Bartnicki v. Vopper: Landmark or Question Mark

Abstract

On May 21, 2001 the United States Supreme Court decided Bartnicki v. Vopper, a case that should be of great interest to media scholars and practitioners. The day after the opinion was handed down Tony Mauro and Shannon Duffy reported that it was “the first major press freedom case in a decade” (Mauro and Duffy 1). William P. Murphy, writing for the Pennsylvania Law Weekly, claimed the Bartnicki decision was “perhaps the most significant free press case in a decade” (Murphy 20). Bartnicki “raised the novel question concerning what degree of protection the First Amendment provides to intercepted wireless communications” about matters of public concern (First Amendment Protects 1). In addition to the question being of interest to journalists, the outcome was widely interpreted as positive for the news media. Evan P. Schultz said the Bartnicki case “was a major victory for the press” (Schultz 1). Approximately one week later James C. Goodale used the same words to describe the case. Thomas B. Kelley noted that “Although the Bartnicki decision is unquestionably a victory for freedom of the press and for the First Amendment generally, the full import of the decision must await determination in future litigation” (Kelley C20). It is likely that many First Amendment enthusiasts and proponents of vibrant privacy rights are troubled with the holding and/or its rationale. This may be true because rights granted from the First Amendment won and lost in the final analysis. If the Bartnicki case is a major milestone in free press jurisprudence, it is worthy of scholarly attention and analysis. In the event that it is something less, scholars, media practitioners, and publishers should be made aware of its utility and limitations. This article will provide a complete and searching examination of the Bartnicki case. We are convinced that analyzing the case will only satisfy a portion of our goal. In fact an analysis alone could leave the impression that we are insensitive to the access problems that reporters often confront. Since the Supreme Court was dealing with a legitimate problem that calls for resolution, we will offer an alternative solution that may be more satisfactory to some media scholars and practitioners. To adequately analyze this case it is necessary to thoroughly understand the events that resulted in the litigation and the case’s procedural history. While this is often true when analyzing cases, it is particularly important in this instance because the United States Supreme Court’s majority opinion provided only cryptic recounting of incipient facts and lower court occurrences. It is important to note that there was no trial in the United States District Court. However, the trial court memorandum opinion contained a background section and other factual information. Further operative facts are available from a number of other sources.