Silencing Cellular

When are people going to learn not to make threats over cell phones? In Pennsylvania in 1993, a disgruntled teachers union negotiator, chatting to colleague Gloria Bartnicki on the old wireless, suggested they might need to "blow off the front porches" of school board members' homes in order to get a salary increase. Days later, disc jockey Frederick Vopper was airing the tape on two different radio stations.

Bartnicki sued Vopper, the stations, and the man who supplied Vopper with the tape (who says he received it from an anonymous source), citing federal and state laws that ban the disclosure of recorded cell phone conversations. Eight years later, the case has arrived at the U.S. Supreme Court.

The justices heard oral arguments in early December, and now need to hash out whether a free press can trump privacy rights. It's a hairy issue, but an important one, since reporters acting in the public interest often depend on legally verboten sources to get their story. Meanwhile, individuals want assurance that remarks made in private remain private.

Chicago lawyer Frank Cicero is defending the related case of Rep. Jim McDermott (D-Wash.), who was accused of furnishing The New York Times with an incriminating tape of Republicans discussing then-House Speaker Newt Gingrich's impending ethics troubles. Cicero notes that in the majority of cases in which the courts have privileged privacy rights over free speech, the disclosed info was personal, not significant to public welfare. "The [tape aired in the] Bartnicki case was clearly in the public interest," he adds.

A decision for Bartnicki could dissuade journalists from fulfilling a primary mission—to expose public corruption to outside scrutiny. But if the court favors Vopper, a word to the wise: Don't use a cell phone to plot your next assassination.