Whoops -- so sorry -- the most recent Bartnicki post was meant fo r another list.

[Volokh, Eugene]

> -----Original Message-----
> From: Volokh, Eugene [SMTP:VOLOKH at MAIL.LAW.UCLA.EDU]
> Sent: Friday, August 03, 2001 5:04 PM
> To:   CONLAWPROF at listserv.ucla.edu
> Subject:      Did Bartnicki treat the law as content-neutral?
> 
>         Since we discussed Bartnicki a while back on the list -- I believe
> in the thread related to whether copyright law was content-neutral -- I
> thought I'd take the liberty of passing along a post I recently raised on
> CONLAWPROF . . . .  I'm really puzzled by this, and I'd love to have
> y'all's input.
> 
> -----Original Message----- 
> From:   Volokh, Eugene [SMTP:VOLOKH at MAIL.LAW.UCLA.EDU] 
> Sent:   Thursday, August 02, 2001 2:56 PM 
> To:     CONLAWPROF at listserv.ucla.edu 
> Subject:        Did Bartnicki treat the law as content-neutral? 
> 
>         Did Bartnicki treat the law as content-neutral?  I thought on
> first reading that it did, but now I'm not sure. 
> 
>         Here's the discussion in Bartnicki of content-neutrality: 
> 
>                 We agree with petitioners that § 2511(1)(c) [which
> punished any person who "intentionally discloses, or endeavors to
> disclose, to any other person the contents of any wire, oral, or
> electronic communication, knowing or having reason to know that the
> information was obtained through the interception of a wire, oral, or
> electronic communication in violation of this subsection"], as well as its
> Pennsylvania analog, is in fact a content-neutral law of general
> applicability.  Deciding whether a particular regulation is content based
> or content neutral is not always a simple task. . . .  As a general rule,
> laws that by their terms distinguish favored speech from disfavored speech
> on the basis of the ideas or views expressed are content based.  In
> determining whether a regulation is content based or content neutral, we
> look to the purpose behind the regulation; typically, "[g]overnment
> regulation of expressive activity is content neutral so long as it is
> justified without reference to the content of the regulated speech."  Ward
> v. Rock Against Racism. [fn 9:  "But while a content-based purpose may be
> sufficient in certain circumstances to show that a regulation is content
> based, it is not necessary to such a showing in all cases. . . .  Nor will
> the mere assertion of a content-neutral purpose be enough to save a law
> which, on its face, discriminates based on content."  Turner Broadcasting
> System, Inc. v. FCC.]
> 
>                 In this case, the basic purpose of the statute at issue is
> to "protec[t] the privacy of wire[, electronic,] and oral communications."
> The statute does not distinguish based on the content of the intercepted
> conversations, nor is it justified by reference to the content of those
> conversations.  Rather, the communications at issue are singled out by
> virtue of the fact that they were illegally intercepted--by virtue of the
> source, rather than the subject matter.
> 
>                 On the other hand, the naked prohibition against
> disclosures is fairly characterized as a regulation of pure speech.
> Unlike the prohibition against the "use" of the contents of an illegal
> interception in § 2511(1)(d), subsection (c) [the restriction on
> communication of illegal interceptions] is not a regulation of conduct.
> It is true that the delivery of a tape recording might be regarded as
> conduct, but given that the purpose of such a delivery is to provide the
> recipient with the text of recorded statements, it is like the delivery of
> a handbill or a pamphlet, and as such, it is the kind of speech that the
> First Amendment protects. [fn 11:  Put another way, what gave rise to
> statutory liability in this case was the information communicated on the
> tapes.  See Boehner v. McDermott, 191 F.3d 463, 484 (CADC 1999) (Sentelle,
> J., dissenting) ("What . . . is being punished . . . here is not conduct
> dependent upon the nature or origin of the tapes; it is speech dependent
> on the nature of the contents").]  As the majority below put it, "[i]f the
> acts of disclosing and publishing information do not constitute speech, it
> is hard to imagine what does fall within that category, as distinct from
> the category of expressive conduct."
> 
> This analysis seems contradictory:  Does the "[o]n the other hand,"
> coupled with footnote 11, suggest that "the naked prohibition against
> disclosure" is not a content-neutral restriction?  Or is this disclosure
> prohibition "a content-neutral law of general applicability," because "the
> communications at issue are singled out by virtue of the fact that they
> were illegally intercepted -- by virtue of the source, rather than the
> subject matter"?  Unfortunately, the rest of the opinion doesn't give many
> further clues, since it doesn't explicitly apply either the Ward test or
> strict scrutiny -- recall that the opinion is written by Justice Stevens,
> who isn't a big buff of either framework, or of the
> content-neutral/content-based description.  It generally cites cases
> involving content-based restrictions, such as Florida Star, but I'm not
> sure that's conclusive proof, either.
> 
>         Any thoughts on this?  Given the importance of the
> content-neutral/content-based distinction to at least eight of the
> Justices (even if not to Justice Stevens), the resolution of this question
> might be pretty significant.
> 
>         Eugene 
> 
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