The U.S. Supreme Court’s recent decision in Bartnicki v. Vopper sets up a value judgment in which the value of speech about any matter of public concern is most likely to outweigh privacy interests inherent in the laws against wire-taps.

The court refused to write a broad rule, but said rather it would continue to consider questions about revealing information from illegal wiretaps on a case by case basis. Their holding applies to these facts and cannot be applied to other facts without valid analogy.

The illegal wiretap in Bartnicki occurred during negotiations between a Pennsylvania county school board and the teachers’ union. Someone – still unknown – taped a cell phone conversation between the president of the local union, Anthony Kane, Jr., and Gloria Bartnicki, the union’s "chief negotiator." The tape reached three news organizations and all published its contents. According to the court’s decision, Kane mentioned explosives as a negotiating device.

At one point, Kane said: "If they’re not gonna move for three percent, 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. (PAUSES). Really, uh, really and truthfully because this is, you know, this is bad news."

No doubt he was speaking hyperbolically.

As you all know, or learned at the June MDDC newsroom seminar, federal law and many state laws forbid the interception of cell phone conversations and the disclosure of the contents of such a recording once the person doing the tapingrealizes that the interception is illegal. The court accepted assertions by the news organizations that they did not know who recorded the tape, and did not know for a fact that the tape was recorded illegally.

The union participants brought a civil claim under the federal wiretap laws against the news organizations. The government joined the case. The U.S. Solicitor General argued that there was a public interest in deterring people from intercepting private conversations, and a public interest in "minimizing the harm to persons whose conversations have been illegally intercepted." The court agreed that those were important considerations. Nonetheless, the opinion says, the First Amendment values are higher.

First, generally speaking, when a news organization obtains truthful information about a matter of concern to the public, the state does not have the power to punish the publisher of that information, unless there is a "need of the highest order."

Second, if the news organization has not broken any law, the government may not punish the publication, even when the information was obtained illegally by a third party.

And here is the value judgment:

No matter how "mundane," conversations about the conduct of business that affects the public raise the First Amendment shield.

In the Bartnicki matter the court said that teacher wages are an important issue to the public: "The months of negotiations over the proper level of compensation for teachers at the Wyoming Valley West High School were unquestionably a matter of public concern, and respondents were clearly engaged in debate about that concern. That debate may be more mundane than the Communist rhetoric that inspired Justice Brandeis’ classic opinion in Whitney v. California, 274 U.S. at 372, but it is no less worthy of constitutional protection."