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. 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 2 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 22 23 24 25 3 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 12 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 13 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 16 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 18 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 21 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 49 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 50 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. 51 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 52 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 53 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.) 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 54