
Federal Act); Williams v. Poulos, 11 F.3d 271, 285 (1st Cir. 1993)
(rejecting good faith defense where defendant mistakenly believed
use and disclosure authorized by statute); Thompson v. Dulaney, 970
F.2d 744, 749 (10th Cir. 1992) (“defendant may be presumed to know
the law”); Heggy v. Heggy, 944 F.2d 1537, 1541 (10th Cir. 1991)
(rejecting “good faith” defense to Federal Act liability based upon
mistake of law), cert. denied, 503 U.S. 951 (1992); United States
v. McIntyre, 582 F.2d 1221, 1224-25 (9th Cir. 1978) (rejecting
contention interception not “willful” because defendants believed
in good faith, based on advice from a law enforcement
communications technician, that their conduct was legitimate).
We join those courts and reject an ignorance or mistake of law
defense for disclosure or other use of communications illegally
intercepted in violation of § 2511(1)(c) and (d) of the Federal Act
and § 123.002(2) of the Texas Act. Based on the existence of the
Acts and their knowledge of the circumstances of the Harmans’
interception, defendants, at a minimum, had reason to know the
42
interceptions were illegal. They used and disclosed the contents
of those interceptions purposefully, not inadvertently.
4.
Remaining are three “use” and “disclosure” issues: two raised
by defendants; one, by the Peavys. We do not consider any of them,
because they were not raised in the parties’ opening briefs. E.g.,
United States v. Jackson, 50 F.3d 1335, 1340 n.7 (5th Cir. 1995)
(“It is well-settled that, generally, we will not consider issues
raised for the first time in a reply brief.”).
Defendants contend, for the first time in their reply brief,
that “use” and “disclosure” damages are not permissible without
proof of actual malice under the standard from New York Times Co.
v. Sullivan, 376 U.S. 254, 279-80 (1964); and that, because the
majority of the Peavys’ “use” and “disclosure” allegations were
untimely, we should reverse the district court’s “use” and
“disclosure” holding. (Moreover, the untimeliness issue is not
adequately briefed. And, assuming it has any validity, it would
seem to be a matter for the district court’s consideration for
trial.)
Likewise, in their brief as cross-appellees, rather than in
their opening brief, the Peavys challenge the district court’s
holding that listening to tapes, and reading transcripts, of
interceptions was not a prohibited “use”. (Moreover, as cross-
appellees on this issue, they cannot seek to enlarge their rights
43
under the district court’s decision. See Laker v. Vallette (Matter
of Toyota of Jefferson, Inc.), 14 F.3d 1088, 1090 n.1 (5th Cir.
1994).)
D.
Despite holding that defendants “used” and “disclosed” the
interceptions in violation of the Wiretap Acts, based, in part, on
concluding, as required by the Acts, that defendants knew, or had
reason to know, the interceptions were in violation of the Acts,
the district court nevertheless granted summary judgment for
defendants on the use and disclosure claims, on the ground that
imposition of liability would violate the First Amendment. Peavy,
37 F. Supp. 2d at 515-18. In so doing, it applied the strict
scrutiny analysis from The Florida Star v. B.J.F., 491 U.S. 524,
533 (1989). Peavy, 37 F. Supp. 2d at 515-16.
One of the key bases underlying this First Amendment holding
was the court’s conclusion that, although the Harmans intercepted
illegally, defendants nevertheless “lawfully obtained” the contents
of those interceptions because they neither participated in them
nor procured/obtained the Harmans to do so. Id. at 516-17.
Therefore, in addressing the as-applied constitutionality of the
“use” and “disclosure” provisions, the district court did not
consider defendants’ participation concerning the interceptions,
such as Riggs advising the Harmans to record complete
conversations. But, such participation, even if not rising to the
44
level of “procuring” or “obtaining” the Harmans to make the
interceptions, is a factor that must be considered in our de novo
review of the summary judgment awarded defendants on their claim
that, on the facts in this case, the “use” and “disclosure”
provisions are unconstitutional.
Regarding such participation, there is a material fact issue
for the Texas “obtains” claim. And, even though the Peavys cannot
bring an action/obtain damages if defendants, in violation of the
Federal Act, “procured” the Harmans to make the interceptions, such
“procurement” vel non (for which there is also a material fact
issue) has a bearing on whether the contents of the interceptions
were lawfully received by defendants. If not lawfully received,
this obviously changes the scope of the issue to be addressed for
this as-applied challenge.
Because of the material fact issue on “procure/obtain” and the
linkage of such conduct to whether defendants “lawfully received”
the tapes, the as-applied constitutional issue arguably could be
avoided now, by remanding it for reconsideration by the district
court at trial. Three considerations cut against doing so.
First, as discussed infra, defendants’, especially Riggs’,
participation concerning the interceptions, together with the other
factors considered infra, compels our upholding the
constitutionality of the “use” and “disclosure” provisions of the
45
Federal and Texas Acts. In short, further evidence is not needed
for this issue.
Second, if we remanded this constitutional issue for trial
(further evidence), in an attempt to avoid reaching it, our
reaching it would probably simply be delayed, instead, and at great
cost in time and expense to the parties and district court.
Because of the summary judgment posture of this case, such
avoidance of the constitutional issue at this stage would not be
prudential. “The flame is not worth the candle.”
Third, and related to the second consideration, even if the
Peavys prevail at trial on their Texas “obtains” claim, that would
not obviate the necessity of the constitutionality of the “use” and
“disclosure” provisions being addressed, because, notwithstanding
whether defendants may be liable for damages for “obtaining”
another to make the interceptions, in violation of the Texas Act,
both Acts also authorize separate damages for each “use” or
“disclosure” violation. See Fultz v. Gilliam, 942 F.2d 396, 402
(6th Cir. 1991) (“The text of the [Federal Act] plainly indicates,
and its purpose necessitates, that a new and discrete cause of
action accrue ... each time a recording of an unlawfully
intercepted communication is played to a third party who has not
yet heard it.”); Bess v. Bess, 929 F.2d 1332, 1334 (8th Cir. 1991)
(plaintiff awarded damages for each of 12 days of interception, as
well as additional statutory damages for use of contents).
46
In this respect, in permitted civil actions for violation of
the Federal Act, “the court may assess as damages whichever is the
greater of ... the sum of the actual damages suffered by the
plaintiff and any profits made by the violator as a result of the
violation; or ... statutory damages of whichever is the greater of
$100 a day for each day of violation or $10,000”. 18 U.S.C. §
2520(c)(2). Punitive damages, reasonable attorney’s fees, and
costs are also authorized. 18 U.S.C. § 2520(b). Likewise, under
the Texas Act, a person may recover, inter alia, $1,000 statutory
damages, actual damages in excess of $1,000, punitive damages, and
reasonable attorney’s fees and costs. TEX. CIV. PRAC. & REM. CODE §
123.004.
Accordingly, the more narrow issue before us is whether, on
the facts in this case, the First Amendment is violated by the
Federal and Texas Acts, as applied to the use and disclosure of
illegally intercepted communications about matters of public
significance, by persons who: knew, or had reason to know, the
communications were intercepted in violation of the Acts; but who
did not themselves make the interceptions; but who did have
undisputed participation concerning the interceptions to the extent
defendants did.
1.
a.
47
Defendants urge the district court was correct in applying
strict scrutiny and concluding that, absent a government interest
of the highest order, the First Amendment prohibits punishing the
media for using and disclosing “lawfully-received”, truthful
information about matters of public significance. Therefore,
defendants claim the “use” and “disclosure” provisions are
unconstitutional as applied to them. (Their alternative, facial
challenge to the constitutionality of those provisions, based on
vagueness and overbreadth, is discussed infra.)
Of course, because defendants violated the use/disclosure
provisions as a matter of law, as well as it being undisputed that
defendants, especially Riggs, did participate to some extent
concerning the interceptions, and as well as there being a material
fact issue whether defendants “procured” or “obtained” the Harmans
to make the interceptions, it is quite questionable, as discussed
infra, that defendants “lawfully received” the intercepted
contents. In any event, they rely primarily on the Supreme Court’s
decisions in Landmark Communications, Inc. v. Virginia, 435 U.S.
829 (1978); Smith v. Daily Mail Publ’g Co., 443 U.S. 97 (1979); and
Florida Star.
Landmark concerned a newspaper indicted for violating a
Virginia statute which proscribed divulging information about
proceedings before a state judicial review commission authorized to
hear complaints about judges’ disability or misconduct. 435 U.S.
48
at 830. The newspaper accurately reported on an inquiry pending
before the commission. Id. at 831.
The “narrow and limited question presented” was “whether the
First Amendment permits the criminal punishment of third persons
who are strangers to the inquiry, including the news media, for
divulging or publishing truthful information regarding confidential
proceedings of the [commission]”. Id. at 837. The Court held:
“[T]he publication Virginia seeks to punish under its statute lies
near the core of the First Amendment, and [Virginia’s] interests
advanced by the imposition of criminal sanctions are insufficient
to justify the actual and potential encroachments on freedom of
speech and of the press which follow therefrom”. Id. at 838.
The Court, however, was not “concerned with the possible
applicability of the statute to one who secures the information by
illegal means and thereafter divulges it”. Id. at 837 (emphasis
added). (Again, there are material fact issues whether defendants
“procured” or “obtained” the Harmans to make the illegal
interceptions.)
At issue in Daily Mail was a West Virginia statute which
singled out newspapers for criminal sanctions if a juvenile
offender’s name was published without written approval of the
juvenile court. 443 U.S. at 98. Through routine monitoring of a
police radio frequency, two newspapers learned about the shooting
death of a student, and immediately sent reporters and
49
photographers to the school where the incident occurred. Id. at
99. Reporters there obtained the name of the alleged assailant, a
minor, from witnesses, the police, and a prosecutor. Id.
Both newspapers were indicted under the statute for publishing
articles about the incident. Id. at 99-100. One did not mention
the alleged shooter’s name in its first article, published the
afternoon of the shooting, because of the statute’s prohibition;
but, both named him in articles published the next day, after at
least three different radio stations had broadcast his name. Id.
at 99-100.
The Court concluded that the statute did not satisfy the
constitutional standards applied in Landmark. Id. at 102. “[Our]
recent decisions demonstrate that state action to punish the
publication of truthful information seldom can satisfy
constitutional standards”, id.; and those opinions “suggest
strongly that if a newspaper lawfully obtains truthful information
about a matter of public significance then state officials may not
constitutionally punish publication of the information, absent a
need to further a state interest of the highest order”. Id. at 103
(emphasis added).1
1
In addition to citing Landmark, the Court cited Cox Broad.
Corp. v. Cohn, 420 U.S. 469 (1975) (where rape victim’s name became
known to public through official court records dealing with
rapist’s trial, damages could not be recovered against newspaper
for publishing victim’s name in violation of state statute that
criminalized such publication); and Oklahoma Publ’g Co. v. District
50
The Court stated that, “even assuming the statute served a
state interest of the highest order [protecting anonymity of
juvenile offenders], it does not accomplish its stated purpose”,
because it applied only to newspapers, and thus did not prevent
publication by other media. Id. at 105. The Court pointed out,
however: its holding was “narrow”; and no issue of privacy was
involved. Id.
Florida Star concerned a Florida statute which made it
unlawful to “print, publish, or broadcast ... [a sex offense
victim’s name] in any instrument of mass communication”. 491 U.S.
at 526 (internal quotation marks and citation omitted). A
newspaper published a rape victim’s name after obtaining it from a
publicly released police report. The newspaper was held liable in
an action by the victim based on violation of the statute. Id. at
526.
Although the Court ultimately concluded that such imposition
of damages violated the First Amendment, it refused the newspaper’s
Court, 430 U.S. 308 (1977) (vacating injunction prohibiting news
media from publishing name or photograph of juvenile, where,
despite state statute closing juvenile trials to public, judge had
permitted reporters and other members of public to attend court
hearing, because state cannot constitutionally restrain
dissemination of truthful information in public domain). Daily
Mail, 443 U.S. at 102-03. Although those “cases involved
situations where the government itself provided or made possible
press access to the information”, id. at 103, the Court said that
factor was “not controlling”, id., because “[a] free press cannot
be made to rely solely upon the sufferance of government to supply
it with information”. Id. at 104.
51
invitation to hold broadly “that the press may never be punished,
civilly or criminally, for publishing the truth”. Id. at 531.
Instead, “the sensitivity and significance of the interests
presented in clashes between First Amendment and privacy rights
counsel relying on limited principles that sweep no more broadly
than the appropriate context of the instant case”. Id. at 533.
The principle from Daily Mail was applied: “[I]f a newspaper
lawfully obtains truthful information about a matter of public
significance then state officials may not constitutionally punish
publication of the information, absent a need to further a state
interest of the highest order”. Id. (emphasis added; internal
quotation marks and citation omitted). In addition to “the
overarching public interest, secured by the Constitution, in the
dissemination of truth”, three additional considerations supported
“[a]ccording the press the ample protection provided by that
principle”. Id. at 534 (internal quotation marks and citation
omitted).
First, “because the Daily Mail formulation only protects the
publication of information which a newspaper has lawfully obtained,
the government retains ample means of safeguarding significant
interests upon which publication may impinge”. Id. at 534
(emphasis added; internal quotation marks and citation omitted).
Especially significant for the purposes of the case at hand, the
Court noted: “To the extent sensitive information rests in private
52
hands, the government may under some circumstances forbid its
nonconsensual acquisition, thereby bringing outside of the Daily
Mail principle the publication of any information so acquired”.
Id. (emphasis added).
Second, “punishing the press for its dissemination of
information ... already publicly available is relatively unlikely
to advance the interests in the service of which the State seeks to
act”. Id. at 535 (emphasis added).
The third, and final, consideration supporting application of
the Daily Mail principle was the “timidity and self-censorship
which may result from allowing the media to be punished for
publishing certain truthful information”. Id. (internal quotation
marks and citation omitted). Such “fear of excessive media self-
suppression” was applicable to “information released, without
qualification, by the government”. Id. at 535-36.
Applying Daily Mail, the Court held the newspaper could not be
held civilly liable, because: (1) it had “lawfully obtained
truthful information about a matter of public significance”, id.
(emphasis added; internal quotation marks and citation omitted);
and (2) although the state’s interests in protecting rape victims’
privacy and physical safety and encouraging them to report sex
offenses without fear of exposure are “highly significant
interests”, imposing liability for publication under the
circumstances of that case was “too precipitous a means of
53
advancing” those interests, id. at 537, because (a) the government
provided the information to the media, which “ma[d]e it especially
likely that, if liability were to be imposed, self-censorship would
result”, id. at 538; (b) under the negligence per se standard
applied by Florida courts, liability follows automatically from
publication, without “a scienter requirement of any kind ...,
engendering the perverse result that truthful publications
challenged pursuant to this cause of action are less protected by
the First Amendment than even the least protected defamatory
falsehoods”, id. at 539; and (c) the statute was facially
underinclusive, because it proscribed publication only by an
“instrument of mass communication”, but not by other means, id. at
540.
The Court stressed the “limited” nature of its holding:
We do not hold that truthful publication is
automatically constitutionally protected, or
that there is no zone of personal privacy
within which the State may protect the
individual from intrusion by the press, or
even that a State may never punish publication
of the name of a victim of a sexual offense.
We hold only that where a newspaper publishes
truthful information which it has lawfully
obtained, punishment may lawfully be imposed,
if at all, only when narrowly tailored to a
state interest of the highest order, and that
no such interest is satisfactorily served by
imposing liability ... under the facts of this
case.
Id. at 541 (emphasis added).
54
Footnote eight, extremely relevant to the case at hand,
stated: “The Daily Mail principle does not settle the issue
whether, in cases where information has been acquired unlawfully by
a newspaper or by a source, government may ever punish not only the
unlawful acquisition, but the ensuing publication as well”. Id. at
535 n.8 (“unlawfully” emphasized in original; other emphasis
added).
b.
The Peavys and the United States urge that distinctions
between the Federal and Texas Acts and the statutes at issue in
Florida Star, Daily Mail, and Landmark make inapplicable the
analysis applied in those cases. They rely heavily on the fact
that those statutes, unlike the Wiretap Acts, restricted speech on
the basis of content; penalized the disclosure of information
without imposing any underlying limitation on its acquisition; and,
in Florida Star, sanctioned the media for publishing information
provided by the government.
Pursuant to United States v. O’Brien, 391 U.S. 367 (1968), the
Peavys and the United States claim the Wiretap Acts are subject
only to intermediate First Amendment scrutiny, because they are
content-neutral laws of general applicability, which do not single
out the media for special burdens, and have only an incidental
effect on its ability to gather and report the news. They also
55
rely on Branzburg v. Hayes, 408 U.S. 665 (1972); and Cohen v.
Cowles Media Co., 501 U.S. 663 (1991).
In O’Brien, a person convicted for burning his draft card made
a First Amendment challenge to a federal statute which
criminalized, inter alia, such knowing destruction. 391 U.S. at
370. The statute was held constitutional, facially and as applied.
Id. at 372.
The Court noted that, on its face, the statute did not abridge
free speech, but instead dealt “with conduct having no connection
with speech”; and “there is nothing necessarily expressive”
involved in O’Brien’s conduct. Id. at 375. It refused to “accept
the view that an apparently limitless variety of conduct can be
labeled ‘speech’ whenever the person engaging in the conduct
intends thereby to express an idea”. Id. at 376. But, even
assuming “the alleged communicative element in O’Brien’s conduct
[was] sufficient to bring into play the First Amendment, it [did]
not necessarily follow that the [card’s] destruction ... is
constitutionally protected activity”. Id.
The statute was held to satisfy the level of scrutiny applied
when “‘speech’ and ‘nonspeech’ elements are combined in the same
course of conduct”. Id. at 376-77.
[A] government regulation is sufficiently
justified if it is within the constitutional
power of the Government; if it furthers an
important or substantial governmental
interest; if the governmental interest is
56
unrelated to the suppression of free
expression; and if the incidental restriction
on alleged First Amendment freedoms is no
greater than is essential to the furtherance
of that interest.
Id. at 377.
At issue in Branzburg was “whether requiring newsmen to appear
and testify before ... grand juries abridges the freedom of speech
and press guaranteed by the First Amendment”. 408 U.S. at 667.
The reporters maintained that, in order to gather news, they often
had to agree either not to identify the source of published
information, or to publish only a portion of the facts revealed by
him. Id. at 679.
In holding newsmen could be required to so testify, the Court
pointed out it was not suggesting “news gathering does not qualify
for First Amendment protection [, because] without some protection
for seeking out the news, freedom of the press could be
eviscerated”. Id. at 681. On the other hand, “[i]t is clear that
the First Amendment does not invalidate every incidental burdening
of the press that may result from the enforcement of civil or
criminal statutes of general applicability”. Id. at 682.
Similarly, “[i]t has generally been held that the First Amendment
does not guarantee the press a constitutional right of special
access to information not available to the public generally”. Id.
at 684 (emphasis added).
57
The Court declined to “grant newsmen a testimonial privilege
that other citizens do not enjoy”, because it “perceive[d] no basis
for holding that the public interest in law enforcement and in
ensuring effective grand jury proceedings is insufficient to
override the consequential, but uncertain, burden on news gathering
that is said to result from insisting that reporters, like other
citizens, respond to relevant questions put to them in the course
of a valid grand jury investigation”. Id. at 690-91.
Of particular interest for the case at hand is this
observation:
It would be frivolous to assert ... that the
First Amendment, in the interest of securing
news or otherwise, confers a license on either
the reporter or his news sources to violate
valid criminal laws. Although stealing
documents or private wiretapping could provide
newsworthy information, neither reporter nor
source is immune from conviction for such
conduct, whatever the impact on the flow of
news.... The Amendment does not reach so far
as to override the interest of the public in
ensuring that neither reporter nor source is
invading the rights of other citizens through
reprehensible conduct forbidden to all other
persons.
Id. at 691-92 (emphasis added).
Cohen concerned “whether the First Amendment prohibits a
plaintiff from recovering damages, under state promissory estoppel
law, for a newspaper’s breach of a promise of confidentiality given
to the plaintiff in exchange for information”. 501 U.S. at 665.
58
Holding that it does not, the Court refused to apply the analysis
used in Landmark, Daily Mail, and Florida Star. Id. at 668-69.
Instead, controlling was “the equally well-established line of
decisions holding that generally applicable laws do not offend the
First Amendment simply because their enforcement against the press
has incidental effects on its ability to gather and report the
news”. Id. at 669 (emphasis added).2 The Florida Star line of
cases was distinguished on the ground that “the truthful
information sought to be published must have been lawfully
acquired. The press may not with impunity break and enter an
office or dwelling to gather news”. Id. (emphasis added).
“It is ... beyond dispute that the publisher of a newspaper
has no special immunity from the application of general laws [and]
has no special privilege to invade the rights and liberties of
2
For illustrating such generally applicable laws, the
enforcement of which have incidental effects on the media’s ability
to gather and report news, Cohen cited the following cases, all but
two of which concern commercial regulation: University of Pa. v.
E.E.O.C., 493 U.S. 182, 201-02 (1990) (must pay non-discriminatory
taxes); Minneapolis Star & Tribune Co. v. Minnesota Comm’r of
Revenue, 460 U.S. 575, 581-83 (1983) (same); Zacchini v. Scripps-
Howard Broad. Co., 433 U.S. 562, 576-79 (1977) (may not publish
copyrighted material without obeying copyright laws); Branzburg;
Citizen Publ’g Co. v. United States, 394 U.S. 131, 139 (1969) (may
not restrain trade in violation of antitrust laws); Oklahoma Press
Publ’g Co. v. Walling, 327 U.S. 186, 192-93 (1946) (must comply
with Fair Labor Standards Act); Associated Press v. United States,
326 U.S. 1 (1945) (may not restrain trade in violation of antitrust
laws); Murdock v. Pennsylvania, 319 U.S. 105, 112 (1943) (must pay
non-discriminatory taxes); and Associated Press v. National Labor
Relations Bd., 301 U.S. 103 (1937) (must comply with National Labor
Relations Act).
59
others.” Id. at 670 (internal quotation marks and citation
omitted). Therefore, “enforcement of such general laws against the
press is not subject to stricter scrutiny than would be applied to
enforcement against other persons or organizations”. Id.
Minnesota’s doctrine of promissory estoppel was “a law of
general applicability”, because it did “not target or single out
the press”, but was “generally applicable to the daily transactions
of all the citizens of Minnesota”. Id. Accordingly, “[t]he First
Amendment d[id] not forbid its application to the press”. Id.
Applying that estoppel doctrine to the newspapers would not
punish them for publishing lawfully-obtained, truthful information,
because “compensatory damages are not a form of punishment” and,
“[i]n any event, ... the characterization of the payment makes no
difference for First Amendment purposes when the law being applied
is a general law and does not single out the press”. Id.
Florida Star and Daily Mail were distinguished: “In those
cases, the State itself defined the content of publications that
would trigger liability”; in contrast, in Cohen, “[t]he parties
themselves ... determine[d] the scope of their legal obligations,
and any restrictions that may be placed on the publication of
truthful information are self-imposed”. Id. at 670-71.
In addition, it was “not at all clear that [the newspaper]
obtained Cohen’s name ‘lawfully’ ..., at least for purposes of
publishing it”, because it obtained it “only by making a promise
60
... [it] did not honor”. Id. at 671 (emphasis added). The
dissenting opinions’ suggestion “that the press should not be
subject to any law ... which in any fashion or to any degree limits
or restricts the press’ right to report truthful information” was
rejected, because “[t]he First Amendment does not grant the press
such limitless protection”. Id.
Cohen concluded that, if permitting a promissory estoppel
claim had the effect of “inhibit[ing] truthful reporting because
news organizations will have legal incentives not to disclose a
confidential source’s identity even when that person’s identity is
itself newsworthy”, then it was “no more than the incidental, and
constitutionally insignificant, consequence of applying to the
press a generally applicable law that requires those who make
certain kinds of promises to keep them”. Id. at 671-72.
c.
Two recent cases from other circuits have addressed the level
of scrutiny for the constitutionality vel non of the Federal Act:
Bartnicki v. Vopper, 200 F.3d 109 (3d Cir. 1999), cert. granted, 68
U.S.L.W. 3685, 3698 (U.S. 26 June 2000) (Nos. 99-1687 and 99-1728);
Boehner v. McDermott, 191 F.3d 463 (D.C. Cir. 1999), petition for
cert. filed, 68 U.S.L.W. 3686 (U.S. 25 Apr. 2000) (No. 99-1709).
In Boehner, a Florida couple, using a radio scanner,
intercepted and recorded a telephone conversation between
Congressman Boehner, a Republican member of the House of
61
Representatives, and members of his Party. 191 F.3d at 464-65.
The couple delivered the tape to Congressman McDermott, then the
ranking Democratic member of the House Ethics Committee, explaining
by cover letter the tape contained “a conference call heard over a
scanner”. Id. at 465. Congressman McDermott gave copies of the
tape to three newspapers, each of which published an article about
the intercepted conversation. Id.
Congressman Boehner filed a civil action against Congressman
McDermott (but not the newspapers) for violating § 2511(1)(c)
(disclosure). Id. The district court agreed with Congressman
McDermott that § 2511(1)(c), as applied to him, violated the First
Amendment. Id. at 466. The court of appeals (split panel)
reversed, applying intermediate scrutiny. Id. 467-70.
The majority opinion observed that “the O’Brien analysis
applies to statutes containing generally applicable, content-
neutral prohibitions on conduct that create incidental burdens on
speech”. Id. at 467. Section 2511(1)(c) fit that description
because, to the extent it proscribes disclosures which “entail
constitutionally protected speech, the statute regulates it without
reference to content”, id. at 468; and it furthers a substantial
governmental interest unrelated to the suppression of free
expression because, “rather than impinging on speech, ... [it]
promotes the freedom of speech”. Id.
62
The incidental restriction on speech imposed by § 2511(1)(c)
was “no greater than is essential to the furtherance” of the
government’s substantial interests: “[W]ithout [that] prohibition
..., the government would have no means to prevent the disclosure
of private information, because criminals like [the intercepting
Florida couple] can literally launder illegally intercepted
information and there would be almost no force to deter exposure of
any intercepted secret”. Id. at 470 (internal quotation marks and
citation omitted).
The majority, for separate reasons, distinguished Florida
Star. One member concluded it had no application for a host of
reasons, including: § 2511(1)(c) is not directed at the press; it
seeks to protect the privacy of private, not public,
communications; and it has a scienter requirement. Id. at 471-76.
The other majority-member assumed, without deciding, that Florida
Star “applies in principle” but, because Congressman McDermott did
not lawfully obtain the tape, § 2511(1)(c) was subject to
intermediate scrutiny as applied to him. Id. at 479.
For Bartnicki, as noted, the Court granted certiorari in June
2000. The case concerned an unknown person intercepting and
recording a cellular telephone conversation, regarding a teachers’
pay raise, between Kane, a teachers’ union president, and
Bartnicki, a union negotiator. 200 F.3d at 113. The anonymous
interceptor left the tape in the mailbox of Yocum, the president of
63
a citizens’ organization opposed to the union’s proposals. Id.
After listening to the tape, Yocum gave copies to local radio
stations, which broadcast parts of it. Id.
Bartnicki and Kane sued Yocum and the media defendants for
violating § 2511(1)(c) and (d) (disclosure and use), and similar
provisions of a Pennsylvania statute. Id. Relying primarily on
Cohen, the district court denied summary judgment for defendants,
holding that the use and disclosure provisions were generally
applicable laws that did not single out the media or purposefully
restrict free expression, and could be applied to the media without
offending the First Amendment. Id. at 118.
On interlocutory appeal, the Third Circuit panel majority
rejected the media defendants’ contention that Daily Mail
controlled, because Florida Star footnote eight, quoted supra and
infra, “explicitly repudiated any suggestion that [Daily Mail]
answers ... whether a statute that limits the dissemination of
information obtained by means of questionable legality is subject
to First Amendment scrutiny”. Id. at 117 (emphasis added). The
court did not resolve whether the damages provisions of the Federal
and Pennsylvania Acts were generally applicable laws, because the
district court, “by suggesting that generally applicable laws do
not require First Amendment scrutiny when applied to the press, ...
read ... Cohen too broadly”. Id. at 118. Instead, the court
64
interpreted Cohen to hold “that a law of general applicability,
which neither targets nor imposes disproportionate burdens upon the
press, is enforceable against the press to the same extent that it
is enforceable against individuals or organizations”. Id. at 119.
As in the case at hand, the United States intervened in
Bartnicki to defend the constitutionality of the Federal Wiretap
Act. It claimed the use and disclosure provisions are subject to
intermediate scrutiny for two reasons: (1) they are generally
applicable laws imposing only incidental burdens on expression; and
(2) to the extent the provisions restrict speech in particular
cases, they do so in a content-neutral manner. Id.
The court rejected the first contention: “[W]hen a statute
that regulates both speech and conduct is applied to an act of pure
speech, that statute must meet the same degree of First Amendment
scrutiny as a statute that regulates speech alone”. Id. at 121.
But, it agreed that the use and disclosure provisions are
content-neutral, because the justification for proscribing such
conduct — strengthening “the underlying ban on unauthorized
interception, by denying the wrongdoer the fruits of his labor and
by eliminating the demand for those fruits by third parties” —
“does not rely on the communicative impact of speech”. Id. at 123
(emphasis added; internal quotation marks and citation omitted).
Applying intermediate scrutiny, the court held the
“government’s interest in protecting privacy by helping maintain
65
the confidentiality of [covered] communications ... is a
significant state interest”. Id. at 125 (internal quotation marks
and citation omitted).
In this regard, the use and disclosure proscriptions,
according to United States, furthered government’s interests in
protecting the privacy of covered communications in two ways: “(1)
by denying the wrongdoer the fruits of his labor and (2) by
eliminating the demand for those fruits by third parties”. Id.
(internal quotation marks and citation omitted). The court stated
the first was inapplicable, because, unlike here, there was no
evidence defendants encouraged or participated in the interception.
Id. Accordingly, with respect to the second, “[t]he connection
between prohibiting third parties from using or disclosing
intercepted material and preventing the initial interception is
indirect at best”. Id. at 125-26.
It concluded, therefore, that the use and disclosure
provisions, as applied to defendants not connected with the
interception, were not narrowly tailored to serve the government’s
interests. Id. at 126. Because persons who indirectly
participated in the interception could be punished under the
statute, “the government’s desired effect can be reached by
enforcement of existing provisions against the responsible parties
rather than by imposing damages on these defendants”. Id.
66
The court distinguished Boehner on the ground, among others,
that, unlike Yocum, who found the tape of the intercepted
conversation in his mailbox, Congressman McDermott, in Boehner,
entered into a transaction with the interceptors when he accepted
the tape from them. Id. at 128-29.
On the facts in Bartnicki (obviously, quite different from
those here), the court concluded “that the government’s significant
interest in protecting privacy is not sufficient to justify the
serious burdens the damages provisions of the Wiretapping Acts
place on free speech”. Id. at 129. It therefore held the Acts
“fail the test of intermediate scrutiny and may not
constitutionally be applied to penalize the use or disclosure of
illegally intercepted information where [, unlike here,] there is
no allegation that the defendants participated in or encouraged
that interception”. Id. (emphasis added).
d.
In the light of the foregoing jurisprudence, we must decide
what level of First Amendment scrutiny is appropriate in
determining whether defendants can be subject to civil liability
for use and disclosure of illegally-intercepted private telephone
conversations, which they received directly from the interceptors,
with full knowledge of the circumstances of the interceptions and
with some participation concerning the interceptions. None of the
foregoing cases addressed this precise question.
67
Florida Star is similar to this case in that the Peavys are
seeking to hold defendants civilly liable for, inter alia,
publication of truthful information. And, the governmental
interests supporting the Federal and Texas Acts and the Florida
statute are similar in that they seek to protect privacy;
accordingly, this case, like Florida Star, involves balancing
privacy and free press interests.
But, Florida Star is distinguishable in numerous ways. Unlike
the Florida statute, which restricted speech on the basis of
content, the Wiretap Acts, except under certain limited
circumstances not present here, prohibit use and disclosure of all
illegal interceptions, irrespective of their subject matter. The
use and disclosure restrictions are instead based on the manner in
which the information is acquired.
The statutes at issue in Daily Mail and Landmark also were
content-based restrictions on speech. We recognize that the Court
did not rely on the content-based nature of the statutes in
deciding to apply strict scrutiny in those cases. Nevertheless,
that distinction exists and is worthy of note, inasmuch as content-
based regulations of expression are subject to strict scrutiny,
irrespective of whether they prohibit the publication of lawfully-
obtained information. See Turner Broad. Sys., Inc. v. F.C.C., 512
U.S. 622, 642 (1994) (“Our precedents ... apply the most exacting
68
scrutiny to regulations that suppress, disadvantage, or impose
differential burdens upon speech because of its content”).
The statute in Florida Star targeted a segment of the media
(“any instrument of mass communication”); but, the Federal and
Texas Acts do not single out the media for special burdens.
Instead, they apply to “any person” who uses or discloses
illegally-intercepted communications, if he knows or has reason to
know of the interception’s illegality. Also unlike the Federal and
Texas Acts, the Florida statute did not require proof of scienter.
Moreover, none of the considerations underlying the Court’s
application of the Daily Mail principle in Florida Star are present
here. The first consideration — government’s retention of ample
means of safeguarding significant interests upon which publication
may impinge — is inapplicable. Unlike the reporter in Florida
Star, who obtained the victim’s name from public records made
available by the government (far from it), the contents of the
Peavys’ conversations had not been entrusted to the government, but
were instead given to defendants by private individuals who
intercepted them illegally. “To the extent sensitive information
rests in private hands, the government may under some circumstances
forbid its nonconsensual acquisition, thereby bringing outside of
the Daily Mail principle the publication of any information so
acquired”. Florida Star, 491 U.S. at 534.
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Moreover, in the light of our affirming that, as a matter of
law, defendants violated the use and disclosure provisions, they
knew or should have known the interceptions were illegal. In
addition, defendants had some participation concerning the
interceptions. (Moreover, there are material fact issues for
whether they “procured” or “obtained” the Harmans to make the
illegal interceptions. This bears also on defendants’ knowledge of
illegal interceptions.) Therefore, as noted, it is quite arguable
that defendants did not lawfully receive the contents of the tapes.
See Boehner, 191 F.3d at 479 (Ginsburg, J., concurring) (even if
the receipt of the tape containing the illegally intercepted call
was lawful, “[o]ne who obtains information in an illegal
transaction, with full knowledge the transaction is illegal, has
not ‘lawfully obtain[ed]’ that information in any meaningful
sense”).
The second Florida Star consideration — “the fact that
punishing the press for its dissemination of information which is
already publicly available is relatively unlikely to advance the
interests in the service of which [government] seeks to act”, id.
at 535 — is likewise inapplicable, because the contents of the
Peavys’ conversations were not publicly available or in the public
domain when defendants received, used, and disclosed them.
The final Florida Star consideration — “the timidity and self-
censorship which may result from allowing the media to be punished
70
for publishing certain truthful information”, id. (internal
quotation marks and citation omitted) — presents a somewhat closer
question. Nevertheless, the Court’s concern in that respect seemed
to be limited to “information released, without qualification, by
the government”. Id. at 536. “A contrary rule, depriving
protection to those who rely on the government’s implied
representations of the lawfulness of dissemination, would force
upon the media the onerous obligation of sifting through government
... pronouncements to prune out material arguably unlawful for
publication”. Id. Here, the only representation government has
made regarding the lawfulness of use and disclosure of illegal
interceptions is in the Federal and Texas Acts prohibiting such
conduct. Again, that prohibition applies only if the using or
disclosing person does so “intentionally”, and “knows or has reason
to know” the interceptions were illegal.
Accordingly, the Acts do not impose an “onerous obligation” on
the media. Instead, it is subject to the obligation imposed on all
citizens: the duty not to use or disclose interceptions, knowing
or having reason to know they were in violation of the Wiretap
Acts.
In the light of that scienter requirement, we think it highly
unlikely such an obligation will result in “timidity and self-
censorship” because, as stated in the Bartnicki dissent:
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One would suppose that a responsible
journalist ... would be unlikely to propose
publication of a ... conversation without some
effort to insure that [it] in fact took place
and to authenticate the identities of the
parties to [it]. As part of such an inquiry,
the question whether the parties to the
conversation had authorized its recording and
release, or whether others had lawfully
intercepted the conversation, would seem
naturally to arise. Moreover, current
technology would make it relatively easy to
determine whether the conversation had been
the subject of a prior press or broadcast
report.
Bartnicki, 200 F.3d at 135 (Pollak, J., dissenting). These
observations are all the more compelling here, in that defendants
had some participation concerning the interceptions.
Finally, and perhaps most important, is Florida Star footnote
eight: “The Daily Mail principle does not settle the issue
whether, in cases where information has been acquired unlawfully by
a newspaper or by a source, government may ever punish not only the
unlawful acquisition, but the ensuing publication as well.” Id. at
535 n.8 (“unlawfully” emphasized in original; other emphasis
added). Expressly reserved was the question at issue here. But,
as a member of the majority observed separately in Boehner, the
Branzburg Court may have shed some light on the answer to that
question: the First Amendment “does not reach so far as to
override the interest of the public in ensuring that neither
reporter nor source is invading the rights of other citizens
through represensible conduct forbidden to other persons”.
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Boehner, 191 F.3d at 473 (separate opinion of Randolph, J. (quoting
Branzburg, 408 U.S. at 691-92) (emphasis added)).
Likewise, the intermediate scrutiny cases advanced by the
Peavys and the United States are distinguishable. The statute at
issue in O’Brien was targeted at conduct (proscribed knowingly
destroying draft card) and imposed no restrictions on the media’s
publication of truthful information. And, the publication
restriction in Cohen was self-imposed.
Bartnicki and Boehner are also distinguishable. Media
liability for publication was not at issue in Boehner; and the
media defendants in Bartnicki, unlike Riggs and WFAA, were not in
any way involved with the interceptors, or the interceptions, but
instead received the interceptions from a third party, in whose
mailbox the anonymous interceptor had left the tape of the
intercepted communications.
Considering these cases, and the distinctions between them and
the case at hand, we conclude that the use and disclosure
provisions, as applied to Riggs and WFAA, must satisfy “the
intermediate level of scrutiny applicable to content-neutral
restrictions that impose an incidental burden on speech”. Turner,
512 U.S. at 662.
Along this line, we reject defendants’ contention that the
Federal and Texas Acts impose more than an “incidental” burden on
the gathering and reporting of news.
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According to defendants, a burden on the media can be
characterized as “incidental” only if it indirectly affects
newsgathering and publication, or subjects the media to non-
discriminatory economic regulation. Defendants claim the Acts
directly affect newsgathering and reporting because they completely
proscribe use and disclosure of all contents of interceptions.
Defendants interpret too broadly what constitutes an
“incidental” effect. The Acts restrict use and disclosure of
information based solely on the means by which it is acquired, and
the restriction applies only if the using or disclosing person
knows, or has reason to know, of the illegal manner of acquisition.
Accordingly, the Acts do not prohibit gathering and publishing the
same information, acquired from other sources.
2.
Under O’Brien’s intermediate scrutiny analysis, “a content-
neutral regulation [such as the Federal and Texas Wiretap Acts]
will be sustained if” the regulation
furthers an important or substantial
governmental interest; if the governmental
interest is unrelated to the suppression of
free expression; and if the incidental
restriction on alleged First Amendment
freedoms is no greater than is essential to
the furtherance of that interest.
Turner, 512 U.S. at 662 (quoting O’Brien, 391 U.S. at 377).
The Wiretap Acts satisfy intermediate scrutiny, according to
the United States and the Peavys, because: (1) the United States
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and Texas each have a substantial interest in maintaining the
confidentiality of private communications; (2) the use and
disclosure proscriptions are unrelated to the suppression of
speech, because liability is based on the means of acquisition of
the information, rather than the content, and the Acts do not
single out speech for special burdens, but prohibit all
unauthorized uses and disclosures; and (3) the incidental burdens
on speech are not impermissibly broad, because disclosure is not
singled out for special burdens, and the Acts do not prohibit the
use or disclosure of the same information obtained by non-
prohibited means.
The use and disclosure provisions, in defendants’ view, fail
intermediate scrutiny because they impose an absolute, categorical
ban on speech and expressive conduct, which burdens substantially
more speech than is necessary to further government’s legitimate
interests in protecting privacy.
a.
One of the “dual purposes” of the Federal Act is “protecting
the privacy of [covered] communications”. Gelbard v. United
States, 408 U.S. 41, 48 (1972) (quoting S. Rep. No. 1097, 90th
Cong., 2d Sess., 66 (1968)); see also United States v. Cianfrani,
573 F.2d 835, 855 (3d Cir. 1978) (“protection of privacy was an
overriding congressional concern” in enacting Federal Act). It
does so by proscribing not only unauthorized interception, §
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2511(1)(a), but also the intentional use and disclosure of illegal
interceptions, § 2511(c) and (d). The purpose of the use and
disclosure proscriptions is to reinforce the interception
proscription by “denying the wrongdoer the fruits of his conduct”,
Fultz, 942 F.2d at 401, and by eliminating the demand for those
fruits by third parties. Boehner, 191 F.3d at 469-70.
[P]rotection of the privacy of communications
is vital to our society. We depend upon the
free interchange of ideas and information.
And we are dedicated to the proposition that
each individual should be free from
unwarranted intrusion into his private
affairs. Both these interests are threatened
by modern techniques of electronic
surveillance, however, since it is now
possible to record surreptitiously the most
intimate conversations and to preserve them
for later disclosure. Only by governing
strictly both authorization [of interception]
and disclosure of intercepted communications
did Congress believe that such weighty
interests could be protected adequately.
Cianfrani, 573 F.2d at 856.
The privacy interests protected by the Wiretap Acts are of
constitutional dimension. See Harper & Row Publishers, Inc. v.
Nation Enters., 471 U.S. 539, 559 (1985) (although “essential
thrust of the First Amendment is to prohibit improper restraints on
the voluntary public expression of ideas”, there is “a concomitant
freedom not to speak publicly, one which serves the same ultimate
end as freedom of speech in its affirmative aspect” (emphasis in
original)); Katz v. United States, 389 U.S. 347, 352-53 (1967)
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(Fourth Amendment protects privacy of telephone conversation from
governmental intrusion by electronic surveillance).
And, the privacy interests sought to be protected by the
Federal Act have been held to be “sufficiently weighty to justify
some limitations in certain circumstances on the general right of
access to court proceedings”. Cianfrani, 573 F.2d at 856-57
(ordering pretrial hearings closed to public to extent reasonably
necessary to protect against disclosure of unlawfully intercepted
communications). See also In re Grand Jury, 111 F.3d 1066, 1074-75
(3d Cir. 1997) (privacy interests protected by Federal Act confer
standing on wiretapping victims to quash subpoena duces tecum
served on interceptor, who was a witness in grand jury
investigation in which one of wiretapping victims was target).
In short, the United States and Texas have a substantial
interest in protecting the confidentiality of private wire, oral,
and electronic communications.
b.
And, that substantial interest is unrelated to the suppression
of free expression. The use and disclosure proscriptions are
directed only at the means by which information is acquired. They
apply only if the targeted actor knows, or has reason to know, of
the illegal means of acquisition. And, they do not prohibit use
and disclosure of the information contained in illegal
interceptions if such information is obtained from another source.
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Indeed, protection of communications’ confidentiality encourages,
rather than suppresses, free expression, because the proscriptions
against interception, use, and disclosure offer assurance to
communicating parties that they can speak freely.
c.
To satisfy the requirement that the incidental restriction on
First Amendment freedom is no greater than essential to furtherance
of the governmental interest, “a regulation need not be the least
speech-restrictive means of advancing the Government’s interests.
Rather, the requirement of narrow tailoring is satisfied so long as
the regulation promotes a substantial government interest that
would be achieved less effectively absent the regulation”. Turner,
512 U.S. at 662 (internal quotation marks and citations omitted).
“Narrow tailoring in this context requires ... that the means
chosen do not burden substantially more speech than is necessary to
further the government’s legitimate interests”. Id. (internal
quotation marks and citation omitted).
The use and disclosure proscriptions do not burden
substantially more speech than is necessary to further governmental
interests in protecting the privacy of communications. Those
interests would be achieved less effectively in the absence of such
proscriptions, because the invasion of privacy that occurs with
interception does not then end, but continues anew and spreads with
each disclosure or other use of the interception.
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Prohibiting interception alone is not sufficient to protect
the privacy of communications. Without the use and disclosure
proscriptions, government’s efforts to prohibit interception would
be far less effective, because a person who illegally intercepts a
conversation and wishes to disclose it to the public can do so, at
no risk to himself, by simply anonymously providing the contents of
the communication — by use of a tape or otherwise — to third
parties, such as the media, who have an interest in disclosing, or
otherwise using, those contents (as in Bartnicki). Moreover, far
greater damage to the interests sought to be protected results if,
and when, such contents are paraded before the public through use
and disclosure by non-interceptors, including the media.
See Boehner, 191 F.3d at 468, 470.
In sum, as applied to the facts in this case, including
defendants’ knowing or having reason to know the interceptions were
illegal (to include their participation concerning the
interceptions and their possible “procures” or “obtains”
violations), the use and disclosure provisions of the Federal and
Texas Acts satisfy intermediate scrutiny, because: they further
substantial governmental interests in protecting the
confidentiality of private communications; those interests are
unrelated to the suppression of free expression, but instead
encourage it; and the incidental burdens on free expression are no
greater than is essential to the furtherance of those interests,
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which would be achieved far less effectively in the absence of the
proscriptions.
E.
We reject defendants’ alternative contention that the summary
judgment should be affirmed because the Federal and Texas Acts are
unconstitutionally vague and overbroad.
1.
The use and disclosure provisions give adequate notice of the
conduct they prohibit, and are “not so vague that men of common
intelligence must necessarily guess at [their] meaning”. Broadrick
v. Oklahoma, 413 U.S. 601, 607 (1973) (internal quotation marks and
citation omitted). As Riggs admitted in his deposition, there was
nothing in the amended legislation that was vague or ambiguous;
instead, Watler simply “missed the new legislation”. Accordingly,
if defendants misunderstood their legal obligations, it was because
they and their attorney were unaware of the Acts’ terms, not
because they were vague. Defendants’ contention that the
distinction between “use” and “disclose” is unclear carries very
little weight; each is subject to the same proscriptions and
exceptions, and triggers the same penalties.
2.
The Acts are not unconstitutionally overbroad, because they do
not sanction a substantial amount of constitutionally protected
speech. The use and disclosure proscriptions do not prohibit such
80
conduct for information obtained by means other than illegal
interceptions. And, the scienter requirements ameliorate the
possibility that the prohibitions will result in chilling a
substantial amount of protected speech.
F.
As noted, under the statutory exclusionary rule, § 2515,
contents of illegally intercepted communications, as well as
evidence derived therefrom, are not admissible in “any trial” if
disclosure would violate the Federal Act. The Peavys contend the
district court erred, in conjunction with the cross motions for
summary judgment, by denying their motion to suppress the contents
of the interceptions and evidence derived therefrom, and by
allowing defendants to use such evidence to attack the Peavys’
character and defend against their state law claims, as well as to
support their (defendants’) affirmative defenses.
In the light of our disposition of the other issues, we need
not address this issue. The suppression motion ruling was only for
summary judgment purposes. The district court has had no occasion
to consider admissibility vel non of such evidence for trial.
III.
For the foregoing reasons, we AFFIRM the summary judgment
insofar as it (1) dismissed the Peavys’ claim for damages, under
the Federal Act, for defendants’ “procuring” the Harmans to make
the interceptions, and (2) held, for contexts other than for their
81
television broadcasts, that, in violation of the Federal and Texas
Acts, defendants “used” and “disclosed” the contents of the
intercepted communications; REVERSE the summary judgment insofar as
it (1) applied strict scrutiny and (2) held that the First
Amendment precludes, under the Federal and Texas Acts, holding
defendants civilly liable for “use” and “disclosure”; VACATE the
summary judgment insofar as it (1) held that, under the Federal
Act, defendants had not “procured” the Harmans to make the
interceptions (this being a separate issue from the correct
dismissal of the procurement action for damages), (2) dismissed the
Peavys’ claim, under the Texas Act, for so “obtaining” the Harmans,
(3) dismissed the Peavys’ claim, under Texas law, for civil
conspiracy, and (4) held that, in violation of the Federal and
Texas Acts, defendants, in their television broadcasts, “disclosed”
the contents of the interceptions; and REMAND for further
proceedings consistent with this opinion.
AFFIRMED in part; REVERSED in part;
VACATED in part; and REMANDED
82