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1 IN THE SUPREME COURT OF THE UNITED STATES

2 - - - - - - - - - - - - - - - x

3 GLORIA BARTNICKI AND :

4 ANTHONY F. KANE, JR., :

5 Petitioners :

6 v. : No. 99-1687

7 FREDERICK W. VOPPER, : No. 99-1728

8 AKA FRED WILLIAMS, ET AL.; :

9 :

10 and :

11 :

12 UNITED STATES, :

13 Petitioner :

14 v. :

15 FREDERICK W. VOPPER, :

16 AKA FRED WILLIAMS, ET AL. :

17 - - - - - - - - - - - - - - - x

18 Washington, D.C.

19 Tuesday, December 5, 2000

20 The above-entitled matter came on for oral

21 argument before the Supreme Court of the United States at

22 11:03 a.m.

23 APPEARANCES:

24 JEREMIAH A. COLLINS, ESQ., Washington, D.C.; on

25 behalf of the Private Petitioners.

1

1 SETH P. WAXMAN, ESQ., Solicitor General, Department

2 of Justice, Washington, D.C.; on behalf of

3 Petitioner United States.

4 LEE LEVINE, ESQ., Washington, D.C.; on behalf of

5 Respondents Vopper, et al.

6 THOMAS C. GOLDSTEIN, ESQ., Washington, D.C.; on

7 behalf of Respondent Yocum.

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1 C O N T E N T S

2 ORAL ARGUMENT OF PAGE

3 JEREMIAH A. COLLINS, ESQ.

4 On behalf of the Private

5 Petitioners 4

6 ORAL ARGUMENT OF

7 SETH P. WAXMAN, ESQ.

8 On behalf of the Petitioner

9 United States 16

10 ORAL ARGUMENT OF

11 LEE LEVINE, ESQ.

12 On behalf of the Respondents

13 Vopper, et al. 25

14 ORAL ARGUMENT OF

15 THOMAS C. GOLDSTEIN, ESQ.

16 On behalf of Repondent

17 Yocum 38

18 REBUTTAL ARGUMENT OF

19 SETH P. WAXMAN, ESQ.

20 On behalf of the Petitioner

21 United States 52

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1 P R O C E E D I N G S

2 [11:03 a.m.]

3 CHIEF JUSTICE REHNQUIST: We'll hear argument

4 next in Number 99-1687, Gloria Bartnicki and Anthony Kane

5 v. Frederick Vopper.

6 Mr. Collins.

7 ORAL ARGUMENT OF JEREMIAH A. COLLINS

8 ON BEHALF OF PRIVATE PETITIONERS

9 MR. COLLINS: Mr. Chief Justice and may it

10 please the Court:

11 In a society that values personal freedom and

12 autonomy, there is a vital interest in securing the

13 ability of individuals to exclude unwanted intruders from

14 their private activities. And where the private activity

15 consists of speech there is a particularly vital interest

16 in preventing intrusion so that individuals may conduct

17 their private communications freely and securely. And for

18 that reason, Congress and the legislatures of virtually

19 every state in this country have made it unlawful to gain

20 access to a private communication.

21 QUESTION: Well, let me stop you right there and

22 ask you why should the question of whether private

23 information about someone is published turn on how the

24 information was obtained? Why don't you just look at what

25 it is and focus there? Why does it become secondarily

4

1 such an important interest to focus on how it was

2 obtained?

3 MR. COLLINS: Because I think Justice O'Connor

4 what Congress and the state legislatures and in some

5 respects the common law have recognized that separate and

6 apart from the question about whether there is certain

7 information that is so private that it should or shouldn't

8 be revealed which raises content discrimination problems

9 among other things, there is a vital interest in people

10 having private places in their lives where a stealthy

11 intruder cannot come in whether or not the individual --

12 QUESTION: Well -- well, it ought to turn on the

13 public significance perhaps of the information and

14 presumably the state can prevent unlawful tapping of wires

15 directly and get at the bad actor, but why should it

16 extend to the subsequent user who didn't do anything

17 wrong?

18 MR. COLLINS: Because Your Honor, as Congress

19 and some forty states have reasoned, if there is intrusion

20 into an individual's private communications, a tap, a bug,

21 a scanner, whatever, and then what is obtained is

22 broadcast to all the world or under these statutes

23 exploited in any other way, the same interests that are

24 harmed by the initial intrusion are harmed again and all

25 the more severely because in essence, you have invited in

5

1 this instance a hundred thousand people to eavesdrop, and

2 as petitioner Bartnicki stated in her deposition, when

3 she, having no idea that anyone had intruded into her

4 communication with Mr. Kane, when she heard on the radio

5 it being broadcast she felt that she had been violated in

6 front of a hundred thousand people and that is true I

7 believe independent of the content. If I, riding home

8 today, hear a radio station broadcasting a conversation

9 where I convey my grocery list to my wife or vice versa, a

10 feel a violation of my person autonomy. Just as if someone

11 --

12 QUESTION: But you want to say that if I also

13 hear that and tell my wife that I'm committing a crime.

14 That's what this statute says.

15 MR. COLLINS: If you --

16 QUESTION: Because the statute goes downstream

17 without end. Now maybe there'll be some creative

18 suggestion for when it's in the public domain or something

19 like that. But that's not what the statute says.

20 MR. COLLINS: Well, the far downstream uses are

21 not at issue --

22 QUESTION: Oh, but it seems to me with all

23 respect that they are because the respondents can raise

24 those issues on an overly-broad statute under the

25 Thornhill doctrine even if this does not apply to them.

6

1 MR. COLLINS: Well they -- I think Your Honor,

2 first of all they can't raise it when they they've brought

3 explicitly an as-applied challenge and at no point in the

4 litigation until this Court have they started raising the

5 other applications that they now posit, and secondly this

6 Court in The Florida Star and all the preceding case

7 emphasize that in the very difficult area and it is

8 difficult of conflicts between privacy-type interests and

9 First Amendment interests the Court should decide only as

10 much as it needs to decide in a particular case.

11 QUESTION: I suppose it's very difficult, is it

12 not, to enforce the prohibition against wire tapping

13 against the person who actually -- who actually does the

14 tapping. In other words, that person is usually not going

15 to come to light or publicize the thing. The way that

16 person does the work is to push it on to somebody else who

17 will do the disclosure.

18 MR. COLLINS: That is certainly true in this

19 very case --

20 QUESTION: Which is what happened here, right?

21 MR. COLLINS: That's what happened in this case.

22 QUESTION: An anonymous tape was sent to the

23 radio station which is almost always the way it will

24 happen.

25 MR. COLLINS: And Congress -- that is what

7

1 happened in this case and Congress was told in both 1968

2 and '86 that it happens very frequently. I think --

3 QUESTION: Well, let's change the facts just a

4 little bit. Suppose what the conversation revealed was

5 not some conversation about we're going to have to commit

6 some violent acts but let's suppose it revealed that in

7 fact, a murder had been committed because of this very

8 situation. And the anonymous tape then is passed on to

9 the police and your going to punish the person who passed

10 on that tape when a very serious crime has been committed.

11 Now how is the public interest served by that?

12 MR. COLLINS: Your Honor, I believe the same --

13 I think there are two responses to that.

14 QUESTION: Oh, I actually had that very

15 situation as a trial court judge in a murder case. I had

16 a hard time understanding how the public interest was

17 served by punishing the person who passed on the

18 information.

19 MR. COLLINS: I think there are two responses to

20 the question, Your Honor. The first is there is in the

21 law, as the Government's reply brief points out a doctrine

22 of necessity which in some narrow circumstances, and it's

23 not precisely clear how far it extends, in essence

24 privileges what would otherwise be a violation of a

25 statute. If the statute doesn't rule that defense out.

8

1 So an action to protect life and limb may be an exception.

2

3 The second answer though, is that -- because it

4 is a very hard question, but there are -- when there are

5 content-neutral laws that say that because of the way in

6 which information came to someone, that information is not

7 to be revealed be it these statutes or be it for example a

8 protective orders in the Seattle Times, that generally the

9 fact that what was revealed is a matter of public

10 importance does not automatically say that the interests

11 that are being served by the content-neutral law that says

12 either you should not have this information at all or you

13 should not be able to use it, they don't necessarily give

14 way. And that's indeed if this exact tape had been

15 received in discovery I believe under Seattle Times the

16 press could again be prevented from making use and

17 publishing the tape. And the key is that --

18 QUESTION: Well, but in Seattle Times and

19 Rhinehart and in the Aguilar case, we were controlling the

20 people who received the information under a court order.

21 They were within our immediate control. The Rhinehart

22 case would be as if somebody surreptitiously took this

23 tape and gave if to a person and then that person gave it

24 to the newspapers.

25 MR. COLLINS: But in both instances, though,

9

1 Justice Kennedy, we are saying that a person has

2 information, it is of public importance, and because of

3 interest bound up in the way in which they received it, we

4 will not allow them to distribute. The interests are

5 different granted. And the Court did not say in Seattle

6 Times that the fact that this information is coming in

7 discovery means there is no First Amendment concern.

8 Quite the contrary. The Court said the Court has to

9 conclude that there will be harm to privacy interests and

10 the like if it is disclosed and the Court applied

11 intermediate scrutiny. But the Court said that because of

12 interests of the justice system that are served by being

13 able to limit disclosure of that which is given in

14 discovery we can tolerate the fact that the press cannot

15 tell the public something of great importance.

16 Here we again have very vital interests,

17 different interests, but the interests of people knowing

18 that they will not come home some day and have a hundred

19 thousand people hearing a phone call that they made. And I

20 submit that what unites those cases and in essense solves

21 the problem here is the fact that we're dealing with a

22 totally content-neutral statute and one which as applied

23 does not unduly interfere with the ability of the press --

24 QUESTION: But merely because it's content-

25 neutral does not mean you can regulate it. This isn't

10

1 seditious. It isn't obscene. And there is no category

2 that I know of which allows you to regulate it. It's

3 intercepted which is now going to be a new category under

4 your rule and there is no precedent for that.

5 MR. COLLINS: Your Honor, I don't know of any

6 case in which this Court has struck down a statute which

7 is content-neutral in the full sense that this one is

8 except in some rare circumstances where the Court in

9 essence has determined that too much speech is going to be

10 supressed. In other words, we are not saying, we don't

11 have to say, that some of this is a category of speech of

12 no First Amendment significance whatsoever. What we are

13 saying is that there are important governmental interests

14 harmed not only by the interception but by the disclosure.

15

16 If those are then taken into account through a

17 content-neutral statutory regime, we believe and we have

18 argued that that in essence exhausts the First Amendment

19 concerns both as to level of scrutiny and as to satisfying

20 scrutiny as long as we are not in one of the rare

21 situations such as City of Ladue, for example, where the

22 Court would say granted it's content-neutral, but you're

23 just restricting too much speech and we think in this case

24 the question would be, the concern about whether this

25 content-neutral law -- and let me just pause for a moment

11

1 because I think it's essential to emphasize when I say

2 content-neutral this law is neutral in a way that

3 absolutely requires a determination of content neutrality.

4 It's neutral as to viewpoint. It's neutral as to subject

5 matter. It doesn't allow liability to turn on

6 disagreement with a particular message. It doesn't even

7 target speech specifically. It targets all uses of what

8 has been unlawfully intercepted, so there is no case in

9 this Court that would characterize this law as content-

10 based.

11 QUESTION: Is this an as-applied challenge in

12 this suit --

13 MR. COLLINS: Absolutely.

14 QUESTION: -- or is it attacking it facially?

15 MR. COLLINS: It's as applied, Your Honor. And

16 that's clear in the question certified in the court of

17 appeals. It's clear in the briefs below. And it's clear

18 from the fact --

19 QUESTION: Well, would there be a difference on

20 an as-applied challenge if the person you're talking about

21 is the person who made the wrongful tapping as opposed to

22 the person who just passes it on?

23 MR. COLLINS: Well, certainly, the question in

24 this case is properly presented as to whether the statute

25 can apply to those who are not involved in the

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1 interception.

2 QUESTION: Well would it matter if it's a

3 newspaper at the end of the day commenting on the

4 information that's been disclosed? Does that alter the

5 result?

6 MR. COLLINS: We submit that it does not for two

7 reasons. That first of all, there is -- we are applying a

8 content-neutral statute based on important government

9 interests and secondly -- and I do think this is critical,

10 we then have to ask ourselves is this one of the very rare

11 cases in this Court's jurisprudence where one would say

12 that even though a statute is totally neutral, doesn't

13 lend itself to Government thought control, to supression

14 of ideas in any way, it's not reshaping public debate,

15 totally neutral, does it in some way restrict too much

16 speech? And one area where one would worry is, does it

17 prevent the press from doing what it needs to do? We

18 believe this is not such a narrow -- one of those rare

19 situations because as the Court says Branzburg --

20 QUESTION: Although this had to do with

21 negotiations, did it not with a public school board in a a

22 labor union context, you don't think that's sufficiently

23 important to warrant newspaper discussion of it?

24 MR. COLLINS: We don't deny that matters of

25 public concern are involved. What we say is that under

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1 Branzburg, for example, the Court says that we know the

2 press could get important information of public concern

3 through wire tapping. We know the press could get

4 important information of public concern by having a system

5 of private informants. We say to the press, you cannot do

6 that. Even if you know that behind that wall is someone

7 communicating matter of utmost public importance, you

8 can't pierce that wall. So why then is it crucial to the

9 press to say we can't ourselves go out and try to obtain

10 this information of public concern through wire tapping

11 but if serendipitously some third person has done it, it's

12 vital us to be able to then use the information. And even

13 the amici, Your Honors, do not submit --

14 QUESTION: Well, the difference is in one case

15 they're acting unlawfully and in the other case they have

16 information that they just came across because someone

17 else acted unlawfully and that'd be a big difference?

18 MR. COLLINS: I think in the final analysis, no,

19 Your Honor, because as I understand Florida Star and this

20 Court's jurisprudence, the question here is whether there

21 are sufficient Government interests to justify a content-

22 neutral application of these laws in this manner. It's

23 not a question of is the press a bad actor or not to be

24 punished. One has to be concerned undoubtedly will the

25 press, by the rule that we advocate, be chilled from

14

1 performing its function and we argue no because as we have

2 briefed the way that the reason to factor can be construed

3 under this statute, but I don't think that the proper

4 analysis of the issues here can ultimately turn simply on

5 did the press violate a law when they received the

6 information or not, otherwise of course Congress could

7 take a jab with the pen and say, oh, and also it's illegal

8 -- to be receiving any that has been intercepted.

9 QUESTION: Mr. Collins, may I ask you if I

10 understand your First Amendment boundaries theory

11 correctly, that Pentagon Papers which was a prior

12 restraint case, if Congress so provided, the Times or

13 anybody else who published the materials could after the

14 publication be held responsible in money damages.

15 MR. COLLINS: Possibly, Your Honor, but Pentagon

16 Papers would be different not only for the reason you gave

17 but because it's arguably content-based. It's the

18 Government itself determining what information by subject

19 matter --

20 QUESTION: A general statute.

21 MR. COLLINS: Well if it applied to -- but it

22 wouldn't be general because it's by definition talking

23 only about Government information which is arguably a

24 content base.

25 QUESTION: Yes.

15

1 MR. COLLINS: And it runs -- there you do get

2 into of the risk of shaping debate.

3 QUESTION: Thank you, Mr. Collins.

4 General Waxman, we will hear from you.

5 ORAL ARGUMENT OF SETH P. WAXMAN

6 ON BEHALF OF PETITIONER UNITED STATES

7 GENERAL WAXMAN: Mr. Chief Justice and may it

8 please the Court:

9 I think perhaps I'll -- I've had enough

10 questions in the first 15 minutes to keep me fully

11 occupied --

12 QUESTION: So you don't want anymore.

13 (Laughter.)

14 MR. WAXMAN: I would welcome any and all

15 questions as always. I want to start first by -- I do

16 want to address the Pentagon Papers point and the point

17 that Justice Kennedy made about using information obtained

18 on the radio to talk with his own wife or make his own

19 decisions and Justice O'Connor's question about what

20 difference does it make how get it. I first want to make

21 the point because there is been some suggestion I think

22 here that it is the Government's position that the First

23 Amendment does not -- the First Amendment interests here

24 don't require heightened scrutiny. That's not our

25 position. We do recognize that there is an important

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1 burden on First Amendment rights here, but we submit that

2 the appropriate level of scrutiny is intermediate-level

3 scrutiny because this is a totally content-neutral law of

4 general applicability that protects fundamental values of

5 privacy and private speech and denies third parties

6 nothing that they otherwise would have had if the act's

7 prohibition on interception itself was fully effective --

8

9 QUESTION: General, isn't the problem with the

10 easy analogy to the other intermediate-scrutiny cases that

11 here there in effect is a complete suppression of speech,

12 whereas in the paradigmatic intermediate-scrutiny cases,

13 somebody can speak somewhere, sometime. O'Brien can tell

14 what he thinks about the draft without burning his card,

15 you can speak at some other time or some other place in

16 the time, place, and manner cases. That's not so here.

17 MR. WAXMAN: Well, I think that is so here, and

18 I also think that that is not an accurate characterization

19 of all the intermediate-scrutiny cases. I mean, it was

20 not true, for example, in Cohen v. Cowles Media or in

21 Zacchini and Harper & Row.

22 QUESTION: But you also and I think you're right

23 there but you also had a very different kind of general

24 statute in Cohen and Cowles --

25 GENERAL WAXMAN: That's exactly right and that's

17

1 --

2 QUESTION: In contract law and not speech law.

3 GENERAL WAXMAN: Right. And that's why --

4 that's why we think that unlike Cohen v. Cowles Media

5 where the Court applied no heightened First Amendment

6 scrutiny and the dissenters objected on that ground, we

7 think that heightened scrutiny is appropriate here,

8 because there is a restraint on speech. But it is not a

9 restraint on -- with respect to any topic, any viewpoint,

10 any speaker. If these -- anybody who gets wire tapped

11 information or information from a bug planted in my home

12 or my conference room -- gets the information otherwise,

13 the identical information is fully available for speech or

14 other use. In other words, what's missing here --

15 QUESTION: Well, it may be it, it may not be

16 depending on other circumstances, but, I mean, there is no

17 question that if we didn't have the neutrality that you

18 emphasize this would be a much easier case. It's still

19 true that when you do the balancing, whether you call it

20 intermediate scrutiny or you figure out some other level

21 to put it on, you're -- what you've got to balance is that

22 if this law is good, then the disclosure which apparently

23 has no other source of information which is of concern to

24 the public is absolutely forbidden and we've got to accept

25 that as one of the prices that will be paid. Maybe as you

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1 say not in every case but it will be paid if the statute

2 is going to be enforced across the board.

3 GENERAL WAXMAN: That is absolutely true and

4 that is why heightened scrutiny applies. It is our

5 submission that it's significant that if the same

6 information comes from any other source, it can be used or

7 disseminated with impunity which is another way I think,

8 of what I'm trying to suggest, which is that there is no

9 suggestion here, unlike the Pentagon Papers case, or the

10 Florida Star line of cases of a censorial motive by the

11 Government, an effort to take certain facts off the table,

12 and the reason that the --

13 QUESTION: Yeah, yeah, but -- to say that we've,

14 as your colleague did, it's very rare to strike down

15 statutes that are content-neutral. That's not accurate.

16 Miami Press v. Tornado, the reply statute case -- taxes on

17 newspapers are content-neutral, the parade cases are

18 content-neutral. What you're doing here is you're

19 suppressing speech that is valuable to the public.

20 GENERAL WAXMAN: Justice Kennedy, I'm not

21 suggesting that we win because intermediate-level scrutiny

22 applies. I have three reasons that I'd like to articulate

23 why we think we do, but I certainly acknowledge the fact

24 that the -- a restriction on speech under intermediate-

25 level scrutiny may fail just as heightened scrutiny like

19

1 in cases like Bursen v. Freeman and Austin v. Michigan

2 Chamber of Commerce can sometimes prevail. My point here

3 is, and this goes to the distinction with the Pentagon

4 Papers case and I think to Justice O'Connor's initial

5 question about why we should care how the information came

6 to be, is that the knowing use of illegally intercepted

7 private expression implicates other constitutional values

8 as this Court recognized in Cox and Florida Star and in

9 particular the distinction between information that is

10 leaked from the Government or otherwise that is leaked as

11 the result of a failure of a trusted responsibility, which

12 was at issue in Florida Star and perhaps at issue in

13 Landmark and certainly was at issue in the Pentagon Papers

14 case, where this Court has said repeatedly that in that

15 instance, where we're talking about information that was

16 not unlawfully obtained, but instead was disclosed to the

17 public as a result of a failure of a trust relationship,

18 there is quote, almost -- there are almost always less

19 drastic means of resolving the problem, both because you

20 can be more careful about who you trust, and secondly,

21 there is a much smaller universe of potential violators.

22 Here we're talking about an interception which almost by

23 definition is impossible of detection. People don't even

24 know that their conversations at home or at work are being

25 overheard, let alone who did it and this case is a perfect

20

1 --

2 QUESTION: My problem is that in order to make

3 this -- no one questions, we can assume that, that you can

4 punish the interceptor, but what you're doing is you're

5 taking a class of speech and saying this is now tainted

6 speech and it can't be repeated by anybody. And there is

7 simply no precedent for that in the cases of this Court.

8 MR. WAXMAN: Well, I don't think -- I do

9 understand your point Justice Kennedy, I would quarrel

10 with your characterization of this as tainted speech that

11 you can't do anything about. Again, because it doesn't

12 look at the topic or the subject or anything. It simply

13 says that if you know that this is the result of an

14 illegal intrusion into a zone of conversational privacy,

15 you cannot use it until it becomes publicly known. And I

16 also -- I'm not sure that it is fair to say that there is

17 no precedent for taking speech like this off the table. I

18 think we have talked about Seattle Times and Cowles and

19 Harper & Row and Zacchini but there is also the San

20 Francisco arts case involving use of the word Olympic.

21 There is trade secret law which relates to fact and not

22 expression. There are grand jury secrecy rules and rules

23 under the Conic Pickering test about what employers --

24 QUESTION: May I ask you a question?

25 MR. WAXMAN: -- and employees may or may not

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1 say.

2 QUESTION: Mr. Solicitor General, the strongest

3 argument that I think Judge Pollack made in his dissent is

4 that you want to dry up the market for this sort of thing

5 so you get -- just sort of like child pornography and the

6 majority said, well, there's really no evidence that this

7 will accomplish that goal. And I would kind of like you

8 to comment on that because it does seem to me that an

9 awful lot of this illegal activity will continue to go on

10 by people who just use it for their own private illicit

11 purposes no matter whether you apply this particular rule.

12 And I think the scarcity of cases suggest that enforcing

13 this rule really would not do very much to dry up the

14 market but maybe you'd comment on that.

15 MR. WAXMAN: Well, I think that that's wrong;

16 that is the scarcity of cases shows it because if you look

17 at the cases, for example, that are reprinted in the

18 appendix to our reply brief and in respondent Vopper's

19 brief, a very large number of those cases involved use --

20 at least if you take out the marital cases -- involved

21 use by third persons, and the deterrence or disincentive

22 point which is one of the three points that we make

23 support the importance of the use and disclosure

24 provisions as a means of protecting conversational

25 privacy, I think, depends just by the way just as the

22

1 statute's exclusionary rule in 2515 does, it depends on

2 the -- the common sense point that if you prohibit all

3 means of exploiting stolen information, whether they are

4 expressive means or not, you will lessen the incentive

5 materially for many people to engage in the interception.

6 Now, it's true there will be people who as a hobby just

7 like to eavesdrop or intercept other people's

8 conversations and the use --

9 QUESTION: General Waxman, what about the

10 situation, this is broadcast over a radio station in

11 Wilkes-Barre, as I understand it. Now supposing the

12 Wilkes-Barre newspaper wants to do a story about the fact

13 that this was broadcast, how far down the line does it go?

14 MR. WAXMAN: Well, we think, as we indicate in

15 our brief that both the meaning of the word disclose which

16 is in the statute and the legislative history demonstrates

17 that the statute no longer applies once it is public

18 information or common knowledge. And we also think -- we

19 also think that -- well, that's our answer with respect to

20 how far it goes, and it would also be an answer to Justice

21 Kennedy --

22 QUESTION: I can't tell my next door neighbor?

23 MR. WAXMAN: Excuse me?

24 QUESTION: If I innocently hear this tape, and

25 I'm the second one to hear it, but I just hear it at

23

1 Yocum's house, then I can't tell my neighbor?

2 MR. WAXMAN: That's the -- the statute precludes

3 that use of it. It's not addressed in this case, but the

4 statute precludes all use of it. Now --

5 QUESTION: I wouldn't think of doing --

6 MR. WAXMAN: Now, if there was --

7 QUESTION: I wouldn't think of doing that, of

8 course, if somebody sent me a tape that I knew had been

9 illegally taken, I certainly wouldn't run around talking

10 to people about it. That doesn't seem to be so

11 outrageous.

12 MR. WAXMAN: Well I -- there has never been a

13 case, a reported case which is --

14 QUESTION: And Justice Kennedy lives in my

15 neighborhood, too.

16 MR. WAXMAN: There has never been a reported

17 case in which there was either a prosecution or a civil

18 suit brought here, and of course the plaintiffs in this

19 case did not sue the school board members that were told

20 about it. But the point it seems to me, is that what

21 Congress was trying to protect here was not private facts

22 and not to restrain speech on its own, but to protect the

23 sanctity of what we all know to be critical to our

24 society, which is the ability to speak in an uninhibited

25 candid fashion. May I reserve the balance of my time.

24

1 QUESTION: You may. Mr. Goldstein.

2 MR. LEVINE: Mr. Levine, Your Honor.

3 QUESTION: Mr. Levine, I'm sorry.

4 ORAL ARGUMENT OF LEE LEVINE

5 ON BEHALF OF RESPONDENTS VOPPER, ET AL.

6 MR. LEVINE: Mr. Chief Justice, and may it

7 please the Court:

8 Respondents are before the Court this morning

9 because they disseminated to the public the contents of a

10 telephone conversation in which the president of a public

11 teacher's union apparently threatened to blow off the the

12 front porches of the homes of members of the local school

13 board. Petitioners contend that such an act of pure

14 speech is not protected by the First Amendment because

15 that information was at some prior time unlawfully

16 acquired by someone else.

17 QUESTION: Well, I think -- I think that the

18 other side would have acknowledged that if it was indeed

19 it was a clear threat to blow off somebody's porches there

20 might have been an exception to the statute. I don't want

21 to decide this case on the assumption that this was a

22 threat to blow off somebody's porch. It's at least

23 ambiguous in the record and if all you want is a decision

24 that you can disseminate it if it's a threat to blow off

25 somebody's porch, I'll give you that, that's an easy case.

25

1 But you want us to go beyond that and you want us to say

2 even if it wasn't a threat to blow off somebody's porch,

3 it can't be disseminated; isn't that correct?

4 MR. LEVINE: So long as --

5 QUESTION: Okay. So let's forget about blowing

6 up the porch.

7 MR. LEVINE: Your Honor, I --

8 QUESTION: Well, I think your argument is that

9 blowing off -- the willingness to blow off porches is a

10 matter of some public concern in viewing the labor crisis.

11 MR. LEVINE: That is correct, Your Honor, and

12 that is why I gave the context to explain why this speech

13 that was disseminated by the respondents here was truthful

14 and involved a matter of public concern.

15 QUESTION: Now, I don't understand there to be

16 any exception in the statute for speech that threatens to

17 blow off somebody's porch.

18 MR. LEVINE: That is correct Justice Stevens.

19 On its face, the statute applies to any information

20 concerning the content of an intercepted communication.

21 And content is defined in the statute as any information

22 concerning the substance, purport or meaning of that

23 communication.

24 QUESTION: And you would be content for a

25 holding that says that a statute that does not contain

26

1 such an exception is unconstitutional; is that what you're

2 asking us for?

3 MR. LEVINE: I'm asking Your Honors to apply the

4 principle.

5 QUESTION: You want us to decide this case on

6 the basis that this statute does not have any exception

7 for threatened criminal action?

8 MR. LEVINE: No, Your Honor.

9 QUESTION: I didn't think so.

10 MR. LEVINE: The except -- what it doesn't have

11 an exception for, Your Honor, is the dissemination of

12 truthful speech about a matter of public concern.

13 QUESTION: You really don't care whether you win

14 or not, you just want to win on the right grounds, is that

15 what you want?

16 MR. LEVINE: Your Honor, I'll take it any way I

17 can get it.

18 QUESTION: I'm sure.

19 QUESTION: Well then stop giving out your case.

20 MR. LEVINE: But the principle that we're

21 advocating because it derives from this Court's case law

22 is the Daily Mail principle. And the Daily Mail principle

23 holds that where, as here, a speaker has lawfully acquired

24 the information he disseminates and that information is

25 accurate and involves a matter of public concern, his

27

1 speech is protected by the First Amendment, absent a

2 demonstrated need to vindicate an interest of the highest

3 order.

4 QUESTION: Why isn't my ability to speak over

5 the phone with some assurance of confidentiality an

6 interest of the highest order. I mean you have speech

7 involved on both sides of this bear in mind. That to the

8 extent the position you urge renders the enforcement of

9 the criminal prohibition against intercepting my telephone

10 conversations less effective. It inhibits my speech. And

11 indeed it does. I mean I don't use my home -- what is it

12 it-- wire free phone --

13 THE SPEAKER: Cordless.

14 QUESTION: -- whenever I talk to anything

15 involving the court, because, you know, I don't know, I

16 don't know who is picking it up. And you're saying it's

17 perfectly okay for somebody not only to pick it up but to

18 publish it in the Washington Post so long as, you know, so

19 long as they didn't actually do the tap, just make a tape

20 and mail it to the Post.

21 MR. LEVINE: Your Honor, let me make clear it is

22 not perfectly okay to pick it up. That is violated by the

23 statute.

24 QUESTION: No, it is perfectly okay to give the

25 person who picked it up exactly what that person wanted,

28

1 that is, dissemination of my private conversations. I --

2 you enable the criminal to achieve the object of his

3 criminality.

4 MR. LEVINE: And Your Honor, if there was any

5 act of collaboration between the criminal and the fence,

6 as has been called in some amicus briefs, then that person

7 may be held liable for his own conduct.

8 QUESTION: There is no collaboration but this is

9 an essential instrument for the criminal's achieving what

10 he wanted to achieve. And that is disseminate to the

11 world information which he has unlawfully obtained. It

12 doesn't seem me unreasonable for the Government to say no,

13 we're not going to let the criminal get the advantage of

14 his criminality. We do the same thing where the highest

15 function of Government of all is involved, the criminal

16 law. We prevent information from being introduced, even

17 told to the jury when it has been obtained illegally. I

18 find it --

19 MR. LEVINE: Justice Scalia, I'm not suggesting

20 that it's not unreasonable, but that's not the standard

21 when you're talking about prohibition on the dissemination

22 of truthful speech about a matter of public concern.

23 QUESTION: Well, Mr. Levine, you agree that

24 there is an exception for matters of the highest priority.

25 How about our decision in Hill against Colorado last year,

29

1 which involved, you know, protected speech on one hand but

2 said nonetheless the state could permit a strong interest

3 in privacy to triumph.

4 MR. LEVINE: Your Honor, Hill versus Colorado

5 was a time, place or manner restriction, and the court,

6 because of that properly analyzed the case under

7 intermediate scrutiny. This case is controlled by the

8 Daily Mail principle. This statute, unlike the one at

9 issue in the Hill v. Colorado case, is a direct

10 prohibition of speech itself. It is not a time, place or

11 manner restriction. It is not a regulation of conduct that

12 has --

13 QUESTION: Well, it may nonetheless deserve

14 intermediate scrutiny because of its content neutrality.

15 MR. LEVINE: Your Honor, I don't believe that

16 content neutrality is a factor when you're talking about

17 application of the Daily Mail principle.

18 QUESTION: Do you lose if intermediate scrutiny

19 is applied?

20 MR. LEVINE: No, your Honor, we do not. The

21 statute does not even survive intermediate scrutiny. And

22 in that regard, let me get to a point that both Justice

23 Scalia and the Chief Justice made earlier. This notion of

24 the laundering rationale somehow being enough to make the

25 statute survive intermediate scrutiny. That rationale, we

30

1 submit, is not persuasive when you're talking as we are

2 here about matters of public concern. In the Internet

3 age, an interceptor doesn't need the press to disseminate

4 anonymously information to a mass audience. Even if he

5 did, there is no evidence that that provides that person

6 with an incentive to intercept in the first place,

7 especially where, as in this case money does not drive the

8 market hypothesized by the petitioner. There may well be

9 the occasional case in which an anonymous interceptor

10 gratuitously throws the contents of an intercepted

11 communication over the transom, but there is no evidence

12 that this is a systemic problem or that --

13 QUESTION: Well, something like that happened

14 here, didn't it? I mean there is an anonymous interceptor

15 who gave if to a radio station.

16 MR. LEVINE: But Your Honor, there is no

17 evidence that the identity of the interceptor in this case

18 could not have been uncovered.

19 QUESTION: Well, I presume that the Government

20 ought to have some presumption. They are saying that it's

21 very -- they enforce these laws. They are just saying

22 it's just very difficult to find this person, the initial

23 interceptor.

24 MR. LEVINE: Your Honor, that is, with all due

25 respect to the Government, purely conjecture. There is

31

1 nothing in the legislative history to support that. The

2 scores of prosecutions under the Acts Interception

3 Provision suggest that that's not true. And in all of the

4 cases, applying the acts, use and disclosure prohibitions

5 which are cited in the appendix to our briefs.

6 QUESTION: Well, shouldn't the Government at

7 least have a chance to -- I mean, the Government here was

8 cut off. there hasn't been any trial. There were 1292-B.

9 certifications. The third circuit said the statute is no

10 good. If the question is, is it really difficult to get

11 out -- get after interceptors, shouldn't the Government

12 have had a chance to show that indeed it is?

13 MR. LEVINE: Your Honor, in light of the ample

14 evidence that is contained in the record and available to

15 the Court, that at least when you're talking about matters

16 of public concern as you are here, where money doesn't

17 drive the market to the interception, that that is not the

18 case. I think warrants a conclusion that the Government

19 doesn't need to be able to do that, and of course if the

20 Court applies the Daily Mail principle, we don't reach

21 that question because the Daily Mail principle obviates

22 the need to show that, especially whereas here there are

23 so many less restrictive alternatives to prohibiting the

24 dissemination of information, like meaningful criminal

25 penalties against the interception itself.

32

1 In this case, your Honors, the maximum criminal

2 penalty that could be applied against the interceptor of

3 this communication was a nominal fine with no possibility

4 of incarceration. In the Baynor case, another one of the

5 cases that is pending before this Court, the interceptor

6 of that conversation was fined $500.

7 QUESTION: In -- in -- suppose that a stranger

8 goes into your house, trespassing, puts his ear to the

9 bedroom door and hears your private conversation or goes

10 in and steals your diary and turns it over to a newspaper,

11 knowing all this publishes it, is it constitutional not to

12 forbid the publication, but to collect damages from the

13 newspaper?

14 MR. LEVINE: Your Honor, if the information did

15 not involve a matter of public concern --

16 QUESTION: No. No. It does.

17 MR. LEVINE: If it involves a matter of public

18 concern --

19 QUESTION: Yes.

20 MR. LEVINE: -- and there is no unlawful conduct

21 of any kind by the person who publishes the information --

22 QUESTION: All right. So you're saying that its

23 unconstitutional to prohibit trespassers from coming into

24 your house, steal your diaries, and listen to your most

25 private conversations and then publish them in mass

33

1 circulation dailies and you can't get damages from that as

2 long as the newspaper itself didn't do the trespass, just

3 knew all about it?

4 MR. LEVINE: Your Honor, I think I misunderstood

5 your question. The person who broke into your house and

6 listened in --

7 QUESTION: Is not a -- is not a reporter.

8 MR. LEVINE: Right.

9 QUESTION: It's just someone -- it's a stranger.

10 MR. LEVINE: That person can be prosecuted.

11 QUESTION: No, I'm asking if you can get damages

12 from the newspaper and I think your answer

13 straightforwardly is no.

14 MR. LEVINE: That's correct, Your Honor. That's

15 correct, Your Honor.

16 QUESTION: Then I don't see how you're going to

17 have privacy left. I mean, what kind of privacy is there

18 if people can break into your house, steal all your

19 information, can be published in the newspaper that knows

20 it and you can't get any damages from the newspaper?

21 MR. LEVINE: Your Honor --

22 QUESTION: It goes with trade secrets,

23 copyrighted books and your most private information.

24 MR. LEVINE: Your Honor, you can go after the

25 person who intercepted.

34

1 QUESTION: Yeah, but we don't know who that

2 person is, you know. He takes his money and runs, all

3 right. So the only effective redress is to stop the

4 entire United States from knowing your most secret

5 information or your trade secrets or your copyrighted book

6 which was obtained with the newspaper's full knowledge

7 through trespass, breaking and entering, any kind of

8 stealing you want. Is that not your position?

9 MR. LEVINE: Justice Breyer --

10 QUESTION: If I disagree with that you lose --

11 MR. LEVINE: Justice Breyer, if I understand

12 your latest iteration of the hypothetical, you included a

13 payment in there. If the newspaper paid for the

14 information, that's a much closer question.

15 QUESTION: No. No. I'll take it out then.

16 MR. LEVINE: Your Honors, in the last analysis,

17 this statute simply prohibits too much speech. In this

18 case it prohibits respondent Yokum from notifying members

19 of the school board that they might be in danger.

20 QUESTION: Are you permitted to raise an

21 overbreadth challenge in this posture of the case?

22 MR. LEVINE: The answer is yes, Justice Kennedy,

23 because if an intermediate scrutiny does apply, one of the

24 prongs of the intermediate scrutiny test is that the

25 statute at issue must not prohibit more speech than is

35

1 necessary. I don't see how a litigant in our position can

2 make that point without making the arguments that we have

3 here about the fact that this statute simply prohibits too

4 much speech. The statute also prohibits the media

5 respondents from sharing --

6 QUESTION: If the rationale of the statute is to

7 dry up the market, it doesn't prohibit too much speech, it

8 prohibits precisely the amount of speech that is the

9 product of what the statute is aimed at.

10 MR. LEVINE: But if you focus on the speech

11 itself, Justice Stevens, and it is truthful and it

12 involves a matter of public concern, that speech has

13 value. That's what the Daily Mail principle is all about.

14 QUESTION: No, but you're arguing about the

15 quantity. The quantity is precisely tailored to the

16 underlying criminal conduct. It's the fruits of that, just

17 like the fruits of an illegal search, to take Justice

18 Scalia's example.

19 MR. LEVINE: Not when -- not when the Congress

20 was focused on other kinds of interceptions and

21 disclosures involving things like industrial espionage,

22 insider trading, contested divorce. Congress did not

23 focus on things like speech involving matters of public

24 concern. There is nothing in the legislative history to

25 suggest that Congress thought that that was problem that

36

1 it was trying deal with.

2 QUESTION: No, the problem is illegal

3 intercepts. And it covers the product of every illegal

4 intercept. It doesn't cover any speech that is not the

5 product of -- it seem it is to me their tailoring argument

6 is not really very persuasive. It exactly fits, in terms

7 of quantity, if you're just talking about quantity, the

8 quantity is exactly the full market for this illegal

9 activity.

10 MR. LEVINE: I think it's fairest to say that

11 I'm talking about quantity and quality. Quality in the

12 sense that the information involving truthful speech

13 without matters of public concern is at the core of the

14 First Amendment and that's what this statute prohibits in

15 addition to whatever it may legitimately prohibit

16 involving speech that doesn't involve a matter of public -

17 concern.

18 QUESTION: Well, given that, then why is it

19 worse? Why is it worse to receive a stolen diary than to

20 steal the diary yourself? Why is it worse to receive with

21 knowledge, the stolen diary? Do you see my point?

22 MR. LEVINE: I see your point and this may be a

23 fine distinction in response, but I think it's an

24 important one, Justice Breyer, the physical diary is

25 property. Taking that, regardless of what's inside it, is

37

1 not the function of the First Amendment to speak to. If

2 you're talking about the contents of the diary, the

3 information and you're then penalizing someone for now

4 knowing that information, having it in his brain and then

5 disseminating it to other people, that is something that

6 the First Amendment is concerned about, especially when

7 you're talking about speech that is the truth and is a

8 matter of public concern.

9 QUESTION: I guess the case points up that

10 chattel analogies are difficult in a modern age of

11 digitized speech, et cetera.

12 I mean you don't have an airline ticket anymore.

13 It's just out there in a computer.

14 MR. LEVINE: That's right.

15 QUESTION: And what the Government is trying to

16 do is to recognize that in this statute.

17 MR. LEVINE: That's correct.

18 QUESTION: Thank you, Mr. Levine.

19 Mr. Goldstein, we'll hear from you.

20 ORAL ARGUMENT OF THOMAS C. GOLDSTEIN

21 ON BEHALF OF RESPONDENT YOCUM

22 MR. GOLDSTEIN: Mr. Chief Justice and may it

23 please the Court:

24 Even if the petitioners are correct that the

25 wire tap acts redisclosure prohibition and that's what

38

1 I'll call it, it's the second, third, fourth person to

2 receive it, even if that prohibition, prophylactically

3 adds some deterrent, as Justice Scalia and the Chief

4 Justice have suggested, and Justice Breyer's concern about

5 privacy identifies, even if it does add some deterrent,

6 that prohibition is too crude a weapon, effectively a

7 thermonuclear bomb of sorts to be sustained in the

8 sensitive area of not property but free speech. It

9 therefore should be invalidated at least under

10 intermediate scrutiny.

11 QUESTION: Well, what you then presumably have

12 other ideas as to how the Government might get at this

13 problem, less drastic, perhaps? What are they?

14 MR. GOLDSTEIN: Mr. Chief Justice, we believe

15 that the solution adopted by the Third Circuit, the narrow

16 approach it took is the one that is appropriate under

17 intermediate scrutiny and that is it left in place by and

18 large the redisclosure prohibition but recognized that

19 when the final disclosure is on a question of public

20 significance, and is by a person completely uninvolved in

21 the illegal interception, then the speech rights outweigh.

22 So when you have only the circumstance where you have

23 speech on a matter of public significance, not just what

24 was happening on the phone, someone came in and just

25 overheard my conversation in my bedroom, they adopted a

39

1 line -- this a -- a principle that exists in lots of this

2 Court's cases, including in the defamation context, in

3 Pickering balancing, when you're speaking on a matter of

4 public importance, that's when the First Amendment

5 interests are at their highest.

6 QUESTION: So is it a fact --

7 QUESTION: The newspaper's not going to publish

8 it unless it has public interest? And is public interest

9 and public significance the same thing? I mean, you know,

10 somebody taps the phones of a prominent public official or

11 of a prominent jurist and it turns out the guy swears like

12 a trooper and this -- you know, and the whole conversation

13 is published in the paper. Is that a matter of public

14 significance?

15 MR. GOLDSTEIN: It is a matter of public

16 interest. This Court --

17 QUESTION: But it may well not be a matter of

18 public significance.

19 QUESTION: Well, now what's the difference if we

20 -- do our cases articulate any difference between public

21 significance and public interest.

22 MR. GOLDSTEIN: The Court has --

23 QUESTION: Can you answer the question yes or

24 no?

25 MR. GOLDSTEIN: No, because it hasn't been

40

1 presented, Mr. Chief Justice and I would --

2 QUESTION: And you're presenting it now.

3 MR. GOLDSTEIN: Yes. Mr. Chief Justice, in

4 three lines of cases, the Court has taken -- has drawn the

5 line at public significance and I will identify them

6 specifically. Defamation and libel, the Hustler Magazine

7 case, the Philadelphia Newspaper v. Hepps case and Dun &

8 Bradstreet all turn on whether or not the speech in

9 question is on an issue of public significance. The same

10 is true in the Pickering balancing cases, including

11 particularly the Court's opinion in United States v.

12 National Treasury Employee's Union which, too, was a

13 content-neutral statute. But I need to return to what

14 else we would say, what other strictures we would put on

15 the statute in order to permit it to survive intermediate

16 scrutiny and still fulfill what we agree is an important

17 governmental interest and that is that no one wants people

18 tapping phones and breaking into homes.

19 The difficulty here is that there are a number

20 of respects in which the statute is not tailored

21 whatsoever. And so I want to get to Justice Stevens'

22 point that really this does get to the heart of the

23 matter. The real problem is that this is not a case like

24 the Daily Mail case where it is a one-to-one trade off,

25 we're going to reduce some speech in order to further some

41

1 other interest. We have here a statute that is so broad

2 that much speech that the Government has no interest or

3 actual intent to stop from being published will in fact be

4 published. The different -- I will identify five

5 distinctions. The first is that it applies equally and I

6 mean all the way down the line in terms of punishment

7 whether or not you can put someone in jail, identical

8 fines to the newspaper that is the 10th party down the

9 line to receive the information as to the intercepting.

10 QUESTION: Well, it's no longer --

11 QUESTION: Not according to Soliciter General.

12 He says the word disclosed means that once it has been

13 publicly disclosed, the next person is not a discloser.

14 MR. GOLDSTEIN: That argument is not inexist

15 with what I have just said. I will explain why.

16 QUESTION: I hope you will.

17 MR. GOLDSTEIN: The radio station here played

18 the tape in this area of northeastern Pennsylvania, Mr.

19 Chief Justice, the New York Times comes along and listens

20 and says oh, my goodness, look what happened here. They

21 then publish it nationally. Under the Soliciter General's

22 interpretation, that is a violation of the statute because

23 it wasn't known to the people in California.

24 QUESTION: Is that expressed in the Government's

25 brief or is this just something that you're adding to the

42

1 Government's brief?

2 MR. GOLDSTEIN: Well, Mr. Chief Justice, I'm in

3 the difficult position that this argument is made in one

4 sentence in the Government's reply brief and so this is my

5 understanding.

6 QUESTION: Well, so your feeling is that if it's

7 just disclosed in northeastern Pennsylvania, then someone

8 who discloses it perhaps in northwestern Pennsylvania is

9 disclosing it anew?

10 MR. GOLDSTEIN: Exactly. And as ridiculous as

11 that sounds --

12 QUESTION: It sure does.

13 MR. GOLDSTEIN: And I -- I agree with you that

14 it's ridiculous but it is what the statute says and it's

15 completely consonant with what Congress was apparently

16 attempting to do here. If you look through the

17 petitioner's brief, time and again, they say each time it

18 gets out it's like a hundred thousand people intercepting

19 the communication.

20 QUESTION: You don't have to read statutes

21 unreasonably. I mean if that's an unreasonable result,

22 don't read disclose to mean that. I mean you usually

23 reads statutes to produce both constitutional and

24 reasonable results where that's possible.

25 MR. GOLDSTEIN: The plain text of the statute

43

1 uses a much broader term than is suggested by the

2 Solicitor General and let me continue with the other four

3 problems with tailoring. The second is that it applies to

4 any piece of information about the conversation, not

5 merely the tape. The fact that, and Justice -- there was

6 a question about talking to my neighbor. In this context

7 if you receive innocently a tape recording and merely

8 mention the fact that you have -- you know that there was

9 a tape recording of the conversation, it applies equally

10 because the definition of content is so broad. It's

11 literally any datum about the conversation. The third is

12 that it imposes civil and criminal liability and permits

13 the commencement of litigation even when there has been no

14 injury at all. And the plaintiffs in this case disavowed

15 any claim that they had been actually been hurt. The

16 fourth is that it applies equally no matter whether the

17 information and indeed the conversation in question was

18 even private. And this was Justice O'Connor's first

19 question is that the information that was spoken and was

20 heard and intercepted could have been a completely public

21 fact but the fact that it was said in a conversation would

22 be disclosed, and fifth and this one is the particularly

23 troubling one that I began with, it applies even when the

24 information is of vital public significance.

25 Now, the reason I mentioned these five is that

44

1 you have to look at someone who is in the position of

2 receiving a piece of information and there is the grave

3 concern that when you get a piece of information

4 notwithstanding the reason to know the limitation which is

5 what the Solicitor General points had to saving the

6 statute, you had real doubts about the provenance of

7 information. Because of the great breath of the statute,

8 it's unlike Daily Mail and it's unlike Florida Star.

9 You've got a rape victim's name and you know okay that's

10 prohibited. I'm not going to say that if I followed the

11 statute and its constitutional --

12 QUESTION: Well wouldn't a reporter or a news

13 station ordinarily want to check out a story? Are they

14 just going to get the tape and say gee, let's put it on?

15 MR. GOLDSTEIN: Mr. Chief Justice, if that's the

16 case then I don't think that we have a problem. If you

17 are going to have a situation where you attempt to discern

18 the provenance of information, this case -- this statute

19 operates only in the circumstance where the newspaper

20 doesn't know the intercepting party. If the newspaper

21 knows the intercepting party then the statute operates

22 because the newspaper will be subpoenaed and will have to

23 testify about who gave them the interception and that

24 person will be prosecuted. In the situation where you

25 don't know and if the Court's point is that look, it

45

1 simply won't be published in that instance we don't have a

2 problem because the broader disclosure won't happen.

3 QUESTION: Well, I don't understand that.

4 QUESTION: That might be quite difficult. Is

5 the -- I think that the Congress or States pass property

6 laws in part to keep people away from my bedroom. And

7 they are doing that in part for reasons better than trade

8 secret law or copyright law because there is something

9 about human dignity that requires it. Well, if they can

10 keep people away from my bedroom to hear my private

11 conversations, even about important matters, can't they

12 try to protect that same kind of basic dignity in respect

13 to the new world that will come through wireless

14 communication? Now, do you see there's a lot involved

15 there, but that's at the bottom of what I'm trying to work

16 out in this case.

17 MR. GOLDSTEIN: Let me begin by stepping back to

18 the variant on that question that you asked my colleague.

19 And I do want to specify, that when it comes to things

20 like diaries, the intellectual property laws still apply

21 fully in the same way they did in Cowles, those sorts of

22 copyright laws, and we don't doubt that if it's a diary

23 and it's something that is your personal information, you

24 have written it down, that you can claim that you have

25 stolen something like intellectual property.

46

1 Your version to me was, can't we try hard to

2 reduce the incentives, and I think Congress is doing that

3 here. There is no record that suggests there is a real

4 problem, but I think we all agree intuitively, it will

5 reduce somewhat the incentive to engage in the

6 interception. Our problem is that it's a purely

7 prophylactic ban on someone and could result in massive

8 punitive damages or jail time on someone who hasn't

9 engaged in the primary wrongdoing. Where the prophylaxis

10 has broken down, my client has no idea who gave him this

11 piece of information. He has it. It's of public

12 significance. It's a legitimate threat on page.

13 QUESTION: He knows it was illegally obtained.

14 He didn't know who illegally obtained it. Do you really

15 think this phone conversation what, just dropped out of

16 the air or something? It was obviously illegally

17 obtained. Wasn't it an obvious phone tap?

18 MR. GOLDSTEIN: It was an obviously -- it was

19 obviously recorded and very likely recorded by someone who

20 wasn't a party to it.

21 QUESTION: Okay. Why do you have to know who

22 did it?

23 MR. GOLDSTEIN: Because he is not engaged in

24 anything that anyone believes is wrong. He has

25 information, a legitimate threat. The court of appeals,

47

1 Justice Scalia, on page 26-A of the petition appendix

2 explains that this is not just an idle threat. He says

3 really, truthfully, we're going to have to do some work on

4 these people, blow off --

5 QUESTION: But isn't it the case that by the

6 time the publication which is the subject of this action

7 occurred, the threat was over? This publication all

8 occurred after the point at which the threat was going --

9 MR. GOLDSTEIN: With respect, that is not

10 correct, particularly as to my client. Independently

11 after receiving it, within a day, he published it,

12 disclosed it in the sense of the statute by giving it to

13 the radio station and notifying the people who were the

14 subject.

15 QUESTION: Why didn't he just notify the people

16 who were the subject of the threat?

17 MR. GOLDSTEIN: He did.

18 QUESTION: Once it goes to the radio station

19 you're not talking about an exception for people who are

20 performing the public service of warning victims.

21 MR. GOLDSTEIN: I think that there is something

22 to be said of warning the public. But I agree --

23 QUESTION: Well, the public's porches weren't

24 going to be blown off, the school committee's porches were

25 going to be blown off, and they were notified. So that

48

1 when it went to the radio station, we weren't worried

2 about potential victims of porch blowings, were we?

3 MR. GOLDSTEIN: When he gave it to the radio

4 station, yes, we were.

5 QUESTION: And at the same time, he was making

6 it known, I forget how, but he was making it known to the

7 victims so that the radio station was not necessary to

8 make it known to the victims and the people who learn

9 through the radio station weren't potential victims.

10 That's correct, isn't it?

11 MR. GOLDSTEIN: That is correct. Our point is

12 that when you have a piece of information and the

13 prophylactic goals of the statute have broken down and it

14 is a matter of public significance, you are not involved

15 in anything that Congress attempted to stop. It is speech

16 of the highest interest. When you have a limited holding

17 like the third circuit did here under intermediate

18 scrutiny, if it is only speech on matters of public

19 significance and by someone who had nothing to do with the

20 interception, has no idea who was, that speech is

21 protected.

22 QUESTION: But who knows that someone upon whom

23 he is depending acted illegally.

24 MR. GOLDSTEIN: Has reason to know.

25 QUESTION: Has reason to know and certainly

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1 there is reason to know here.

2 MR. GOLDSTEIN: That's correct.

3 QUESTION: All right, and -- and Congress

4 certainly did intend to stop that, it seems to me,

5 contrary to what you said. Why do you suggest that this is

6 outside of ambit of what concerned Congress. Congress

7 wanted to dry up a market, and I can't think of a more

8 obvious market than the market of a radio station which

9 has reason to know that it is publishing illegally seized

10 interceptions.

11 MR. GOLDSTEIN: Justice Souter, if I said this

12 wasn't what Congress was trying to do, I misspoke.

13 QUESTION: I thought you did say that.

14 MR. GOLDSTEIN: We agreed that that was

15 Congress' goal. Our point in that respect is twofold, is

16 that neither the Congress nor the plaintiffs or the

17 Government have attempted to develop any record that that

18 was a series problem. And second is that --

19 QUESTION: Then they should have time to do it

20 under the procedure as it has gone so far, they haven't.

21 If that's the flaw --

22 MR. GOLDSTEIN: Justice Ginsburg, they had the

23 opportunity to develop a record in this case and the other

24 two cases that have come before you, that are the Peavey

25 case and the Baynor case have gone through the courts and

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1 no one has suggested that they are going to develop any

2 kind of record.

3 QUESTION: Then, but tell me if I'm wrong. I

4 thought the district court kept the case there, certified

5 questions to the third circuit. The third circuit didn't

6 say but now you have a chance to show it, just cut him

7 off. They prevailed in the district court.

8 MR. GOLDSTEIN: They did not attempt in this

9 case to put forward any record regarding the efficacy of

10 the statute.

11 QUESTION: If they knew they were required to do

12 something beyond the intuitive judgment that people make

13 that of course nobody is going to do this if nobody is

14 going to touch it, if it's going to be treated like a hot

15 potato.

16 MR. GOLDSTEIN: I think maybe you I, Justice

17 Ginsburg, are speaking about two slightly different

18 things. The first is a point you identified to my

19 colleague before which is, is it really difficult to

20 identify people and stop them when they are doing these

21 kinds of interceptions. I think this court can assume

22 that to be the case. The point that I am making is that

23 Congress when it legislated here did not operate on an

24 understanding or any evidence that there was a problem.

25 QUESTION: Thank you, Mr. Goldstein.

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1 General Waxman, you have three minutes

2 remaining.

3 REBUTTAL ARGUMENT OF SETH P. WAXMAN

4 ON BEHALF OF PETITIONER UNITED STATES

5 MR. WAXMAN: Thank you, Mr. Chief Justice.

6 Questions about the extent of the necessity

7 defense which we mentioned in our reply brief or the

8 meaning of the word disclosure are all, of course,

9 questions of application that will be given judicial

10 interpretation in appropriate cases where they arise. The

11 salient point here is that the respondents have not made a

12 case, either in their briefs or here, that going solely

13 against the wiretapper is going to significantly protect

14 privacy. And contrary to their representation, the

15 legislative history does, in fact, reflect both great

16 solicitude for the privacy rights involved and that's

17 quoted at page 3 of our reply brief and also repeatedly

18 the recognition that wiretapping and bugging and now of

19 course we have hacking into e-mails is almost completely

20 impossible of interception or even detection.

21 The nominal fine that Mr. Levine referred to

22 Levine referred to is, of course, $5,000 which is not

23 nominal with respect to most people, and in any event

24 exists independent of the civil remedy under 2520 that

25 Congress thought was appropriate and Congress said in the

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1 legislative history was appropriate to vindicate the

2 privacy rights of the people whose privacy interests were

3 not vindicated.

4 The notion that there is a limiting principal

5 for facts of public significance, I think, is fatal.

6 First of all, if there were such an exception, that would

7 not -- that would deprive the statute of being content

8 neutral. And second of all, there is almost no way to

9 draw the line, as Justice Scalia suggests, for what is

10 publicly significant. This court has already held twice

11 that the name of a woman who has been raped, not the fact

12 that there was a rape or the name of the perpetrator, but

13 the victim is a matter of public significance and public

14 interest. So we don't think that there is a

15 constitutional way to draw a line here.

16 The Daily Mail principle that the other side

17 bases its case on is distinguishable from this case and

18 this law in five critical respects. Those were laws that

19 applied only to the press and not to nonexpressive uses.

20 They were content based laws reflected a determination

21 that society should not know certain information. They

22 reflect -- they dealt with information that came from the

23 Government that is not in the hands of private parties and

24 there are, we understand, reasons to respect a sensorial

25 motive when the Government seeks to limit disclosure of

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1 information about its own activities. They did not --

2 they all obtained -- involved information that was

3 lawfully obtained. Every single one of the persons who

4 gave that information to the person got it lawfully.

5 CHIEF JUSTICE REHNQUIST: Thank you, General

6 Waxman. The case is submitted.

7 (Whereupon, at 12:03 p.m., the case in the

8 above-entitled matter was submitted.)

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