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Court taps into privacy

If they're not going to move for 3%," Anthony F. Kane said referring to school-board members during labor negotiations in 1994, "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."

Talking over a cell phone with union negotiator Gloria Bartnicki, Kane, a schoolteacher in Pennsylvania's Wyoming Valley West School District, went on to criticize the board members for negotiating the teacher's contract in the local newspaper. "You don't discuss [this] in public."

He had no idea.

Kane's ill-advised comments would become infamous; the subject of numerous radio reports by Wilkes-Barre radio personality Fred Williams, and the subject of litigation that would make its way through the system all the way to the Supreme Court as part of the session that begins today (the case will be argued on Dec. 5).

Media lawyers say Bartnicki vs. Vopper-Williams' real name-could be the most significant First Amendment case in years, pitting the rights to freedom of information against those of privacy.

"A fellow that I know brought me a copy of the tape," said Williams, a 35-year Wilkes-Barre broadcast fixture whose list of journalism and public-service awards is measured by the page. "I still don't know how he got it. But I never would have believed that this would go to the Supreme Court. "

According to court documents, the conversation between Kane and Bartnicki was intercepted and recorded by a person still unknown and left in a mailbox belonging to Jack Yocum-head of an organization that opposed the union's demands. After listening to the tape, Yocum, who recognized the voices of Bartnicki and Kane, gave a copy to Williams at wilk(am). Williams played the tape several times on his news/public-affairs show, and written transcripts were published in local papers.

Bartnicki and Kane sued Yocum, Williams and the radio station, claiming violations of state and federal bans against wiretapping. On defendants' motions for summary judgment, a federal trial court in 1996 twice rejected their contention that imposing liability in this case violated the First Amendment.

The U.S. Court of Appeals for the Third Circuit disagreed, concerned that holding media liable under the wiretapping laws could chill reporting and "deter the media from publishing even material that may lawfully be disclosed under the Wiretapping Acts. Reporters often will not know the precise origins of information they receive from witnesses and other sources, nor whether the information stems from a lawful source."

In this case, the court noted, the underlying content of the disclosures were of significant public interest. Noting the possible threat of violence, the circuit court noted that "[n]othing in the context suggests that this was said in anything other than a serious vein." In fact, an attorney for Williams said, although Kane has insisted he was not serious, some school-board members were fearful. But even if there was no subsequent violence, "the fact that the president of the school teachers' union would countenance the suggestion is highly newsworthy and of public significance."

The Department of Justice, defending the application of the wiretapping statutes, argued that such statutes actually promote free expression "by assuring individuals that the law will protect the confidentiality of their private conversations."

The government noted that 44 states as well as the District of Columbia have laws which, like federal law, "bar not only the interception of electronic communications, but also the disclosure of those communications."