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Not Strictly Confidential

© Gina D. Gipson

The talk of the town was how a dispute between the teachers' union and the school board would be resolved. Emotions ran high on all sides. A conversation between two teacher union officials who were apparently unhappy with certain members of the school board, revealed a need to release, relax and relate - strongly.

The union officials, who had been talking on cellular phones, soon found out that the conversation had been taped. Needless to say, they were not happy campers. Not only did someone wrongfully tape the conversation, they found out about it when a radio talk-show host played it, repeatedly, on air.

A lawsuit was filed against the talk-show host in federal district court. Subsequently, an individual revealed that he had found the tape in his mailbox. This man was added to the suit, when he also admitted that he was the person who delivered the tape to the talk-show host.

The federal district court basically sided with the petitioners saying that the taping was illegal therefore, it was impermissible for it to be published. But the U.S. Court of Appeals for the 3rd Circuit (this was a Pennsylvania case), said that there can be no liability for disclosure of information that is of "public significance" when the defendants played no part in the original deed.

It appears that there was a similar case in another court of appeals; but it reached a different conclusion. Since both courts (as well as all of the other U.S. courts of appeals) are on equal footing, a conflict was created. The United States Supreme Court decided to resolve it.

The Court addressed a very narrow question: where a publisher (talk-show host) has lawfully obtained information (he played no part in the interception) from a source who obtained it unlawfully, may the government punish the ensuing publication based on a defect (the illegal interception) in a chain?

The Court's answer was just as narrow: no. They declined to answer another question which was, in cases where information has been acquired unlawfully by a newspaper or by a source, may government punish not only the unlawful acquisition but also the ensuing publication? The Court has regularly refused to address whether a truthful publication can ever be punished consistently with the First Amendment. Typically, they will only address the issues before them, unless they feel a need to expound; and that doesn't happen often.

In the meantime, the U.S. Justice Department also intervened in this suit, as an advocate for the wiretapping statute. That statute is Title III of the Omnibus Crime Control & Safe Streets Acts of 1968. It generally prohibits the interception of electronic, oral or wire communications.