The question, as the dissents saw it was "if information is lawfully obtained, even if obtained from a source who obtaned it illegally, can disclosure of such information be barred under the First Amendment."
The dissents believied the Supreme Court's decision in Bartnitski v. Vopper controlled the question. Bartnitski held:
These cases raise an important question concerning what degree of protection, if any, the First Amendment provides to speech that discloses the contents of an illegally intercepted communication. That question is both novel and narrow. Despite the fact that federal law has prohibited such disclosures since 1934,1 this is the first time that we have confronted such an issue.
The suit at hand involves the repeated intentional disclosure of an illegally intercepted cellular telephone conversation about a public issue. The persons who made the disclosures did not participate in the interception, but they did know–or at least had reason to know–that the interception was unlawful. Accordingly, these cases present a conflict between interests of the highest order–on the one hand, the interest in the full and free dissemination of information concerning public issues, and, on the other hand, the interest in individual privacy and, more specifically, in fostering private speech.
. . . The constitutional question before us concerns the validity of the statutes as applied to the specific facts of this case. Because of the procedural posture of the case, it is appropriate to make certain important assumptions about those facts. We accept petitioners’ submission that the interception was intentional, and therefore unlawful, and that, at a minimum, respondents “had reason to know” that it was unlawful. Accordingly, the disclosure of the contents of the intercepted conversation by Yocum to school board members and to representatives of the media, as well as the subsequent disclosures by the media defendants to the public, violated the federal and state statutes. Under the provisions of the federal statute, as well as its Pennsylvania analog, petitioners are thus entitled to recover damages from each of the respondents. The only question is whether the application of these statutes in such circumstances violates the First Amendment.8
. . . As a general matter, “state action to punish the publication of truthful information seldom can satisfy constitutional standards.” Smith v. Daily Mail Publishing Co., 443 U.S. 97, 102 (1979). More specifically, this Court has repeatedly held that “if a newspaper lawfully obtains truthful information about a matter of public significance then state officials may not constitutionally punish publication of the information, absent a need . . . of the highest order.” Id., at 103; see also Florida Star v. B. J. F., 491 U.S. 524 (1989); Landmark Communications, Inc. v. Virginia, 435 U.S. 829 (1978).
. . . However, New York Times v. United States raised, but did not resolve the question “whether, in cases where information has been acquired unlawfully by a newspaper or by a source, government may ever punish not only the unlawful acquisition, but the ensuing publication as well.”12 Florida Star, 491 U.S., at 535, n. 8. of that still-open question. Simply put, the issue here is this: “Where the punished publisher of information has obtained the information in question in a manner lawful in itself but from a source who has obtained it unlawfully, may the government punish the ensuing publication of that information based on the defect in a chain?” Boehner, 191 F.3d, at 484—485 (Sentelle, J., dissenting).
. . . The normal method of deterring unlawful conduct is to impose an appropriate punishment on the person who engages in it. If the sanctions that presently attach to a violation of §2511(1)(a) do not provide sufficient deterrence, perhaps those sanctions should be made more severe. But it would be quite remarkable to hold that speech by a law-abiding possessor of information can be suppressed in order to deter conduct by a non-law-abiding third party. Although there are some rare occasions in which a law suppressing one party’s speech may be justified by an interest in deterring criminal conduct by another, see, e.g., New York v. Ferber, 458 U.S. 747 (1982),13 this is not such a case.
. . . The enforcement of that provision in this case, however, implicates the core purposes of the First Amendment because it imposes sanctions on the publication of truthful information of public concern. . . . In this case, privacy concerns give way when balanced against the interest in publishing matters of public importance. As Warren and Brandeis stated in their classic law review article: “The right of privacy does not prohibit any publication of matter which is of public or general interest.” The Right to Privacy, 4 Harv. L. Rev. 193, 214 (1890). One of the costs associated with participation in public affairs is an attendant loss of privacy.
. . . We think it clear that parallel reasoning requires the conclusion that a stranger’s illegal conduct does not suffice to remove the First Amendment shield from speech about a matter of public concern.22 . . .
It is clear from this excerpt then that McDermott'sconduct must be the basis for the finding of liability. In my opinion, this is what makes this opinion rather ridiculous. McDermott did violate the House Ethics Rules. But that violation does not remove his protection from the First Amendment. To wit, McDermott can be punished for violating the House Ethics Rules, not for violating the Florida and federal law. Strangrly enough, only the concurrence argues this. The 4 in the plurality simply misstate the holding in Bartnitski as Judge Sentelle in dissent makes crystal clear. The plurality opinion is clearly at odds with Bartnitski and can not stand in my opinion.
What we are left with is the argument that because McDermott violated House Ethics Rules, he could not avail himself of his First Amendment rights as stated in Bartnitski. The dissent says that he can and that the punishment McDermott should face are those of the House Ethics Rules and no other. And since the House had created no private right of action, then it was ludicrous to hold McDermott liable.
The dissent wins this matter easily. Luckily, I think the decision has no Media implication. The concurrence, which stresses the House Ethics Rules, obviously is the link that does not connect it to the Media.
Still and all, not a good day for the DC Circuit.
