Document Type

Article

Publication Date

2011

Abstract

How many ways can one approach a First Amendment analysis? What influences a lawyer or a judge to select one analytical approach over another? And what is the long-term effect of a court's choice of one over another? In Bartnicki v. Vopper, a 2001 case in which the U.S. Supreme Court considered federal and state statutes prohibiting the disclosure of illegally intercepted telephone conversations, we are privileged to have a small laboratory through which to study the first two questions. And, from the vantage point of ten years, we ought to be able to make some informed predictions as to the third.

In Bartnicki, the US Supreme' Court held that the First Amendment gave the news media a right to publish truthful information on matters of public concern, even if unlawfully acquired, provided the publisher did not participate in the unlawful conduct. How the Court ultimately reached that conclusion is one principal focus of this Article, precisely because the story of this litigation reveals so much about alternative First Amendment analyses and the process of influencing the courts' choices among them.

Part II of this Article recounts the underlying facts of the Bartnicki case and its procedural posture up to certiorari. Part III examines the two contending precedents initially asserted by the parties and accepted as the basis for analysis in the district court. Part IV looks at the shift to doctrinal analysis in the court of appeals, prompted at least in part by the federal government's entry into the case. Part V studies the proceedings before the U.S. Supreme Court, with emphasis on the participation and analytical approach of prominent media lawyers. Part VI dissects the opinion and the shift to an ad hoc balancing approach, particularly in light of the press arguments, while Part VII ventures some predictions about the significance of the decision with the WikiLeaks.com controversy as a backdrop.

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