Bartnicki v. Vopper: Another Media Victory or Ominous Warning of a Potential Change in Supreme Court First Amendment Jurisprudence?

Abstract

With the creation and enforcement of federal wiretapping statutes, Congress and the courts have attempted to "hold invasive technology at bay without handcuffing the news media," and this has forced the Supreme Court to engage in a balancing act with privacy interests on one side and freedom of the press on the other. Recently, the Supreme Court, in Bartnicki v. Vopper, addressed the common situation in which a third party illegally intercepts a cellular phone conversation, records it, and then releases a tape of that conversation to the media. The holding in that case, that "a stranger's illegal [interception] does not suffice to remove the First Amendment shield from speech about a matter of public concern, was a victory for the individual members of the media that were involved.

As precedent, however, the narrow holding in Bartnicki "could have repercussions for the media for decades to come, and might very well be "a gift to the media with strings attached. Or, more precisely, it might be the last gift to the media from the Supreme Court for a very long time. This is evidenced by the increased importance the Court placed on privacy, the majority's reluctance to define exactly when, or if, a media defendant can ever be punished for broadcasting the contents of an intercepted conversation, and the Court's failure to address whether or not media disclosures of gossip, trade secrets, or other private matters would be protected.

Section II of this Note will discuss the holding of the majority of the Court in Bartnicki v. Vopper, and will analyze the important concurring and dissenting opinions of this landmark case. Section III will argue that the narrow holding in Bartnicki might be less of a victory for the media than was originally thought. Finally, Section IV will discuss how the decision in Bartnicki has impacted two important, and similar, cases in the lower courts and what the decision means for the media in the future.