First Amendment Question

wasserma at fiu.edu wasserma at fiu.edu
Sat Jan 21 10:54:54 PST 2006


I agree with Marty that it seems pretty clear that this was a content-neutral 
speech restriction-- Congress sought to protect all private conversations and 
the law applied to all conversations.  The language that Eugene quotes I read 
as Stevens's effort to make clear that the disclosure provision is a speech 
regulation, as opposed to a generally applicable regulation of conduct that 
should receive only rational basis review (as I think the government had tried 
to argue).  There perhaps is a sense that Congress protected these 
conversations because their contents are "private" and we are uncomfortable 
hearing private speech content--perhaps suggesting a content link 
underlying the law.  But that always seemed a stretch.

On the other hand, even if the law is content-neutral, I do not believe that the 
majority applied intermediate scrutiny to the law--I think Daily Mail is a 
strict-scrutiny rule.  The point I am trying to make on this issue is that, even 
if intermediate scrutiny had been applied, striking down the law was an 
unusual outcome.  But Eugene's point is very well-taken that the disclosure 
provision probably would not have survived a Ward inquiry anyway.  Thanks 
for the additional point.


Howard Wasserman
FIU College of Law


> From: marty.lederman at comcast.net
> Date: 2006/01/21 Sat PM 01:06:39 EST
> To: "Volokh, Eugene" <VOLOKH at law.ucla.edu>,  
<CONLAWPROF at lists.ucla.edu>
> Subject: RE: First Amendment Question
> 
> Why isn't it "completely clear" that the disclosure prohibition was content-
neutral, and that the Court treated it as such?  Quite literally, the content of 
the disclosure was immaterial to statutory culpability -- you violate the 
statute whether you reveal intercepted intimacies or intercepted discussions 
of the weather.  And the purpose of the statute is not to protect the privacy of 
communications of any particular content -- it's to protect the privacy of 
telephone communications generally, whatever their subject matter or 
viewpoint.
> 
> This doesn't determine, of course, what the proper constitutional test, or 
result, should be -- but I don't see why the usual concerns associated with 
content-based restrictions would be present here.
> 
> -------------- Original message -------------- 
> From: "Volokh, Eugene" <VOLOKH at law.ucla.edu> 
> 
> > It's not completely clear that the disclosure (as opposed to 
> > interception) portion of the Bartnicki law was content-neutral, or that the 
> > court treated it as content-neutral; the Court's opinion strikes me as 
ambiguous 
> > on that: 
> > 
> > We agree with petitioners that §2511(1)(c), 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." Turner Broadcasting System, Inc. v. FCC, 512 U. S. 622, 
642-643 
> > (1994). 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, 491 U. S. 781, 791 (1989).9 
> > 
> > In this case, the basic purpose of the statute at issue is to "protec[t] 
> > the privacy of wire[, electronic,] and oral communications." S. Rep. No. 
1097, 
> > 90th Cong., 2d Sess., 66 (1968). 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) 
> > 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.[footnote: 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." 200 F. 3d, at 120. 
> > 
> > Also, Madsen and Schenck, the abortion picketing cases, struck down at 
> > least parts of content-neutral injunctions. 
> > 
> > Finally, note that while the Court didn't use the standard Ward analysis 
> > in this case, I think the Bartnicki law -- even if content-neutral -- would 
have 
> > run afoul of the ample alternative channels prong of that test. There will 
> > generally be no ample alternative channels for disclosing information 
that 
> > someone else intercepted and sent to you -- even if you're legally 
allowed to 
> > try to discover the data by asking the parties to the conversation 
(unclear, 
> > since the law bans all use of the intercepted information, which might 
well 
> > include use for deciding whom to interview and what to ask in order to 
get the 
> > information), the parties will often refuse to answer. 
> > 
> > Eugene 
> > 
> > > -----Original Message----- 
> > > From: conlawprof-bounces at lists.ucla.edu 
> > > [mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of 
> > > wasserma at fiu.edu 
> > > Sent: Saturday, January 21, 2006 8:12 AM 
> > > To: CONLAWPROF at lists.ucla.edu 
> > > Subject: First Amendment Question 
> > > 
> > > 
> > > Quick First Amendment question: I want to say that Bartnicki 
> > > v. Vopper is an 
> > > exceedingly rare case in that the Court struck down a content-neutral 
> > > regulation, purportedly by appying intermediate scrutiny. 
> > > 
> > > Can anyone point me to other high-profile examples where a 
> > > content-neutral 
> > > regulation fell? The two that leap to my mind are Village of 
> > > Stratton (door- to-door solicitation) and City of Ladue 
> > > (political signs on front yards). Can 
> > > folks think of other examples, say going back to the late 
> > > Burger/early 
> > > Rehnquist Courts? 
> > > 
> > > Off-list responses are fine. Thanks. 
> > > 
> > > 
> > > Howard Wasserman 
> > > FIU College of Law 
> > > 
> > > _______________________________________________ 
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