Media Law Prof Blog

Editor: Christine A. Corcos
Louisiana State Univ.

Thursday, July 26, 2007

First Circuit Upholds Lower Court Decision That Tape of Arrest, Warrentless Search Posted on Website Protected by First Amendment

The First Circuit Court of Appeals has ruled that a political activist is likely to prevail on the merits, and is entitled to a preliminary injunction preventing the Massachusetts State Police from prosecuting her from posting a tape on her Web site showing an arrest and warrantless search.

"This case presents the question of whether the First Amendment prevents Massachusetts law enforcement officials from interfering with an individual's internet posting of an audio and video recording of an arrest and warrantless search of a private residence, when the individual who posted the recording had reason to know at the time she accepted the recording that it was illegally recorded. The appellant state police officers challenge the district court's grant of a preliminary injunction enjoining them from taking any action that interferes with appellee Mary Jean's posting of the recording on a website. We find this case materially indistinguishable from the Supreme Court's decision in Bartnicki v. Vopper, 532 U.S. 514 (2001), and thus conclude that Jean has a reasonable likelihood of success on the merits of her claim that the First Amendment protects the posting of a recording under such circumstances. Consequently, we uphold the preliminary injunction....Under 28 U.S.C. §1292(a)(1), we have jurisdiction to hear an interlocutory appeal of an order granting a preliminary injunction. We review the grant or denial of a preliminary injunction for abuse of discretion....In considering the motion for a preliminary injunction, a district court weighs four factors: (1) the plaintiff's likelihood of success on the merits; (2) the potential for irreparable harm in the absence of an injunction; (3) whether issuing an injunction will burden the defendants less than denying an injunction would burden the plaintiffs; and (4) the effect, if any, on the public interest.... The police contest only the first factor: Jean's likelihood of success on the merits. That inquiry is the most important part of the preliminary injunction assessment: “[I]f the moving party cannot demonstrate that he is likely to succeed in his quest, the remaining factors become matters of idle curiosity.”... Moreover, to the extent that the police could have argued that the other three factors assist in demonstrating abuse of discretion by the district court, they have now waived those arguments by failing to raise them on appeal. Thus, the question before us is whether the district court erred in granting a preliminary injunction prohibiting the enforcement of Mass. Gen. Laws ch. 272, §99 against Jean for her receipt and internet posting of the audio/video recording of Pechonis’ arrest. Like the district court, we evaluate whether, in light of the record before us, she has a reasonable likelihood of success on the merits."


" As a preliminary matter, we note that, like the statutes in question in Bartnicki, section 99 is a “content-neutral law of general applicability,” id. at 526. It “does not distinguish based on the content of the intercepted conversations, nor is it justified by reference to the content of those conversations.” Id. Like the delivery of the recording in Bartnicki, which the Court analogized to “the delivery of a handbill or a pamphlet,” id. at 527, section 99's prohibition against disclosure also constitutes a regulation of “pure speech.” As did the Court in Bartnicki, we consider the interests implicated by the disclosure of the information. With respect to the state's interest in protecting the privacy of its citizens, the privacy interests discussed in Bartnicki are less compelling here. Bartnicki emphasized the importance of “encouraging the uninhibited exchange of ideas and information among private parties,” id. at 532, and of avoiding the “‘[f]ear or suspicion that one's speech is being monitored by a stranger,’” id. at 533 (quoting President's Commission on Law Enforcement and Administration of Justice, The Challenge of Crime in a Free Society 202 (1967)). This interest in protecting private communication is clearly implicated by the interception of a private cell phone conversation in Bartnicki. However, this interest is virtually irrelevant here, where the intercepted communications involve a search by police officers of a private citizen's home in front of that individual, his wife, other members of the family, and at least eight law enforcement officers. Moreover, the state's interest in deterring illegal interception by punishing a subsequent publisher of information — already accorded little weight by the Court in Bartnicki — receives even less weight here, where the identity of the interceptor is known. In Bartnicki, the government argued that punishing a subsequent publisher of information “remov[es] an incentive for parties to intercept private conversations” by deterring would-be publishers of illegally intercepted material and thus reducing the demand for such material. Id. at 529-30 & n.17. This argument rested, in part, on the assumption that the interceptors themselves could not be punished because their identities usually were unknown. Unimpressed, the Court explained that the available evidence did not support this assumption of anonymity. First, the legislative record did not indicate that a significant number of interceptors were anonymous. Id. at 531 n.17. Moreover, fewer than ten of the 206 cases filed under § 2511 (the federal wiretap statute) involved an anonymous interceptor. Id. Thus, the Court concluded that the relatively small number of anonymous interceptors meant that it was not “difficult to identify the persons responsible for illegal interceptions” and, consequently, not “necessary to prohibit disclosure by third parties with no connection to, or responsibility for, the initial illegality,” id. Given this logic, there is a better argument for prosecuting a subsequent publisher of information when the interceptor is anonymous. In such a situation, the government is unable to punish the interceptor directly; punishing the subsequent publisher might be more justifiable as a deterrent. However, even after taking into account the anonymity of the interceptor in Bartnicki, the Court held that “[a]lthough there are some rare occasions in which a law suppressing one party's speech may be justified by an interest in deterring criminal conduct by another, this is not such a case.” Id. at 530 (citation omitted). Thus, where, as here, the identity of the interceptor is known, there is even less justification for punishing a subsequent publisher than there was in Bartnicki.

On the public interest side of the equation, the broad interest in permitting “the publication of truthful information of public concern,” described in Bartnicki, id. at 534-35, applies here as well. The police do not deny that the event depicted on the recording — a warrantless and potentially unlawful search of a private residence — is a matter of public concern. The police also concede that, like the defendants in Bartnicki, Jean played no part in the illegal interception. Thus, the only possible ground for distinguishing this case from Bartnicki is the assertion of the police that Jean, unlike the defendants in Bartnicki, did not obtain the recording lawfully. The Massachusetts interception statute prohibits “willfully commit[ting] an interception,” Mass. Gen. Laws ch. 272, §99(C)(1), and “willfully disclos[ing] … the contents of any wire or oral communication, knowing that the information was obtained through interception,” id. §99(C)(3). It likewise forbids “permit[ting],” “participat[ing] in a conspiracy to commit,” or acting as an “accessory to a person who commits” a violation of another subsection of the statute. Id. §99(C)(6). By willfully recording his arrest and then giving the recording to Jean, Pechonis arguably would have violated both section 99(C)(1) and section 99(C)(3). Thus, the police argue, by voluntarily accepting the tape from Pechonis and then disseminating it, Jean assisted, conspired, or served as an accessory to Pechonis’ violation of section 99(C)(3) and thereby independently violated section 99(C)(6).

"Elaborating on this point, the police contend that “the disseminator's knowledge, when she obtains the tape, of the interceptor's identity and of the unlawfulness of the interception is determinative of whether she has obtained it lawfully or unlawfully for purposes of a Bartnicki analysis.” They emphasize that, in Bartnicki, the tape was placed anonymously in Yocum's mailbox, and Yocum received the tape without knowing its contents until after he played it. 532 U.S. at 519. Thus, they argue, “[t]he break in the chain between the interceptor and the defendants became the pivotal point in the Court's balancing of interests because the break meant that the defendants had not obtained the tape unlawfully.” In contrast, “Jean knowingly participated in [Pechonis’] disclosure and became the essential but-for first link in the chain.” In short, appellants insist that the “essential distinction between this case and Bartnicki” was that “[i]n Bartnicki, the interceptor had already disseminated the tape before Yocum passively received it and disseminated it further; … . In the present case, it was Jean's active collaboration with Pechonis that made his unlawful dissemination possible in the first instance.  We will assume that Jean's conduct, viewed through the prism of section 99(C)(3) and section 99(C)(6), may have been unlawful under the Massachusetts statute. She disclosed to others the contents of an oral communication that she knew had been recorded illegally, and she arguably participated with Pechonis in a conspiracy to disclose the content of the illegally recorded oral communication. However, whether Jean's conduct fell within the statute is not determinative — indeed, we note that the conduct of both Yocum and Vopper in Bartnicki would have fallen within this statute. Rather, the determinative question is whether the First Amendment, as applied by the Supreme Court in Bartnicki, permits Massachusetts to criminalize Jean's conduct. On this question, we find the arguments of the police unpersuasive.
The police note correctly that, in Bartnicki, Yocum did not realize that the tape had been recorded illegally at the time he received it in his mailbox. Yocum's knowledge of the illegality of the interception arose only later, when he listened to the tape. Although the police argue that this delay between the receipt of the tape and the recognition of its illegality caused a critical break in the chain, the Supreme Court attached no significance to Yocum's receipt of the tape without knowledge of its contents. If the disconnect in time between the receipt of the tape and the later recognition that the tape had been recorded illegally was critical to the premise that Yocum had obtained the tape lawfully, the Court would have distinguished between Yocum and Vopper, who received the tape directly from Yocum and thus knew the tape had been recorded illegally at the time that he received it.... Like Vopper, Jean already had reason to know that the tape was illegally intercepted at the time that she received it; consequently, the Court's conclusion that Vopper obtained the tape lawfully applies equally to Jean.
The police still insist on a distinction between Jean and the defendants in Bartnicki because Jean's “active collaboration” with Pechonis as the essential “first link” in the chain of dissemination distinguishes this case from Bartnicki. They contend that Jean “had the opportunity to prevent the dissemination” and that “no one farther down the chain would have the same opportunity.” We also find this distinction unpersuasive. Critically, in Bartnicki, Yocum had the opportunity to prevent further disclosure. Although he did not know the tape was illegally intercepted when he received it, he had that knowledge at the time he disclosed the tape to the school board and Vopper. Thus, both Yocum and Jean could have prevented further dissemination by refusing to disclose the tape. In light of this similarity, the fact that Yocum received the tape “passively” and Jean received the tape “actively” is a distinction without a difference: both made the decision to proceed with their disclosures knowing that the tape was illegally intercepted, yet the Supreme Court held in Bartnicki that such a knowing disclosure is protected by the First Amendment.

"We conclude that the government interests in preserving privacy and deterring illegal interceptions are less compelling in this case than in Bartnicki, and Jean's circumstances are otherwise materially indistinguishable from those of the defendants in Bartnicki, whose publication of an illegally intercepted tape was protected by the First Amendment. Jean's publication of the recording on her website is thus entitled to the same First Amendment protection. Consequently, we agree with the district court that Jean has a reasonable likelihood of success on the merits of her suit for a permanent injunction. The district court's decision to grant Jean's request for a preliminary injunction is affirmed."

Read the entire opinion here.

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