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Eavesdropping

By Harvey Randall, Esq.

Eavesdropping
Bartnicki v Vopper, USSC, 532 U.S. 514

From time to time an administrator learns about alleged employee misbehavior indirectly such as via a report resulting from the interception of a letter or phone call.

In the Bartnicki case the U.S. Supreme Court addressed the implications First Amendment freedom of speech rights in a case involving the disclosure of the contents of unlawfully intercepted communications.

The challenged disclosure involved what the parties conceded constituted an illegally intercepted cellular telephone conversation. The persons who made the disclosures, however, did not participate in the interception, but [presumably] knew that the interception was unlawful.

The case arose in the context of collective bargaining. The Pennsylvania State Education Association, a union representing the teachers at the Wyoming Valley West High School, was engaged in "contentious" collective-bargaining negotiations that received extensive media attention." Gloria Bartnicki, acting as the union's chief negotiator, used the cellular phone in her car to call Anthony F. Kane, Jr. to discuss the status of the negotiations. An unidentified person intercepted and recorded that call.

In their conversation, Kane and Bartnicki discussed the timing of a proposed strike, difficulties created by public comment on the negotiations, and "the need for a dramatic response to the boards intransigence." According to the decision, "[a]t one point, Kane said: If they're not gonna move for three percent, we're gonna have to go to their, their homes ... To blow off their front porches, we'll have to do some work on some of those guys."

The decision reports that Jack Yocum, the head of a local taxpayers organization that had opposed the union's demands throughout the negotiations, testified that he had found the tape in his mailbox shortly after the interception and recognized the voices of Bartnicki and Kane. He later played the tape for some members of the school board, and then gave the tape to Frederic W. Vopper, who played it during a radio broadcast.

In their defense, Vopper and the other defendants argued that they played no part in the illegal interception but had found out about the interception only after it occurred, and, furthermore, never learned the identity of the person or persons who made the interception. They also argued that their access to the information on the tapes was obtained lawfully, even though the information itself was intercepted unlawfully by someone else.

Finally, the defendants claimed that the subject matter of the intercepted conversation was a matter of public concern, pointing out that if the statements about the labor negotiations had been made in a public arena during a bargaining session or if a third party had inadvertently overheard Bartnicki making the same statements to Kane when the two thought they were alone, there would be no violation of law if they were published.

Having considered the competing interests at stake, -- personal privacy versus public disclosure of matters of public interest -- the Supreme Court said "we are firmly convinced that the disclosures made by respondents in this suit are protected by the First Amendment."

In the words of the court, "[i]n this case, privacy concerns give way when balanced against the interest in publishing matters of public importance.... The right of privacy does not prohibit any publication of matter which is of public or general interest."

The court's conclusion: "a stranger's illegal conduct does not suffice to remove the First Amendment shield from speech about a matter of public concern."

Justice Breyer, in a concurring opinion with Justice O'Connor, wrote: I agree with its narrow holding limited to the special circumstances present here:

1.The radio broadcasters acted lawfully (up to the time of final public disclosure); and

2.The information publicized involved a matter of unusual public concern, namely a threat of potential physical harm to others ... "we should avoid adopting overly broad or rigid constitutional rules, which would unnecessarily restrict legislative flexibility."

Full post as published by New York Public Personnel Law on January 31, 2008 (boomark / email).