200 F.3d 109 (3rd Cir. 1999), 98-7156, Bartnicki v Vopper

Docket Nº:98-7156
Citation:200 F.3d 109
Party Name:GLORIA BARTNICKI AND ANTHONY F. KANE, JR. v. FREDERICK W. VOPPER, A/K/A FRED WILLIAMS; KEYMARKET OF NEPA, INC., D/B/A WILK RADIO; LACKAZERNE INC., D/B/A WGBI RADIO; JANE DOE; JOHN DOE; JACK YOCUM FREDERICK W. VOPPER, A/K/A FRED WILLIAMS; KEYMARKET OF NEPA, INC., D/B/A WILK RADIO; LACKAZERNE, INC., D/B/A WGBI RADIO; JACK YOCUM, APPELLANTS UNITED STA
Case Date:December 27, 1999
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit
 
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200 F.3d 109 (3rd Cir. 1999)

GLORIA BARTNICKI AND ANTHONY F. KANE, JR.

v.

FREDERICK W. VOPPER, A/K/A FRED WILLIAMS; KEYMARKET OF NEPA, INC., D/B/A WILK RADIO; LACKAZERNE INC., D/B/A WGBI RADIO; JANE DOE; JOHN DOE; JACK YOCUM FREDERICK W. VOPPER, A/K/A FRED WILLIAMS; KEYMARKET OF NEPA, INC., D/B/A WILK RADIO; LACKAZERNE, INC., D/B/A WGBI RADIO; JACK YOCUM, APPELLANTS

UNITED STATES OF AMERICA, INTERVENOR (D.C. Civil No. 94-cv-01201)

No. 98-7156

United States Court of Appeals, Third Circuit

December 27, 1999

Argued October 5, 1998

On Appeal from the United States District Court for the Middle District of Pennsylvania District Judge: Hon. Edwin M. Kosik

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[Copyrighted Material Omitted]

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[Copyrighted Material Omitted]

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Attorneys for Appellants: Donald H. Brobst (Argued) Rosenn, Jenkins & Greenwald, L.L.P. Wilkes-Barre, Pennsylvania 18711

Attorneys for Appellees: Raymond P. Wendolowski (Argued) Cynthia R. Vullo Scott C. Gartley Koff, Wendolowski, Ferguson & Mangan, P.C. Wilkes-Barre, Pennsylvania 18701-2721

Attorneys for Intervenor, United States: Frank J. Aritz (Argued) Kingston, Pennsylvania 18704 Attorney for Appellant, Jack Yocum Frank W. Hunger Assistant Attorney General David M. Barasch United States Attorney Douglas N. Letter Scott R. McIntosh Attorneys, Appellate Staff Civil Division, Department of Justice Washington, D.C. 20530

Attorneys for Amicus, Pennsylvania State Education Association: Mark P. Widoff Pennsylvania State Education Association Harrisburg, Pennsylvania 17105 Jeremiah A. Collins John M. West Bredhoff & Kaiser, P.L.L.C. Washington, D.C. 20036

Before: Sloviter and Cowen, Circuit Judges, and Pollak,[*] District Judge

OPINION OF THE COURT

Sloviter, Circuit Judge.

At issue is whether the First Amendment precludes imposition of civil damages for the disclosure of portions of a tape recording of an intercepted telephone conversation containing information of public significance when the defendants, two radio stations, their reporter, and the individual who furnished the tape recording, played no direct or indirect role in the interception.

I.

BACKGROUND

A.

From the beginning of 1992 until the beginning of 1994, Wyoming Valley West

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School District was in contract negotiations with the Wyoming Valley West School District Teachers' Union (the "Teachers' Union") over the terms of the teachers' new contract. The negotiations, which were markedly contentious, generated significant public interest and were frequently covered by the news media.

Plaintiffs Gloria Bartnicki and Anthony F. Kane, Jr., as well as defendant Jack Yocum, all were heavily involved in the negotiating process. Bartnicki was the chief negotiator on behalf of the Teachers' Union. Kane, a teacher at Wyoming Valley West High School, served as president of the local union. Yocum served as president of the Wyoming Valley West Taxpayers' Association, an organization formed by local citizens for the sole purpose of opposing the Teachers' Union's proposals.

In May of 1993, Bartnicki, using her cellular phone, had a conversation with Kane. They discussed whether the teachers would obtain a three-percent raise, as suggested by the Wyoming Valley West School Board, or a six-percent raise, as suggested by the Teachers' Union. In the course of their phone conversation, Kane stated:

If they're not going to move for three percent, we're gonna have to go to their, their homes . . . to blow off their front porches, we'll have to do some work on some of those guys . . . . Really, uh, really and truthfully, because this is, you know, this is bad news (undecipherable) The part that bothers me, they could still have kept to their three percent, but they're again negotiating in the paper. This newspaper report knew it was three percent. What they should have said, `we'll meet and discuss this.' You don't discuss the items in public.

App. at 35-36. Bartnicki responded, "No," and, Kane continued, "You don't discuss this in public . . . . Particularly with the press." App. at 36.

This conversation, including the statements quoted above, was intercepted and recorded by an unknown person, and the tape left in Yocum's mailbox. Yocum retrieved the tape, listened to it, and recognized the voices of Bartnicki and Kane. He then gave a copy of the tape to Fred Williams, also known as Frederick W. Vopper, of WILK Radio and Rob Neyhard of WARM Radio, both local radio stations. Williams repeatedly played part of the tape on the air as part of the Fred Williams Show, a radio news/public affairs talk show which is broadcast simultaneously over WILK Radio and WGBI-AM. The tape was also aired on some local television stations and written transcripts were published in some newspapers.

B.

Bartnicki and Kane sued Yocum, Williams, WILK Radio, and WGBI Radio (hereafter "media defendants") under both federal and state law. They based their federal claims on Title III of the Omnibus Crime Control and Safe Streets Act of 1968, as amended by the Electronic Communications Privacy Act of 1986, 28 U.S.C. § 2510 et seq., and their state claims on the Pennsylvania Wiretapping and Electronic Surveillance Control Act, 18 Pa. Cons. Stat. § 5701 et seq. As relief, Bartnicki and Kane sought (1) actual damages in excess of $50,000, (2) statutory damages under 18 U.S.C. § 2520(c)(2), (3) liquidated damages under 18 Pa. Cons. Stat. § 5725(a)(1), (4) punitive damages, and (5) attorneys' fees and costs.

Bartnicki, Kane, and the defendants each moved for summary judgment. The District Court denied these motions on June 14, 1996 and denied defendants' motion to reconsider on November 8, 1996, specifically holding that imposing liability on the defendants would not violate the First Amendment.

The District Court subsequently certified two questions as controlling questions of law: "(1) whether the imposition of liability on the media Defendants under the [wiretapping statutes] solely for broadcasting the newsworthy tape on the Defendant

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Fred Williams' radio news/public affairs program, when the tape was illegally intercepted and recorded by unknown persons who were not agents of the Defendants, violates the First Amendment; and (2) whether imposition of liability under the aforesaid [wiretapping statutes] on Defendant Jack Yocum solely for providing the anonymously intercepted and recorded tape to the media Defendants violates the First Amendment." App. at 388. Williams, WILK Radio, and WGBI Radio subsequently petitioned for permission to appeal. Yocum filed an answer to the petition in which he joined the media defendants' request that we hear this appeal. We granted the petition by order dated February 26, 1998. The Pennsylvania State Education Association submitted a brief as amicus curiae in support of the appellees, and the United States has intervened as of right pursuant to 28 U.S.C. § 2403.

C.

The District Court had jurisdiction to consider claims based on the Omnibus Crime Control and Safe Streets Act of 1968 pursuant to 28 U.S.C. § 1331. It had supplemental jurisdiction pursuant to 28 U.S.C. § 1367 to consider claims based on the Pennsylvania Wiretapping and Electronic Surveillance Control Act. We have appellate jurisdiction to review the District Court's substantive determination pursuant to 28 U.S.C. § 1292(b).

The scope of our review in a permitted interlocutory appeal is limited to questions of law raised by the underlying order. We are not limited to answering the questions certified, however, and may address any issue necessary to decide the appeal. See Dailey v. National Hockey League, 987 F.2d 172, 175 (3d Cir. 1993).

We review the grant or denial of a motion for summary judgment de novo. See H.K. Porter Co. v. Pennsylvania Ins. Guaranty Ass'n, 75 F.3d 137, 140 (3d Cir. 1996). We are "required to apply the same test the district court should have utilized initially," to view inferences to be drawn from the underlying facts in the light most favorable to the party opposing the motion, and to take the non-movant's allegations as true whenever these allegations conflict with those of the movant. Goodman v. Mead Johnson & Co., 534 F.2d 566, 573 (3d Cir. 1976).

D.

The Federal Omnibus Crime Control and Safe Streets Act of 1968 (the "Federal Wiretapping Act") provides in relevant part:

(1) Except as otherwise specifically provided in this chapter any person who --

. . . . . (c) 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;

(d) intentionally uses, or endeavors to use, 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 . . .

shall be punished as provided in subsection (4) or shall be subject to suit as provided in subsection (5).

18 U.S.C. § 2511. It continues:

(a) In general. -- Except as provided in section 2511(2)(a)(ii), any person whose wire, oral, or electronic communication is intercepted, disclosed, or intentionally used in violation of this chapter may in a civil action recover from the person or entity which engaged in the violation such relief as may be appropriate.

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18 U.S.C. § 2520. The Federal Wiretapping Act thus creates civil and criminal causes of action against those who intentionally use or disclose to another the contents of a...

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