Bans on publishing intercepted communications / adequate alternat ive channels

[Volokh, Eugene]

        The Fifth Circuit just held that a TV station could be held liable
for publishing material that was obtained from an unlawfully taping of
cordless phone conversations.  Peavy v. WFAA-TV, 2000 WL 1051909 (July 31),
http://laws.findlaw.com/5th/9910272cv0.html .  This case is a bit more
complex than Bartnicki, on which the Court has granted cert, because here
the station may have conspired in the unlawful taping, rather than just
knowingly publishing something that was taped entirely by someone else.  But
the logic of the court's argument -- that the law is content-neutral and
passes the proper level of scrutiny -- would apply without regard to the
conspiracy issue.

        And this argument leads me to ask the following question:  Even if
the ban on publication of unlawfully taped conversations is content-neutral,
doesn't it fail even Ward v. Rock Against Racism scrutiny on the grounds
that it doesn't leave open adequate alternative channels?  Recall that this
isn't a restriction on residential picketing that leaves people free to
express exactly the same content in a march or a newspaper ad, or a
restriction on volume of music that leaves people free to express the same
words and tune a bit more quietly.  Rather, it's a total ban on the
communication of this information -- it's illegal to disclose the contents
of intercepted communication, knowing or having reason to know that they
were intercepted, in any way.  You can't play them on TV or on radio, you
can't publish a transcript in a newspaper, you can't post it up on the Web
site.  Where then are the adequate alternative channels, again even if the
law is seen as content-neutral?

        Peavy doesn't discuss this at all, because it applies O'Brien rather
than Ward.  But:

        (1) unlike the ban on interception, the ban on disclosure is clearly
a restriction on *speech* rather than conduct;

        (2) the Court has generally said that O'Brien scrutiny is much the
same as Ward scrutiny (see Ward itself and Clark);

        (3) the Court in Clark and Harlan in O'Brien did point out that
adequate alternatives were present;

        (4) though the adequate alternative channels prong is generally not
discussed in expressive conduct cases, this might well be just because in
the typical expressive conduct there are such obvious adequate (even if
imperfect) alternatives.

        The Court will clearly have to face this question in Bartnicki; what
do people think about it?  Would this require the Court to analyze the law
under strict scrutiny, whether or not the law is treated as content-neutral?
Or is there some way of avoiding or satisfying the adequate alternative
channels analysis?
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