Bartnicki

[Volokh, Eugene]

Dear Larry:

        I just read and much enjoyed your amicus brief in Bartnicki, and by
coincidence just today I taught the law of content-neutral speech
restrictions using a problem based on Bartnicki.  The more I think about it,
the more it seems to me that the strongest argument against the law is that
*even if* the restriction is content-neutral (and I agree that, properly
seen, it is not), it still fails under Ward because it doesn't leave open
adequate alternative channels:  The media simply can't communicate the
information in any other way (unless it can somehow independently discover
it without revealing it in the process, which often won't be the case).  If
the sign ban in City of Ladue was condemned on the grounds that the
alternatives that it left were inadequate, then a fortiori this law leaves
too few alternatives -- but one almost doesn't need a comparison, since the
alternatives for communicating the information are indeed so obviously
inadequate (and virtually nonexistent).

                You of course touch on this on p. 13, when you stress that
the law "prohibits the press from disclosing the contents of intercepted
communications at any time, in any place, or in any manner," but it
surprised me that so few other briefs even mentioned it, and that virtually
no-one talked about it in detail.  Is there something I'm missing here, some
reason why this wouldn't be a very strong claim under Ward?

                Is it just because the other side is so busy arguing the
O'Brien test, which doesn't formally include an "adequate alternative
channels" test?  It seems to me that you're surely right when you say that
this is a restriction on speech, and thus the standard should be at least
Ward rather than O'Brien -- and given Harlan's concurrence in O'Brien and
the language about alternative channels in Clark, it seems to me that the
adequate alternative channels prong might well be a part of the O'Brien
test, too (albeit one that's often, though not always, easily satisfied as
to expressive conduct case).

                In any event, I'm sure you're swamped, but if you ever have
a moment, I'd love to hear your thoughts on this.  Thanks,

                Eugene
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