BARTNICKI et al. v. VOPPER, aka WILLIAMS, et al.

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514 OCTOBER TERM, 2000
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BARTNICKI et al. v. VOPPER, aka WILLIAMS, et al.
certiorari to the united states court of appeals for
the third circuit
No. 99–1687. Argued December 5, 2000—Decided May 21, 2001*
During contentious collective-bargaining negotiations between a union
representing teachers at a Pennsylvania high school and the local school
board, an unidentified person intercepted and recorded a cell phone con-
versation between the chief union negotiator and the union president
(hereinafter petitioners). After the parties accepted a nonbinding arbi-
tration proposal generally favorable to the teachers, respondent Vopper,
a radio commentator, played a tape of the intercepted conversation
on his public affairs talk show in connection with news reports about
the settlement. Petitioners filed this damages suit under both federal
and state wiretapping laws, alleging, among other things, that their con-
versation had been surreptitiously intercepted by an unknown person;
that respondent Yocum, the head of a local organization opposed to the
union’s demands, had obtained the tape and intentionally disclosed it to,
inter alios, media representatives; and that they had repeatedly pub-
lished the conversation even though they knew or had reason to know
that it had been illegally intercepted. In ruling on cross-motions for
summary judgment, the District Court concluded that, under the statu-
tory language, an individual violates the federal Act by intentionally
disclosing the contents of an electronic communication when he or
she knows or has reason to know that the information was obtained
through an illegal interception, even if the individual was not involved
in that interception; found that the question whether the interception
was intentional raised a genuine issue of material fact; and rejected
respondents’ defense that they were protected by the First Amendment
even if the disclosures violated the statutes, finding that the statutes
were content-neutral laws of general applicability containing no indicia
of prior restraint or the chilling of free speech. The Third Circuit ac-
cepted an interlocutory appeal, and the United States, also a petitioner,
intervened to defend the federal Act’s constitutionality. Applying in-
termediate scrutiny, the court found the statutes invalid because they
deterred significantly more speech than necessary to protect the private
*Together with No. 99–1728, United States v. Vopper, aka Williams,
et al., also on certiorari to the same court.

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interests at stake, and remanded the case with instructions to enter
summary judgment for respondents.
Held: The First Amendment protects the disclosures made by respond-
ents in this suit. Pp. 522–535.
(a) Title III of the Omnibus Crime Control and Safe Streets Act of
1968, as amended, generally prohibits the interception of wire, elec-
tronic, and oral communications. Title 18 U. S. C. § 2511(1)(a) applies to
the person who willfully intercepts such communications and subsection
(c) to any person who, knowing or having reason to know that the com-
munication was obtained through an illegal interception, willfully dis-
closes its contents. Pp. 522–524.
(b) Because of this suit’s procedural posture, the Court accepts that
the interception was unlawful and that respondents had reason to know
that. Accordingly, the disclosures violated the statutes. In answering
the remaining question whether the statutes’ application in such circum-
stances violates the First Amendment, the Court accepts respondents’
submissions that they played no part in the illegal interception, that
their access to the information was obtained lawfully, and that the con-
versations dealt with a matter of public concern. Pp. 524–525.
(c) Section 2511(1)(c) is a content-neutral law of general applicability.
The statute’s purpose is to protect the privacy of wire, electronic, and
oral communications, and it singles out such communications by virtue
of the fact that they were illegally intercepted—by virtue of the source
rather than the subject matter. Cf. Ward v. Rock Against Racism, 491
U. S. 781, 791. On the other hand, the prohibition against disclosures
is fairly characterized as a regulation of speech. Pp. 526–527.
(d) In New York Times Co. v. United States, 403 U. S. 713, this Court
upheld the press’ right to publish information of great public concern
obtained from documents stolen by a third party. In so doing, this
Court focused on the stolen documents’ character and the consequences
of public disclosure, not on the fact that the documents were stolen.
Ibid. It also left open the question whether, in cases where information
has been acquired unlawfully by a newspaper or by a source, govern-
ment may punish not only the unlawful acquisition, but also the ensuing
publication. Florida Star v. B. J. F., 491 U. S. 524, 535, n. 8. The issue
here is a narrower version of that question: Where the publisher has
lawfully obtained information from a source who obtained it unlawfully,
may the government punish the ensuing publication based on the defect
in a chain? The Court’s refusal to construe the issue more broadly is
consistent with its repeated refusal to answer categorically whether
the publication of truthful information may ever be punished consistent
with the First Amendment. Accordingly, the Court considers whether,

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given the facts here, the interests served by § 2511(1)(c) justify its re-
strictions on speech. Pp. 527–529.
(e) The first interest identified by the Government—removing an in-
centive for parties to intercept private conversations—does not justify
applying § 2511(1)(c) to an otherwise innocent disclosure of public in-
formation. The normal method of deterring unlawful conduct is to
punish the person engaging in it. It would be remarkable to hold that
speech by a law-abiding possessor of information can be suppressed in
order to deter conduct by a non-law-abiding third party. In virtually
all § 2511(1)(a), (c), or (d) violations, the interceptor’s identity has been
known. There is no evidence that Congress thought that the prohibi-
tion against disclosures would deter illegal interceptions, and no evi-
dence to support the assumption that the prohibition reduces the num-
ber of such interceptions. Pp. 529–532.
(f) The Government’s second interest—minimizing the harm to per-
sons whose conversations have been illegally intercepted—is consid-
erably stronger. Privacy of communication is an important interest.
However, in this suit, privacy concerns give way when balanced against
the interest in publishing matters of public importance. One of the
costs associated with participation in public affairs is an attendant
loss of privacy. The profound national commitment to the principle that
debate on public issues should be uninhibited, robust, and wide open
supported this Court’s holding in New York Times Co. v. Sullivan, 376
U. S. 254, that neither factual error nor defamatory content, nor a com-
bination of the two, sufficed to remove the First Amendment shield
from criticism of official conduct. Parallel reasoning requires the con-
clusion that a stranger’s illegal conduct does not suffice to remove the
First Amendment shield from speech about a matter of public concern.
Pp. 532–535.
200 F. 3d 109, affirmed.
Stevens, J., delivered the opinion of the Court, in which O’Connor,
Kennedy, Souter, Ginsburg, and Breyer, JJ., joined. Breyer, J.,
filed a concurring opinion, in which O’Connor, J., joined, post, p. 535.
Rehnquist, C. J., filed a dissenting opinion, in which Scalia and Thomas,
JJ., joined, post, p. 541.
Jeremiah A. Collins argued the cause for petitioners in
No. 99–1687. With him on the briefs were Raymond P.
Wendolowski and Scott C. Gartley.
Solicitor General Waxman argued the cause for the
United States in No. 99–1728. With him on the briefs were

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Assistant Attorney General Ogden, Deputy Solicitor Gen-
eral Dreeben, Jeffrey A. Lamken, and Douglas N. Letter.
Lee Levine argued the cause for respondents Vopper et al.
With him on the brief was Jay Ward Brown. Thomas C.
Goldstein argued the cause for respondent Yokum. With
him on the brief were Erik S. Jaffe and Frank J. Aritz.*
Justice Stevens delivered the opinion of the Court.
These cases raise an important question concerning what
degree of protection, if any, the First Amendment provides
to speech that discloses the contents of an illegally inter-
cepted communication. That question is both novel and nar-
row. Despite the fact that federal law has prohibited such
disclosures since 1934,1 this is the first time that we have
confronted such an issue.
The suit at hand involves the repeated intentional dis-
closure of an illegally intercepted cellular telephone conver-
sation about a public issue. The persons who made the dis-
closures did not participate in the interception, but they
did know—or at least had reason to know—that the inter-
*Briefs of amici curiae urging reversal were filed for the Cellular Tele-
communications Industry Association by Howard J. Symons and Michael
F. Altschul; and for Representative John A. Boehner by Michael A. Car-
vin and David H. Thompson.
Briefs of amici curiae urging affirmance were filed for the American
Civil Liberties Union et al. by Steven Shapiro; for Dow Jones & Co., Inc.,
by Theodore B. Olson, Theodore J. Boutrous, Jr., and Jack M. Weiss; for
the Liberty Project by Nory Miller and Julia M. Carpenter; for Media
Entities and Organizations by Floyd Abrams, George Freeman, Adam
Liptak, Richard A. Bernstein, Jerry S. Birenz, Henry S. Hoberman,
David A. Schulz, Eve Burton, Susanna M. Lowy, Harold W. Fuson, Jr.,
Barbara W. Wall, Anne Noble, Kenneth Vittor, Rene´ P. Milam, Lucy
Dalglish, Bruce W. Sanford, and Eric Lieberman; for WFAA–TV et
al. by Laurence H. Tribe, Jonathan S. Massey, William D. Sims, Jr.,
Thomas S. Leatherbury, and Marie R. Yeates; and for Representative
James A. McDermott by Frank Cicero, Jr., Christopher Landau, and
Daryl Joseffer.
1 See 48 Stat. 1069, 1103.

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ception was unlawful. Accordingly, these cases present a
conflict between interests of the highest order—on the one
hand, the interest in the full and free dissemination of in-
formation concerning public issues, and, on the other hand,
the interest in individual privacy and, more specifically, in
fostering private speech. The Framers of the First Amend-
ment surely did not foresee the advances in science that
produced the conversation, the interception, or the conflict
that gave rise to this action. It is therefore not surprising
that Circuit judges, as well as the Members of this Court,
have come to differing conclusions about the First Amend-
ment’s application to this issue. Nevertheless, having con-
sidered the interests at stake, we are firmly convinced that
the disclosures made by respondents in this suit are pro-
tected by the First Amendment.
I
During 1992 and most of 1993, the Pennsylvania State Ed-
ucation Association, a union representing the teachers at the
Wyoming Valley West High School, engaged in collective-
bargaining negotiations with the school board. Petitioner
Kane, then the president of the local union, testified that
the negotiations were “ ‘contentious’ ” and received “a lot of
media attention.” App. 79, 92. In May 1993, petitioner
Bartnicki, who was acting as the union’s “chief negotiator,”
used the cellular phone in her car to call Kane and engage
in a lengthy conversation about the status of the negotia-
tions. An unidentified person intercepted and recorded that
call.
In their conversation, Kane and Bartnicki discussed the
timing of a proposed strike, id., at 41–45, difficulties cre-
ated by public comment on the negotiations, id., at 46, and
the need for a dramatic response to the board’s intransi-
gence. At one point, Kane said: “ ‘If they’re not gonna move
for three percent, we’re gonna have to go to their, their

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homes . . . . To blow off their front porches, we’ll have to
do some work on some of those guys. (PAUSES). Really,
uh, really and truthfully because this is, you know, this is
bad news. (UNDECIPHERABLE).’ ” Ibid.
In the early fall of 1993, the parties accepted a nonbinding
arbitration proposal that was generally favorable to the
teachers. In connection with news reports about the set-
tlement, respondent Vopper, a radio commentator who had
been critical of the union in the past, played a tape of the
intercepted conversation on his public affairs talk show.
Another station also broadcast the tape, and local news-
papers published its contents. After filing suit against
Vopper and other representatives of the media, Bartnicki
and Kane (hereinafter petitioners) learned through dis-
covery that Vopper had obtained the tape from respondent
Jack Yocum, the head of a local taxpayers’ organization that
had opposed the union’s demands throughout the negotia-
tions. Yocum, who was added as a defendant, testified that
he had found the tape in his mailbox shortly after the inter-
ception and recognized the voices of Bartnicki and Kane.
Yocum played the tape for some members of the school
board, and later delivered the tape itself to Vopper.
II
In their amended complaint, petitioners alleged that their
telephone conversation had been surreptitiously intercepted
by an unknown person using an electronic device, that Yocum
had obtained a tape of that conversation, and that he in-
tentionally disclosed it to Vopper, as well as other individ-
uals and media representatives. Thereafter, Vopper and
other members of the media repeatedly published the con-
tents of that conversation. The amended complaint alleged
that each of the defendants “knew or had reason to know”
that the recording of the private telephone conversation had
been obtained by means of an illegal interception. Id.,

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at 27. Relying on both federal and Pennsylvania statu-
tory provisions, petitioners sought actual damages, statu-
tory damages, punitive damages, and attorney’s fees and
costs.2
After the parties completed their discovery, they filed
cross-motions for summary judgment. Respondents con-
tended that they had not violated the statute because
(a) they had nothing to do with the interception, and (b) in
any event, their actions were not unlawful since the conver-
sation might have been intercepted inadvertently. More-
over, even if they had violated the statute by disclosing the
intercepted conversation, respondents argued, those disclo-
sures were protected by the First Amendment. The Dis-
trict Court rejected the first statutory argument because,
under the plain statutory language, an individual violates the
federal Act by intentionally disclosing the contents of an
electronic communication when he or she “know[s] or ha[s]
reason to know that the information was obtained” through
an illegal interception.3 App. to Pet. for Cert. in No. 99–
1687, pp. 53a–54a (emphasis deleted). Accordingly, actual
involvement in the illegal interception is not necessary in
order to establish a violation of that statute. With respect
to the second statutory argument, the District Court agreed
that petitioners had to prove that the interception in ques-
2 Either actual damages or “statutory damages of whichever is the
greater of $100 a day for each day of violation or $10,000” may be re-
covered under 18 U. S. C. § 2520(c)(2); under the Pennsylvania Act, the
amount is the greater of $100 a day or $1,000, but the plaintiff may also
recover punitive damages and reasonable attorney’s fees. 18 Pa. Cons.
Stat. § 5725(a) (2000).
3 Title 18 U. S. C. § 2511(1)(c) provides that any person who “intention-
ally discloses, or endeavors to disclose, to any other person the con-
tents 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 . . . .” The Pennsylvania Act contains a similar
provision.

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tion was intentional,4 but concluded that the text of the inter-
ception raised a genuine issue of material fact with respect to
intent. That issue of fact was also the basis for the District
Court’s denial of petitioners’ motion. Finally, the District
Court rejected respondents’ First Amendment defense be-
cause the statutes were content-neutral laws of general ap-
plicability that contained “no indicia of prior restraint or the
chilling of free speech.” Id., at 55a–56a.
Thereafter, the District Court granted a motion for an
interlocutory appeal, pursuant to 28 U. S. C. § 1292(b). It
certified as controlling questions of law: “(1) whether the
imposition of liability on the media Defendants under the
[wiretapping statutes] solely for broadcasting the news-
worthy tape on the Defendant [Vopper’s] 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] stat-
utes on Defendant Jack Yocum solely for providing the anon-
ymously intercepted and recorded tape to the media Defend-
ants violates the First Amendment.” App. to Pet. for Cert.
in No. 99–1728, p. 76a. The Court of Appeals accepted the
appeal, and the United States, also a petitioner, intervened
pursuant to 28 U. S. C. § 2403 in order to defend the constitu-
tionality of the federal statute.
All three members of the panel agreed with petitioners
and the Government that the federal and Pennsylvania wire-
tapping statutes are “content-neutral” and therefore subject
to “intermediate scrutiny.” 200 F. 3d 109, 121 (CA3 1999).
Applying that standard, the majority concluded that the
4 Title 18 U. S. C. § 2511(1)(a) provides: “(1) Except as otherwise specifi-
cally provided in this chapter [§§ 2510–2520 (1994 ed. and Supp. V)] any
person who—
“(a) intentionally intercepts, endeavors to intercept, or procures any
other person to intercept or endeavor to intercept, any wire, oral, or elec-
tronic communication; . . . shall be punished . . . .”

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statutes were invalid because they deterred significantly
more speech than necessary to protect the privacy interests
at stake. The court remanded the case with instructions
to enter summary judgment for respondents. In dissent,
Senior Judge Pollak expressed the view that the prohibi-
tion against disclosures was necessary in order to remove
the incentive for illegal interceptions and to preclude com-
pounding the harm caused by such interceptions through
wider dissemination. In so doing, he agreed with the major-
ity opinion in a similar case decided by the Court of Appeals
for the District of Columbia, Boehner v. McDermott, 191 F.
3d 463 (1999). See also Peavy v. WFAA–TV, Inc., 221 F. 3d
158 (CA5 2000).5 We granted certiorari to resolve the con-
flict. 530 U. S. 1260 (2000).
III
As we pointed out in Berger v. New York, 388 U. S. 41,
45–49 (1967), sophisticated (and not so sophisticated) meth-
ods of eavesdropping on oral conversations and intercepting
telephone calls have been practiced for decades, primarily by
law enforcement authorities.6 In Berger, we held that New
5 In the Boehner case, as in this suit, a conversation over a car cell
phone was intercepted, but in that case the defendant knew both
who was responsible for intercepting the conversation and how they had
done it. 191 F. 3d, at 465. In the opinion of the majority, the defendant
acted unlawfully in accepting the tape in order to provide it to the media.
Id., at 476. Apparently because the couple responsible for the intercep-
tion did not eavesdrop “for purposes of direct or indirect commercial ad-
vantage or private financial gain,” they were fined only $500. See De-
partment of Justice Press Release, Apr. 23, 1997. In another similar case
involving a claim for damages under § 2511(1)(c), Peavy v. WFAA–TV, Inc.,
221 F. 3d 158 (CA5 2000), the media defendant in fact participated in the
interceptions at issue.
6 In particular, calls placed on cellular and cordless telephones can be
intercepted more easily than those placed on traditional phones. See
Shubert v. Metrophone, Inc., 898 F. 2d 401, 404–405 (CA3 1990). Although
calls placed on cell and cordless phones can be easily intercepted, it is not
clear how often intentional interceptions take place. From 1992 through

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York’s broadly written statute authorizing the police to con-
duct wiretaps violated the Fourth Amendment. Largely in
response to that decision, and to our holding in Katz v.
United States, 389 U. S. 347 (1967), that the attachment of a
listening and recording device to the outside of a telephone
booth constituted a search, “Congress undertook to draft
comprehensive legislation both authorizing the use of evi-
dence obtained by electronic surveillance on specified condi-
tions, and prohibiting its use otherwise. S. Rep. No. 1097,
90th Cong., 2d Sess., 66 (1968).” Gelbard v. United States,
408 U. S. 41, 78 (1972) (Rehnquist, J., dissenting). The ulti-
mate result of those efforts was Title III of the Omnibus
Crime Control and Safe Streets Act of 1968, 82 Stat. 211,
entitled Wiretapping and Electronic Surveillance.
One of the stated purposes of that title was “to protect
effectively the privacy of wire and oral communications.”
Ibid. In addition to authorizing and regulating electronic
surveillance for law enforcement purposes, Title III also
regulated private conduct. One part of those regulations,
§ 2511(1), defined five offenses punishable by a fine of not
more than $10,000, by imprisonment for not more than five
years, or by both. Subsection (a) applied to any person who
“willfully intercepts . . . any wire or oral communication.”
Subsection (b) applied to the intentional use of devices de-
signed to intercept oral conversations; subsection (d) applied
to the use of the contents of illegally intercepted wire or
1997, less than 100 cases were prosecuted charging violations of 18 U. S. C.
§ 2511. See Statement of James K. Kallstrom, Assistant Director in
Charge of the New York Division of the FBI on February 5, 1997 before
the Subcommittee on Telecommunications, Trade, and Consumer Protec-
tion, Committee on Commerce, U. S. House of Representatives Regarding
Cellular Privacy. However, information concerning techniques and de-
vices for intercepting cell and cordless phone calls can be found in a num-
ber of publications, trade magazines, and sites on the Internet, see id., at
6, and at one set of congressional hearings in 1997, a scanner, purchased
off the shelf and minimally modified, was used to intercept phone calls
of Members of Congress.

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oral communications; and subsection (e) prohibited the un-
authorized disclosure of the contents of interceptions that
were authorized for law enforcement purposes. Subsec-
tion (c), the original version of the provision most directly
at issue in this suit, applied to any person who “willfully
discloses, or endeavors to disclose, to any other person the
contents of any wire or oral communication, knowing or
having reason to know that the information was obtained
through the interception of a wire or oral communication
in violation of this subsection.” The oral communications
protected by the Act were only those “uttered by a person
exhibiting an expectation that such communication is not
subject to interception under circumstances justifying such
expectation.” § 2510(2).
As enacted in 1968, Title III did not apply to the moni-
toring of radio transmissions. In the Electronic Communi-
cations Privacy Act of 1986, 100 Stat. 1848, however, Con-
gress enlarged the coverage of Title III to prohibit the
interception of “electronic” as well as oral and wire commu-
nications. By reason of that amendment, as well as a 1994
amendment which applied to cordless telephone communi-
cations, 108 Stat. 4279, Title III now applies to the intercep-
tion of conversations over both cellular and cordless phones.7
Although a lesser criminal penalty may apply to the inter-
ception of such transmissions, the same civil remedies are
available whether the communication was “oral,” “wire,” or
“electronic,” as defined by 18 U. S. C. § 2510 (1994 ed. and
Supp. V).
IV
The constitutional question before us concerns the validity
of the statutes as applied to the specific facts of these cases.
Because of the procedural posture of these cases, it is appro-
priate to make certain important assumptions about those
7 See, e. g., Nix v. O’Malley, 160 F. 3d 343, 346 (CA6 1998); McKamey v.
Roach, 55 F. 3d 1236, 1240 (CA6 1995).

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facts. We accept petitioners’ submission that the intercep-
tion was intentional, and therefore unlawful, and that, at a
minimum, respondents “had reason to know” that it was
unlawful. Accordingly, the disclosure of the contents of the
intercepted conversation by Yocum to school board members
and to representatives of the media, as well as the sub-
sequent disclosures by the media defendants to the public,
violated the federal and state statutes. Under the pro-
visions of the federal statute, as well as its Pennsylvania
analogue, petitioners are thus entitled to recover damages
from each of the respondents. The only question is whether
the application of these statutes in such circumstances vio-
lates the First Amendment.8
In answering that question, we accept respondents’ sub-
mission on three factual matters that serve to distinguish
most of the cases that have arisen under § 2511. First,
respondents played no part in the illegal interception.
Rather, they found out about the interception only after it
occurred, and in fact never learned the identity of the person
or persons who made the interception. Second, their access
to the information on the tapes was obtained lawfully, even
though the information itself was intercepted unlawfully by
someone else. Cf. Florida Star v. B. J. F., 491 U. S. 524, 536
(1989) (“Even assuming the Constitution permitted a State
to proscribe receipt of information, Florida has not taken
this step”). Third, the subject matter of the conversation
was a matter of public concern. If the statements about the
labor negotiations had been made in a public arena—during
a bargaining session, for example—they would have been
newsworthy. This would also be true if a third party had
inadvertently overheard Bartnicki making the same state-
ments to Kane when the two thought they were alone.
8 In answering this question, we draw no distinction between the media
respondents and Yocum. See, e. g., New York Times Co. v. Sullivan, 376
U. S. 254, 265–266 (1964); First Nat. Bank of Boston v. Bellotti, 435 U. S.
765, 777 (1978).

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V
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 regu-
lation 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 suit, the basic purpose of the statute at issue is to
“protec[t] the privacy of wire[, electronic,] and oral commu-
nications.” 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 communica-
tions 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 disclo-
sures is fairly characterized as a regulation of pure speech.
Unlike the prohibition against the “use” of the contents of
9 “But while a content-based purpose may be sufficient in certain cir-
cumstances to show that a regulation is content based, it is not necessary
to such a showing in all cases. . . . Nor will the mere assertion of a content-
neutral purpose be enough to save a law which, on its face, discriminates
based on content.” Turner Broadcasting System, Inc. v. FCC, 512 U. S.
622, 642–643 (1994).

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an illegal interception in § 2511(1)(d),10 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.11 As the majority
below put it, “[i]f the acts of ‘disclosing’ and ‘publishing’ in-
formation 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.
VI
As a general matter, “state action to punish the publication
of truthful information seldom can satisfy constitutional
standards.” Smith v. Daily Mail Publishing Co., 443 U. S.
97, 102 (1979). More specifically, this Court has repeatedly
10 The Solicitor General has cataloged some of the cases that fall under
subsection (d): “[I]t is unlawful for a company to use an illegally inter-
cepted communication about a business rival in order to create a compet-
ing product; it is unlawful for an investor to use illegally intercepted com-
munications in trading in securities; it is unlawful for a union to use an
illegally intercepted communication about management (or vice versa) to
prepare strategy for contract negotiations; it is unlawful for a supervisor
to use information in an illegally recorded conversation to discipline a sub-
ordinate; and it is unlawful for a blackmailer to use an illegally intercepted
communication for purposes of extortion. See, e. g., 1968 Senate Report
67 (corporate and labor-management uses); Fultz v. Gilliam, 942 F. 2d 396,
400 n. 4 (6th Cir. 1991) (extortion); Dorris v. Absher, 959 F. Supp. 813,
815–817 (M. D. Tenn. 1997) (workplace discipline), aff ’d in part, rev’d in
part, 179 F. 3d 420 (6th Cir. 1999). The statute has also been held to bar
the use of illegally intercepted communications for important and socially
valuable purposes. See In re Grand Jury, 111 F. 3d 1066, 1077–1079
(3d Cir. 1997).” Brief for United States 24.
11 Put another way, what gave rise to statutory liability in this suit 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 upon the nature of the contents”).

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528 BARTNICKI v. VOPPER
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held that “if a newspaper lawfully obtains truthful informa-
tion about a matter of public significance then state officials
may not constitutionally punish publication of the informa-
tion, absent a need . . . of the highest order.” Id., at 103; see
also Florida Star v. B. J. F., 491 U. S. 524 (1989); Landmark
Communications, Inc. v. Virginia, 435 U. S. 829 (1978).
Accordingly, in New York Times Co. v. United States, 403
U. S. 713 (1971) (per curiam), the Court upheld the right
of the press to publish information of great public concern
obtained from documents stolen by a third party. In so
doing, that decision resolved a conflict between the basic
rule against prior restraints on publication and the interest
in preserving the secrecy of information that, if disclosed,
might seriously impair the security of the Nation. In re-
solving that conflict, the attention of every Member of this
Court was focused on the character of the stolen docu-
ments’ contents and the consequences of public disclosure.
Although the undisputed fact that the newspaper intended
to publish information obtained from stolen documents was
noted in Justice Harlan’s dissent, id., at 754, neither the ma-
jority nor the dissenters placed any weight on that fact.
However, New York Times v. United States raised, but did
not resolve, the question “whether, in cases where informa-
tion has been acquired unlawfully by a newspaper or by a
source, government may ever punish not only the unlawful
acquisition, but the ensuing publication as well.” 12 Florida
Star, 491 U. S., at 535, n. 8. The question here, however, is
a narrower version of that still-open question. Simply put,
the issue here is this: “Where the punished publisher of in-
formation has obtained the information in question in a man-
ner lawful in itself but from a source who has obtained it
unlawfully, may the government punish the ensuing publi-
cation of that information based on the defect in a chain?”
Boehner, 191 F. 3d, at 484–485 (Sentelle, J., dissenting).
12 That question was subsequently reserved in Landmark Communica-
tions, Inc. v. Virginia, 435 U. S. 829, 837 (1978).

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Our refusal to construe the issue presented more broadly
is consistent with this Court’s repeated refusal to answer
categorically whether truthful publication may ever be pun-
ished consistent with the First Amendment. Rather,
“[o]ur cases have carefully eschewed reaching this ulti-
mate question, mindful that the future may bring sce-
narios which prudence counsels our not resolving antici-
patorily. . . . We continue to believe that the sensitivity
and significance of the interests presented in clashes be-
tween [the] First Amendment and privacy rights counsel
relying on limited principles that sweep no more broadly
than the appropriate context of the instant case.” Flor-
ida Star, 491 U. S., at 532–533.
See also Landmark Communications, 435 U. S., at 838. Ac-
cordingly, we consider whether, given the facts of these
cases, the interests served by § 2511(1)(c) can justify its re-
strictions on speech.
The Government identifies two interests served by the
statute—first, the interest in removing an incentive for par-
ties to intercept private conversations, and second, the in-
terest in minimizing the harm to persons whose conversa-
tions have been illegally intercepted. We assume that those
interests adequately justify the prohibition in § 2511(1)(d)
against the interceptor’s own use of information that he
or she acquired by violating § 2511(1)(a), but it by no means
follows that punishing disclosures of lawfully obtained infor-
mation of public interest by one not involved in the initial
illegality is an acceptable means of serving those ends.
The normal method of deterring unlawful conduct is to im-
pose an appropriate punishment on the person who engages
in it. If the sanctions that presently attach to a violation of
§ 2511(1)(a) do not provide sufficient deterrence, perhaps
those sanctions should be made more severe. But it would
be quite remarkable to hold that speech by a law-abiding
possessor of information can be suppressed in order to deter

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530 BARTNICKI v. VOPPER
Opinion of the Court
conduct by a non-law-abiding third party. Although there
are some rare occasions in which a law suppressing one par-
ty’s speech may be justified by an interest in deterring crimi-
nal conduct by another, see, e. g., New York v. Ferber, 458
U. S. 747 (1982),13 this is not such a case.
With only a handful of exceptions, the violations of
§ 2511(1)(a) that have been described in litigated cases have
been motivated by either financial gain or domestic dis-
putes.14 In virtually all of those cases, the identity of the
person or persons intercepting the communication has been
known.15 Moreover, petitioners cite no evidence that Con-
gress viewed the prohibition against disclosures as a re-
sponse to the difficulty of identifying persons making im-
proper use of scanners and other surveillance devices and
accordingly of deterring such conduct,16 and there is no
13 In cases relying on such a rationale, moreover, the speech at issue is
considered of minimal value. Osborne v. Ohio, 495 U. S. 103 (1990); New
York v. Ferber, 458 U. S., at 762 (“The value of permitting live perform-
ances and photographic reproductions of children engaged in lewd sexual
conduct is exceedingly modest, if not de minimis”).
The Government also points to two other areas of the law—namely, mail
theft and stolen property—in which a ban on the receipt or possession of
an item is used to deter some primary illegality. Brief for United States
14; see also post, at 550–551 (Rehnquist, C. J., dissenting). Neither of
those examples, though, involve prohibitions on speech. As such, they
are not relevant to a First Amendment analysis.
14 The media respondents have included a list of 143 cases under
§ 2511(1)(a) and 63 cases under §§ 2511(1)(c) and (d)—which must also in-
volve violations of subsection (a)—in an appendix to their brief. The
Reply Brief filed by the United States contains an appendix describing
each of the cases in the latter group.
15 In only 5 of the 206 cases listed in the appendixes, see n. 14, supra,
n. 17, infra, was the identity of the interceptor wholly unknown.
16 The legislative history of the 1968 Act indicates that Congress’ con-
cern focused on private surveillance “in domestic relations and industrial
espionage situations.” S. Rep. No. 1097, 90th Cong., 2d Sess., 225 (1968).
Similarly, in connection with the enactment of the 1986 amendment, one
Senator referred to the interest in protecting private communications

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531 Cite as: 532 U. S. 514 (2001)
Opinion of the Court
empirical evidence to support the assumption that the pro-
hibition against disclosures reduces the number of illegal
interceptions.17
Although this suit demonstrates that there may be an
occasional situation in which an anonymous scanner will risk
criminal prosecution by passing on information without any
expectation of financial reward or public praise, surely this
is the exceptional case. Moreover, there is no basis for as-
suming that imposing sanctions upon respondents will deter
the unidentified scanner from continuing to engage in sur-
reptitious interceptions. Unusual cases fall far short of a
from “a corporate spy, a police officer without probable cause, or just a
plain snoop.” 131 Cong. Rec. 24366 (1985) (statement of Sen. Leahy).
17 The dissent argues that we have not given proper respect to “con-
gressional findings” or to “ ‘Congress’ factual predictions.’ ” Post, at 550.
But the relevant factual foundation is not to be found in the legislative
record. Moreover, the dissent does not argue that Congress did provide
empirical evidence in support of its assumptions, nor, for that matter, does
it take real issue with the fact that in the vast majority of cases involving
illegal interceptions, the identity of the person or persons responsible for
the interceptions is known. Instead, the dissent advances a minor dis-
agreement with our numbers, stating that nine cases “involved an un-
known or unproved eavesdropper.” Post, at 552, n. 9 (emphasis added).
The dissent includes in that number cases in which the identity of the
interceptor, though suspected, was not “proved” because the identity of
the interceptor was not at issue or the evidence was insufficient. In any
event, whether there are 5 cases or 9 involving anonymous interceptors
out of the 206 cases under § 2511, in most of the cases involving illegal
interceptions, the identity of the interceptor is no mystery. If, as the
proponents of the dry-up-the-market theory would have it, it is difficult to
identify the persons responsible for illegal interceptions (and thus neces-
sary to prohibit disclosure by third parties with no connection to, or re-
sponsibility for, the initial illegality), one would expect to see far more
cases in which the identity of the interceptor was unknown (and, con-
comitantly, far fewer in which the interceptor remained anonymous).
Thus, not only is there a dearth of evidence in the legislative record to
support the dry-up-the-market theory, but what postenactment evidence
is available cuts against it.

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532 BARTNICKI v. VOPPER
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showing that there is a “need . . . of the highest order” for a
rule supplementing the traditional means of deterring anti-
social conduct. The justification for any such novel burden
on expression must be “far stronger than mere speculation
about serious harms.” United States v. Treasury Employ-
ees, 513 U. S. 454, 475 (1995).18 Accordingly, the Govern-
ment’s first suggested justification for applying § 2511(1)(c)
to an otherwise innocent disclosure of public information is
plainly insufficient.19
The Government’s second argument, however, is consid-
erably stronger. Privacy of communication is an important
interest, Harper & Row, Publishers, Inc. v. Nation Enter-
prises, 471 U. S. 539, 559 (1985),20 and Title III’s restrictions
are intended to protect that interest, thereby “encouraging
the uninhibited exchange of ideas and information among
private parties . . . .” Brief for United States 27. More-
18 Indeed, even the burden of justifying restrictions on commercial
speech requires more than “ ‘mere speculation or conjecture.’ ” Greater
New Orleans Broadcasting Assn., Inc. v. United States, 527 U. S. 173,
188 (1999).
19 Our holding, of course, does not apply to punishing parties for ob-
taining the relevant information unlawfully. “It would be frivolous to
assert—and no one does in these cases—that the First Amendment, in the
interest of securing news or otherwise, confers a license on either the
reporter or his news sources to violate valid criminal laws. Although
stealing documents or private wiretapping could provide newsworthy
information, neither reporter nor source is immune from conviction for
such conduct, whatever the impact on the flow of news.” Branzburg v.
Hayes, 408 U. S. 665, 691 (1972).
20 “ ‘The essential thrust of the First Amendment is to prohibit improper
restraints on the voluntary public expression of ideas; it shields the man
who wants to speak or publish when others wish him to be quiet. There
is necessarily, and within suitably defined areas, a concomitant freedom
not to speak publicly, one which serves the same ultimate end as freedom
of speech in its affirmative aspect.’ ” Harper & Row, Publishers, Inc. v.
Nation Enterprises, 471 U. S., at 559 (quoting Estate of Hemingway v.
Random House, Inc., 23 N. Y. 2d 341, 348, 244 N. E. 2d 250, 255 (1968)).

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Opinion of the Court
over, the fear of public disclosure of private conversations
might well have a chilling effect on private speech.
“In a democratic society privacy of communication is
essential if citizens are to think and act creatively and
constructively. Fear or suspicion that one’s speech is
being monitored by a stranger, even without the reality
of such activity, can have a seriously inhibiting effect
upon the willingness to voice critical and constructive
ideas.” President’s Commission on Law Enforcement
and Administration of Justice, The Challenge of Crime
in a Free Society 202 (1967).
Accordingly, it seems to us that there are important interests
to be considered on both sides of the constitutional calculus.
In considering that balance, we acknowledge that some in-
trusions on privacy are more offensive than others, and that
the disclosure of the contents of a private conversation can
be an even greater intrusion on privacy than the interception
itself. As a result, there is a valid independent justification
for prohibiting such disclosures by persons who lawfully
obtained access to the contents of an illegally intercepted
message, even if that prohibition does not play a significant
role in preventing such interceptions from occurring in the
first place.
We need not decide whether that interest is strong enough
to justify the application of § 2511(c) to disclosures of trade
secrets or domestic gossip or other information of purely pri-
vate concern. Cf. Time, Inc. v. Hill, 385 U. S. 374, 387–388
(1967) (reserving the question whether truthful publication
of private matters unrelated to public affairs can be consti-
tutionally proscribed). In other words, the outcome of these
cases does not turn on whether § 2511(1)(c) may be enforced
with respect to most violations of the statute without offend-
ing the First Amendment. The enforcement of that pro-
vision in these cases, however, implicates the core purposes

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534 BARTNICKI v. VOPPER
Opinion of the Court
of the First Amendment because it imposes sanctions on the
publication of truthful information of public concern.
In these cases, privacy concerns give way when balanced
against the interest in publishing matters of public impor-
tance. As Warren and Brandeis stated in their classic law
review article: “The right of privacy does not prohibit any
publication of matter which is of public or general interest.”
The Right to Privacy, 4 Harv. L. Rev. 193, 214 (1890). One
of the costs associated with participation in public affairs is
an attendant loss of privacy.
“Exposure of the self to others in varying degrees is a
concomitant of life in a civilized community. The risk
of this exposure is an essential incident of life in a so-
ciety which places a primary value on freedom of speech
and of press. ‘Freedom of discussion, if it would fulfill
its historic function in this nation, must embrace all
issues about which information is needed or appropriate
to enable the members of society to cope with the exi-
gencies of their period.’ ” Time, Inc. v. Hill, 385 U. S.,
at 388 (quoting Thornhill v. Alabama, 310 U. S. 88, 102
(1940)).21
Our opinion in New York Times Co. v. Sullivan, 376 U. S.
254 (1964), reviewed many of the decisions that settled the
“general proposition that freedom of expression upon public
questions is secured by the First Amendment.” Id., at 269;
see Roth v. United States, 354 U. S. 476, 484 (1957); Bridges
v. California, 314 U. S. 252, 270 (1941); Stromberg v. Cali-
fornia, 283 U. S. 359, 369 (1931). Those cases all relied on
our “profound national commitment to the principle that
debate on public issues should be uninhibited, robust, and
wide-open,” New York Times, 376 U. S., at 270; see Termi-
niello v. Chicago, 337 U. S. 1, 4 (1949); De Jonge v. Oregon,
21 Moreover, “our decisions establish that absent exceptional circum-
stances, reputational interests alone cannot justify the proscription of
truthful speech.” Butterworth v. Smith, 494 U. S. 624, 634 (1990).

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535 Cite as: 532 U. S. 514 (2001)
Breyer, J., concurring
299 U. S. 353, 365 (1937); Whitney v. California, 274 U. S.
357, 375–376 (1927) (Brandeis, J., concurring); see also Roth,
354 U. S., at 484; Stromberg, 283 U. S., at 369; Bridges, 314
U. S., at 270. It was the overriding importance of that com-
mitment that supported our holding that neither factual
error nor defamatory content, nor a combination of the two,
sufficed to remove the First Amendment shield from criti-
cism of official conduct. Id., at 273; see also NAACP v. But-
ton, 371 U. S. 415, 445 (1963); Wood v. Georgia, 370 U. S. 375
(1962); Craig v. Harney, 331 U. S. 367 (1947); Pennekamp v.
Florida, 328 U. S. 331, 342, 343, n. 5, 345 (1946); Bridges, 314
U. S., at 270.
We think it clear that parallel reasoning requires the con-
clusion that a stranger’s illegal conduct does not suffice to
remove the First Amendment shield from speech about a
matter of public concern.22 The months of negotiations over
the proper level of compensation for teachers at the Wyo-
ming Valley West High School were unquestionably a matter
of public concern, and respondents were clearly engaged in
debate about that concern. That debate may be more mun-
dane than the Communist rhetoric that inspired Justice
Brandeis’ classic opinion in Whitney v. California, 274 U. S.,
at 372, but it is no less worthy of constitutional protection.
The judgment is affirmed.
It is so ordered.
Justice Breyer, with whom Justice O’Connor joins,
concurring.
I join the Court’s opinion. I agree with its narrow hold-
ing limited to the special circumstances present here: (1)
the radio broadcasters acted lawfully (up to the time of
final public disclosure); and (2) the information publicized in-
22 See, e. g., Florida Star v. B. J. F., 491 U. S. 524, 535 (1989) (acknowledg-
ing “the ‘timidity and self-censorship’ which may result from allowing the
media to be punished for publishing truthful information”).

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volved a matter of unusual public concern, namely, a threat
of potential physical harm to others. I write separately
to explain why, in my view, the Court’s holding does not
imply a significantly broader constitutional immunity for
the media.
As the Court recognizes, the question before us—a ques-
tion of immunity from statutorily imposed civil liability—
implicates competing constitutional concerns. Ante, at 532–
533. The statutes directly interfere with free expression in
that they prevent the media from publishing information.
At the same time, they help to protect personal privacy—an
interest here that includes not only the “right to be let
alone,” Olmstead v. United States, 277 U. S. 438, 478 (1928)
(Brandeis, J., dissenting), but also “the interest . . . in foster-
ing private speech,” ante, at 518. Given these competing
interests “on both sides of the equation, the key question
becomes one of proper fit.” Turner Broadcasting System,
Inc. v. FCC, 520 U. S. 180, 227 (1997) (Breyer, J., concurring
in part). See also Nixon v. Shrink Missouri Government
PAC, 528 U. S. 377, 402 (2000) (Breyer, J., concurring).
I would ask whether the statutes strike a reasonable bal-
ance between their speech-restricting and speech-enhancing
consequences. Or do they instead impose restrictions on
speech that are disproportionate when measured against
their corresponding privacy and speech-related benefits,
taking into account the kind, the importance, and the extent
of these benefits, as well as the need for the restrictions in
order to secure those benefits? What this Court has called
“strict scrutiny”—with its strong presumption against con-
stitutionality—is normally out of place where, as here, im-
portant competing constitutional interests are implicated.
See ante, at 518 (recognizing “conflict between interests of
the highest order”); ante, at 533 (“important interests to be
considered on both sides of the constitutional calculus”); ante,
at 534 (“balanc[ing]” the interest in privacy “against the in-

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537 Cite as: 532 U. S. 514 (2001)
Breyer, J., concurring
terest in publishing matters of public importance”); ante, at
534 (privacy interest outweighed in these cases).
The statutory restrictions before us directly enhance pri-
vate speech. See Harper & Row, Publishers, Inc. v. Nation
Enterprises, 471 U. S. 539, 559 (1985) (describing “ ‘freedom
not to speak publicly’ ” (quoting Estate of Hemingway v.
Random House, Inc., 23 N. Y. 2d 341, 348, 244 N. E. 2d 250,
255 (1968))). The statutes ensure the privacy of telephone
conversations much as a trespass statute ensures privacy
within the home. That assurance of privacy helps to over-
come our natural reluctance to discuss private matters when
we fear that our private conversations may become public.
And the statutory restrictions consequently encourage con-
versations that otherwise might not take place.
At the same time, these statutes restrict public speech
directly, deliberately, and of necessity. They include media
publication within their scope not simply as a means, say,
to deter interception, but also as an end. Media dissemi-
nation of an intimate conversation to an entire community
will often cause the speakers serious harm over and above
the harm caused by an initial disclosure to the person who
intercepted the phone call. See Gelbard v. United States,
408 U. S. 41, 51–52 (1972). And the threat of that wide-
spread dissemination can create a far more powerful dis-
incentive to speak privately than the comparatively minor
threat of disclosure to an interceptor and perhaps to a
handful of others. Insofar as these statutes protect private
communications against that widespread dissemination, they
resemble laws that would award damages caused through
publication of information obtained by theft from a private
bedroom. See generally Warren & Brandeis, The Right to
Privacy, 4 Harv. L. Rev. 193 (1890) (hereinafter Warren &
Brandeis). See also Restatement (Second) of Torts § 652D
(1977).
As a general matter, despite the statutes’ direct restric-
tions on speech, the Federal Constitution must tolerate

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538 BARTNICKI v. VOPPER
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laws of this kind because of the importance of these privacy
and speech-related objectives. See Warren & Brandeis 196
(arguing for state-law protection of the right to privacy).
Cf. Katz v. United States, 389 U. S. 347, 350–351 (1967)
(“[T]he protection of a person’s general right to privacy—his
right to be let alone by other people—is, like the protection
of his property and of his very life, left largely to the law
of the individual States”); ante, at 518 (protecting privacy
and promoting speech are “interests of the highest order”).
Rather than broadly forbid this kind of legislative enact-
ment, the Constitution demands legislative efforts to tailor
the laws in order reasonably to reconcile media freedom with
personal, speech-related privacy.
Nonetheless, looked at more specifically, the statutes, as
applied in these circumstances, do not reasonably reconcile
the competing constitutional objectives. Rather, they dis-
proportionately interfere with media freedom. For one
thing, the broadcasters here engaged in no unlawful activity
other than the ultimate publication of the information an-
other had previously obtained. They “neither encouraged
nor participated directly or indirectly in the interception.”
App. to Pet. for Cert. in No. 99–1687, p. 33a. See also ante,
at 525. No one claims that they ordered, counseled, encour-
aged, or otherwise aided or abetted the interception, the
later delivery of the tape by the interceptor to an intermedi-
ary, or the tape’s still later delivery by the intermediary to
the media. Cf. 18 U. S. C. § 2 (criminalizing aiding and abet-
ting any federal offense); 2 W. LaFave & A. Scott, Substan-
tive Criminal Law §§ 6.6(b)–(c), pp. 128–129 (1986) (describ-
ing criminal liability for aiding and abetting). And, as the
Court points out, the statutes do not forbid the receipt of the
tape itself. Ante, at 525. The Court adds that its holding
“does not apply to punishing parties for obtaining the rele-
vant information unlawfully.” Ante, at 532, n. 19 (empha-
sis added).

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For another thing, the speakers had little or no legitimate
interest in maintaining the privacy of the particular con-
versation. That conversation involved a suggestion about
“blow[ing] off . . . front porches” and “do[ing] some work on
some of those guys,” App. 46, thereby raising a signifi-
cant concern for the safety of others. Where publication of
private information constitutes a wrongful act, the law rec-
ognizes a privilege allowing the reporting of threats to pub-
lic safety. See Restatement (Second) of Torts § 595, Com-
ment g (1977) (general privilege to report that “another
intends to kill or rob or commit some other serious crime
against a third person”); id., § 652G (privilege applies to in-
vasion of privacy tort). Cf. Restatement (Third) of Unfair
Competition § 40, Comment c (1995) (trade secret law per-
mits disclosures relevant to public health or safety, commis-
sion of crime or tort, or other matters of substantial public
concern); Lachman v. Sperry-Sun Well Surveying Co., 457
F. 2d 850, 853 (CA10 1972) (nondisclosure agreement not
binding in respect to criminal activity); Tarasoff v. Regents
of Univ. of Cal., 17 Cal. 3d 425, 436, 551 P. 2d 334, 343–344
(1976) (psychiatric privilege not binding in presence of dan-
ger to self or others). Even where the danger may have
passed by the time of publication, that fact cannot legitimize
the speaker’s earlier privacy expectation. Nor should edi-
tors, who must make a publication decision quickly, have to
determine present or continued danger before publishing
this kind of threat.
Further, the speakers themselves, the president of a teach-
er’s union and the union’s chief negotiator, were “limited
public figures,” for they voluntarily engaged in a public con-
troversy. They thereby subjected themselves to somewhat
greater public scrutiny and had a lesser interest in privacy
than an individual engaged in purely private affairs. See,
e. g., ante, at 535 (respondents were engaged in matter of
public concern); Wolston v. Reader’s Digest Assn., Inc., 443

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U. S. 157, 164 (1979); Hutchinson v. Proxmire, 443 U. S. 111,
134 (1979); Gertz v. Robert Welch, Inc., 418 U. S. 323, 351
(1974). See also Warren & Brandeis 215.
This is not to say that the Constitution requires any-
one, including public figures, to give up entirely the right
to private communication, i. e., communication free from tele-
phone taps or interceptions. But the subject matter of the
conversation at issue here is far removed from that in situa-
tions where the media publicizes truly private matters. See
Michaels v. Internet Entertainment Group, Inc., 5 F. Supp.
2d 823, 841–842 (CD Cal. 1998) (broadcast of videotape re-
cording of sexual relations between famous actress and rock
star not a matter of legitimate public concern); W. Keeton,
D. Dobbs, R. Keeton, & D. Owen, Prosser & Keeton on Law
of Torts § 117, p. 857 (5th ed. 1984) (stating that there is
little expectation of privacy in mundane facts about a per-
son’s life, but that “portrayal of . . . intimate private charac-
teristics or conduct” is “quite a different matter”); Warren
& Brandeis 214 (recognizing that in certain matters “the
community has no legitimate concern”). Cf. Time, Inc. v.
Firestone, 424 U. S. 448, 454–455 (1976) (despite interest of
public, divorce of wealthy person not a “public controversy”).
Cf. also ante, at 533 (“[S]ome intrusions on privacy are more
offensive than others”).
Thus, in finding a constitutional privilege to publish un-
lawfully intercepted conversations of the kind here at issue,
the Court does not create a “public interest” exception that
swallows up the statutes’ privacy-protecting general rule.
Rather, it finds constitutional protection for publication of
intercepted information of a special kind. Here, the speak-
ers’ legitimate privacy expectations are unusually low, and
the public interest in defeating those expectations is unusu-
ally high. Given these circumstances, along with the lawful
nature of respondents’ behavior, the statutes’ enforcement
would disproportionately harm media freedom.

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541 Cite as: 532 U. S. 514 (2001)
Rehnquist, C. J., dissenting
I emphasize the particular circumstances before us be-
cause, in my view, the Constitution permits legislatures to
respond flexibly to the challenges future technology may
pose to the individual’s interest in basic personal privacy.
Clandestine and pervasive invasions of privacy, unlike the
simple theft of documents from a bedroom, are genuine pos-
sibilities as a result of continuously advancing technologies.
Eavesdropping on ordinary cellular phone conversations in
the street (which many callers seem to tolerate) is a very
different matter from eavesdropping on encrypted cellular
phone conversations or those carried on in the bedroom.
But the technologies that allow the former may come to per-
mit the latter. And statutes that may seem less important
in the former context may turn out to have greater impor-
tance in the latter. Legislatures also may decide to revisit
statutes such as those before us, creating better tailored pro-
visions designed to encourage, for example, more effective
privacy-protecting technologies.
For these reasons, we should avoid adopting overly broad
or rigid constitutional rules, which would unnecessarily re-
strict legislative flexibility. I consequently agree with the
Court’s holding that the statutes as applied here violate the
Constitution, but I would not extend that holding beyond
these present circumstances.
Chief Justice Rehnquist, with whom Justice Scalia
and Justice Thomas join, dissenting.
Technology now permits millions of important and con-
fidential conversations to occur through a vast system of
electronic networks. These advances, however, raise sig-
nificant privacy concerns. We are placed in the uncomfort-
able position of not knowing who might have access to our
personal and business e-mails, our medical and financial rec-
ords, or our cordless and cellular telephone conversations.
In an attempt to prevent some of the most egregious viola-
tions of privacy, the United States, the District of Columbia,

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542 BARTNICKI v. VOPPER
Rehnquist, C. J., dissenting
and 40 States have enacted laws prohibiting the intentional
interception and knowing disclosure of electronic communi-
cations.1 The Court holds that all of these statutes violate
the First Amendment insofar as the illegally intercepted
conversation touches upon a matter of “public concern,” an
amorphous concept that the Court does not even attempt
to define. But the Court’s decision diminishes, rather than
enhances, the purposes of the First Amendment, thereby
chilling the speech of the millions of Americans who rely
upon electronic technology to communicate each day.
Over 30 years ago, with Title III of the Omnibus Crime
Control and Safe Streets Act of 1968, Congress recognized
that the
“tremendous scientific and technological developments
that have taken place in the last century have made
possible today the widespread use and abuse of elec-
1 See 18 U. S. C. § 2511(1) (1994 ed. and Supp. V); Ala. Code § 13A–11–30
et seq. (1994); Alaska Stat. Ann. § 42.20.300(d) (2000); Ark. Code Ann. § 5–
60–120 (1997); Cal. Penal Code Ann. § 631 (West 1999); Colo. Rev. Stat.
§ 18–9–303 (2000); Del. Code Ann., Tit. 11, § 1336(b)(1) (1995); D. C. Code
Ann. § 23–542 (1996); Fla. Stat. § 934.03(1) (Supp. 2001); Ga. Code Ann.
§ 16–11–66.1 (1996); Haw. Rev. Stat. § 803–42 (1993); Idaho Code § 18–6702
(1997); Ill. Comp. Stat., ch. 720, § 5/14–2(b) (1999 Supp.); Iowa Code
§ 808B.2 (1994); Kan. Stat. Ann. § 21–4002 (1995); Ky. Rev. Stat. Ann.
§ 526.060 (Michie 1999); La. Rev. Stat. Ann. § 15:1303 (West 1992); Me. Rev.
Stat. Ann., Tit. 15, § 710(3) (Supp. 2000); Md. Cts. & Jud. Proc. Code Ann.
§ 10–402 (Supp. 2000); Mass. Gen. Laws § 272:99(C)(3) (1997); Mich. Comp.
Laws Ann. § 750.539e (West 1991); Minn. Stat. § 626A.02 (2000); Mo. Rev.
Stat. § 542.402 (2000); Neb. Rev. Stat. § 86–702 (1999); Nev. Rev. Stat.
§ 200.630 (1995); N. H. Rev. Stat. Ann. § 570–A:2 (Supp. 2000); N. J. Stat.
Ann. § 2A:156A–3 (West Supp. 2000); N. M. Stat. Ann. § 30–12–1 (1994);
N. C. Gen. Stat. § 15A–287 (1999); N. D. Cent. Code § 12.1–15–02 (1997);
Ohio Rev. Code Ann. § 2933.52(A)(3) (1997); Okla. Stat., Tit. 13, § 176.3
(2000 Supp.); Ore. Rev. Stat. § 165.540 (1997); 18 Pa. Cons. Stat. § 5703
(2000); R. I. Gen. Laws § 11–35–21 (2000); Tenn. Code Ann. § 39–13–601
(1997); Tex. Penal Code Ann. § 16.02 (Supp. 2001); Utah Code Ann. § 77–
23a–4 (1982); Va. Code Ann. § 19.2–62 (1995); W. Va. Code § 62–1D–3
(2000); Wis. Stat. § 968.31(1) (1994); Wyo. Stat. Ann. § 7–3–602 (1995).

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543 Cite as: 532 U. S. 514 (2001)
Rehnquist, C. J., dissenting
tronic surveillance techniques. As a result of these de-
velopments, privacy of communication is seriously jeop-
ardized by these techniques of surveillance. . . . No
longer is it possible, in short, for each man to retreat
into his home and be left alone. Every spoken word
relating to each man’s personal, marital, religious, politi-
cal, or commercial concerns can be intercepted by an
unseen auditor and turned against the speaker to the
auditor’s advantage.” S. Rep. No. 1097, 90th Cong., 2d
Sess., 67 (1968) (hereinafter S. Rep. No. 1097).
This concern for privacy was inseparably bound up with
the desire that personal conversations be frank and un-
inhibited, not cramped by fears of clandestine surveillance
and purposeful disclosure:
“In a democratic society privacy of communication is
essential if citizens are to think and act creatively and
constructively. Fear or suspicion that one’s speech is
being monitored by a stranger, even without the reality
of such activity, can have a seriously inhibiting effect
upon the willingness to voice critical and constructive
ideas.” President’s Commission on Law Enforcement
and Administration of Justice, The Challenge of Crime
in a Free Society 202 (1967).
To effectuate these important privacy and speech interests,
Congress and the vast majority of States have proscribed
the intentional interception and knowing disclosure of the
contents of electronic communications.2 See, e. g., 18 U. S. C.
§ 2511(1)(c) (placing restrictions upon “any person who . . .
intentionally discloses, or endeavors to disclose, to any other
person the contents of any wire, oral, or electronic commu-
2 “Electronic communication” is defined as “any transfer of signs, sig-
nals, writing, images, sounds, data, or intelligence of any nature transmit-
ted in whole or in part by a wire, radio, electromagnetic, photoelectronic
or photooptical system.” 18 U. S. C. § 2510(12) (1994 ed., Supp. V).

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544 BARTNICKI v. VOPPER
Rehnquist, C. J., dissenting
nication, knowing or having reason to know that the informa-
tion was obtained through the interception of a wire, oral, or
electronic communication”).
The Court correctly observes that these are “content-
neutral law[s] of general applicability” which serve recog-
nized interests of the “highest order”: “the interest in indi-
vidual privacy and . . . in fostering private speech.” Ante,
at 526, 518. It nonetheless subjects these laws to the strict
scrutiny normally reserved for governmental attempts to
censor different viewpoints or ideas. See ante, at 532 (hold-
ing that petitioners have not established the requisite “ ‘need
. . . of the highest order’ ”) (quoting Smith v. Daily Mail
Publishing Co., 443 U. S. 97, 103 (1979)). There is scant sup-
port, either in precedent or in reason, for the Court’s tacit
application of strict scrutiny.
A content-neutral regulation will be sustained if
“ ‘it furthers an important or substantial governmental
interest; if the governmental interest is unrelated to
the suppression of free expression; and if the inci-
dental restriction on alleged First Amendment free-
doms is no greater than is essential to the furtherance
of that interest.’ ” Turner Broadcasting System, Inc.
v. FCC, 512 U. S. 622, 662 (1994) (quoting United States
v. O’Brien, 391 U. S. 367, 377 (1968)).
Here, Congress and the Pennsylvania Legislature have acted
“ ‘without reference to the content of the regulated speech.’ ”
Renton v. Playtime Theatres, Inc., 475 U. S. 41, 48 (1986).
There is no intimation that these laws seek “to suppress
unpopular ideas or information or manipulate the public
debate” or that they “distinguish favored speech from dis-
favored speech on the basis of the ideas or views expressed.”
Turner Broadcasting, supra, at 641, 643. The antidisclosure
provision is based solely upon the manner in which the
conversation was acquired, not the subject matter of the
conversation or the viewpoints of the speakers. The same

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545 Cite as: 532 U. S. 514 (2001)
Rehnquist, C. J., dissenting
information, if obtained lawfully, could be published with
impunity. Cf. Seattle Times Co. v. Rhinehart, 467 U. S. 20,
34 (1984) (upholding under intermediate scrutiny a protec-
tive order on information acquired during discovery in part
because “the party may disseminate the identical infor-
mation . . . as long as the information is gained through
means independent of the court’s processes”). As the con-
cerns motivating strict scrutiny are absent, these content-
neutral restrictions upon speech need pass only intermedi-
ate scrutiny.
The Court’s attempt to avoid these precedents by reliance
upon the Daily Mail string of newspaper cases is unper-
suasive. In these cases, we held that statutes prohibiting
the media from publishing certain truthful information—the
name of a rape victim, Florida Star v. B. J. F., 491 U. S. 524
(1989); Cox Broadcasting Corp. v. Cohn, 420 U. S. 469 (1975),
the confidential proceedings before a state judicial review
commission, Landmark Communications, Inc. v. Virginia,
435 U. S. 829 (1978), and the name of a juvenile defendant,
Daily Mail, supra; Oklahoma Publishing Co. v. District
Court, Oklahoma Cty., 430 U. S. 308 (1977) (per curiam)—
violated the First Amendment. In so doing, we stated that
“if a newspaper lawfully obtains truthful information about
a matter of public significance then state officials may not
constitutionally punish publication of the information, absent
a need to further a state interest of the highest order.”
Daily Mail, supra, at 103. Neither this Daily Mail princi-
ple nor any other aspect of these cases, however, justifies the
Court’s imposition of strict scrutiny here.
Each of the laws at issue in the Daily Mail cases regulated
the content or subject matter of speech. This fact alone was
enough to trigger strict scrutiny, see United States v. Play-
boy Entertainment Group, Inc., 529 U. S. 803, 813 (2000)
(“[A] content-based speech restriction . . . can stand only if
it satisfies strict scrutiny”), and suffices to distinguish these
antidisclosure provisions. But, as our synthesis of these

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546 BARTNICKI v. VOPPER
Rehnquist, C. J., dissenting
cases in Florida Star made clear, three other unique factors
also informed the scope of the Daily Mail principle.
First, the information published by the newspapers had
been lawfully obtained from the government itself. 3
“Where information is entrusted to the government, a less
drastic means than punishing truthful publication almost
always exists for guarding against the dissemination of pri-
vate facts.” Florida Star, supra, at 534. See, e. g., Land-
mark Communications, supra, at 841, and n. 12 (noting that
the State could have taken steps to protect the confidential-
ity of its proceedings, such as holding in contempt commis-
sion members who breached their duty of confidentiality).
Indeed, the State’s ability to control the information under-
mined the claim that the restriction was necessary, for “[b]y
placing the information in the public domain on official court
records, the State must be presumed to have concluded that
the public interest was thereby being served.” Cox Broad-
casting, supra, at 495. This factor has no relevance in the
present cases, where we deal with private conversations that
have been intentionally kept out of the public domain.
Second, the information in each case was already “publicly
available,” and punishing further dissemination would not
have advanced the purported government interests of con-
fidentiality. Florida Star, supra, at 535. Such is not the
case here. These statutes only prohibit “disclos[ure],” 18
U. S. C. § 2511(1)(c); 18 Pa. Cons. Stat. § 5703(2) (2000), and
one cannot “disclose” what is already in the public domain.
See Black’s Law Dictionary 477 (7th ed. 1999) (defining “dis-
closure” as “[t]he act or process of making known some-
thing that was previously unknown; a revelation of facts”);
3 The one exception was Daily Mail, where reporters obtained the juve-
nile defendant’s name from witnesses to the crime. See 443 U. S., at 99.
However, the statute at issue there imposed a blanket prohibition on the
publication of the information. See id., at 98–99. In contrast, these anti-
disclosure provisions do not prohibit publication so long as the information
comes from a legal source.

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547 Cite as: 532 U. S. 514 (2001)
Rehnquist, C. J., dissenting
S. Rep. No. 1097, at 93 (“The disclosure of the contents of an
intercepted communication that had already become ‘public
information’ or ‘common knowledge’ would not be prohib-
ited”). These laws thus do not fall under the axiom that
“the interests in privacy fade when the information involved
already appears on the public record.” Cox Broadcasting,
supra, at 494–495.
Third, these cases were concerned with “the ‘timidity and
self-censorship’ which may result from allowing the media
to be punished for publishing certain truthful information.”
Florida Star, 491 U. S., at 535. But fear of “timidity and
self-censorship” is a basis for upholding, not striking down,
these antidisclosure provisions: They allow private conversa-
tions to transpire without inhibition. And unlike the statute
at issue in Florida Star, which had no scienter requirement,
see id., at 539, these statutes only address those who know-
ingly disclose an illegally intercepted conversation.4 They
do not impose a duty to inquire into the source of the infor-
mation and one could negligently disclose the contents of an
illegally intercepted communication without liability.
In sum, it is obvious that the Daily Mail cases upon which
the Court relies do not address the question presented here.
Our decisions themselves made this clear: “The Daily Mail
principle does not settle the issue whether, in cases where
information has been acquired unlawfully by a newspaper
or by a source, government may ever punish not only the
unlawful acquisition, but the ensuing publication as well.”
Florida Star, supra, at 535, n. 8; see also Daily Mail, 443
U. S., at 105 (“Our holding in this case is narrow. There is
no issue before us of unlawful press [conduct]”); Landmark
4 In 1986, to ensure that only the most culpable could face liability for
disclosure, Congress increased the scienter requirement from “willful”
to “intentional.” 18 U. S. C. § 2511(1)(c); see also S. Rep. No. 99–541, p. 6
(1986) (“In order to underscore that the inadvertent reception of a pro-
tected communication is not a crime, the subcommittee changed the state
of mind requirement under [Title III] from ‘willful’ to ‘intentional’ ”).

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548 BARTNICKI v. VOPPER
Rehnquist, C. J., dissenting
Communications, 435 U. S., at 837 (“We are not here con-
cerned with the possible applicability of the statute to one
who secures the information by illegal means and there-
after divulges it”).5
Undaunted, the Court places an inordinate amount of
weight upon the fact that the receipt of an illegally inter-
cepted communication has not been criminalized. See ante,
at 528–532. But this hardly renders those who knowingly
receive and disclose such communications “law-abiding,”
ante, at 529, and it certainly does not bring them under the
Daily Mail principle. The transmission of the intercepted
communication from the eavesdropper to the third party
is itself illegal; and where, as here, the third party then
knowingly discloses that communication, another illegal act
has been committed. The third party in this situation can-
not be likened to the reporters in the Daily Mail cases, who
lawfully obtained their information through consensual in-
terviews or public documents.
These laws are content neutral; they only regulate infor-
mation that was illegally obtained; they do not restrict re-
publication of what is already in the public domain; they
impose no special burdens upon the media; they have a sci-
enter requirement to provide fair warning; and they pro-
mote the privacy and free speech of those using cellular
telephones. It is hard to imagine a more narrowly tailored
prohibition of the disclosure of illegally intercepted com-
munications, and it distorts our precedents to review these
statutes under the often fatal standard of strict scrutiny.
These laws therefore should be upheld if they further a sub-
5 Tellingly, we noted in Florida Star that “[t]o the extent sensitive in-
formation rests in private hands, the government may under some cir-
cumstances forbid its nonconsensual acquisition, thereby bringing out-
side of the Daily Mail principle the publication of any information so
acquired.” 491 U. S., at 534; see also id., at 535 (“[I]t is highly anomalous
to sanction persons other than the source of [the] release”).

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549 Cite as: 532 U. S. 514 (2001)
Rehnquist, C. J., dissenting
stantial governmental interest unrelated to the suppression
of free speech, and they do.
Congress and the overwhelming majority of States rea-
sonably have concluded that sanctioning the knowing dis-
closure of illegally intercepted communications will deter
the initial interception itself, a crime which is extremely
difficult to detect. It is estimated that over 20 million scan-
ners capable of intercepting cellular transmissions currently
are in operation, see Thompson, Cell Phone Snooping: Why
Electronic Eavesdropping Goes Unpunished, 35 Am. Crim.
L. Rev. 137, 149 (1997), notwithstanding the fact that Con-
gress prohibited the marketing of such devices eight years
ago, see 47 U. S. C. § 302a(d). 6 As Congress recognized,
“[a]ll too often the invasion of privacy itself will go unknown.
Only by striking at all aspects of the problem can privacy be
adequately protected.” S. Rep. No. 1097, at 69. See also
Hearings on H. R. 3378 before the Subcommittee on Courts,
Civil Liberties, and the Administration of Justice of the
House Committee on the Judiciary, 99th Cong., 1st Sess. and
2d Sess., 290 (1986) (“Congress should be under no illu-
sion . . . that the Department [of Justice], because of the
difficulty of such investigations, would be able to bring a
substantial number of successful prosecutions”).
Nonetheless, the Court faults Congress for providing
“no empirical evidence to support the assumption that the
prohibition against disclosures reduces the number of ille-
gal interceptions,” ante, at 530–531, and insists that “there
is no basis for assuming that imposing sanctions upon re-
spondents will deter the unidentified scanner from contin-
6 The problem is pervasive because legal “radio scanners [may be] modi-
fied to intercept cellular calls.” S. Rep. No. 99–541, at 9. For example,
the scanner at issue in Boehner v. McDermott, 191 F. 3d 463 (CADC 1999),
had been recently purchased at Radio Shack. See Thompson, 35 Am.
Crim. L. Rev., at 152, and n. 138 (citing Stratton, Scanner Wasn’t Supposed
to Pick up Call, But it Did, Orlando Sentinel, Jan. 18, 1997, p. A15).

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550 BARTNICKI v. VOPPER
Rehnquist, C. J., dissenting
uing to engage in surreptitious interceptions,” ante, at 531.
It is the Court’s reasoning, not the judgment of Congress
and numerous States regarding the necessity of these laws,
which disappoints.
The “quantum of empirical evidence needed to satisfy
heightened judicial scrutiny of legislative judgments will
vary up or down with the novelty and plausibility of the
justification raised.” Nixon v. Shrink Missouri Govern-
ment PAC, 528 U. S. 377, 391 (2000). “[C]ourts must accord
substantial deference to the predictive judgments of Con-
gress.” Turner Broadcasting, 512 U. S., at 665 (citing Co-
lumbia Broadcasting System, Inc. v. Democratic National
Committee, 412 U. S. 94, 103 (1973)). This deference recog-
nizes that, as an institution, Congress is far better equipped
than the judiciary to evaluate the vast amounts of data bear-
ing upon complex issues and that “[s]ound policymaking
often requires legislators to forecast future events and to
anticipate the likely impact of these events based on de-
ductions and inferences for which complete empirical sup-
port may be unavailable.” Turner Broadcasting, 512 U. S.,
at 665. Although we must nonetheless independently eval-
uate such congressional findings in performing our con-
stitutional review, this “is not a license to reweigh the evi-
dence de novo, or to replace Congress’ factual predictions
with our own.” Id., at 666.
The “dry-up-the-market” theory, which posits that it is
possible to deter an illegal act that is difficult to police by
preventing the wrongdoer from enjoying the fruits of the
crime, is neither novel nor implausible. It is a time-tested
theory that undergirds numerous laws, such as the pro-
hibition of the knowing possession of stolen goods. See 2
W. LaFave & A. Scott, Substantive Criminal Law § 8.10(a),
p. 422 (1986) (“Without such receivers, theft ceases to be
profitable. It is obvious that the receiver must be a prin-
cipal target of any society anxious to stamp out theft in
its various forms”). We ourselves adopted the exclusionary

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551 Cite as: 532 U. S. 514 (2001)
Rehnquist, C. J., dissenting
rule based upon similar reasoning, believing that it would
“deter unreasonable searches,” Oregon v. Elstad, 470 U. S.
298, 306 (1985), by removing an officer’s “incentive to dis-
regard [the Fourth Amendment],” Elkins v. United States,
364 U. S. 206, 217 (1960).7
The same logic applies here and demonstrates that the
incidental restriction on alleged First Amendment freedoms
is no greater than essential to further the interest of protect-
ing the privacy of individual communications. Were there
no prohibition on disclosure, an unlawful eavesdropper who
wanted to disclose the conversation could anonymously laun-
der the interception through a third party and thereby avoid
detection. Indeed, demand for illegally obtained private in-
formation would only increase if it could be disclosed with-
out repercussion. The law against interceptions, which the
Court agrees is valid, would be utterly ineffectual without
these antidisclosure provisions.
For a similar reason, we upheld against First Amendment
challenge a law prohibiting the distribution of child pornog-
raphy. See New York v. Ferber, 458 U. S. 747 (1982). Just
as with unlawfully intercepted electronic communications,
we there noted the difficulty of policing the “low-profile,
clandestine industry” of child pornography production and
concurred with 36 legislatures that “[t]he most expeditious
if not the only practical method of law enforcement may be
to dry up the market for this material by imposing severe
criminal penalties on persons selling, advertising, or other-
wise promoting the product.” Id., at 760. In so doing, we
did not demand, nor did Congress provide, any empirical
7 In crafting the exclusionary rule, we did not first require empirical
evidence. See Elkins, 364 U. S., at 218 (“Empirical statistics are not
available to show that the inhabitants of states which follow the exclu-
sionary rule suffer less from lawless searches and seizures than do those
of states which admit evidence unlawfully obtained”). When it comes
to this Court’s awesome power to strike down an Act of Congress as un-
constitutional, it should not be “do as we say, not as we do.”

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552 BARTNICKI v. VOPPER
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evidence to buttress this basic syllogism. Indeed, we re-
affirmed the theory’s vitality in Osborne v. Ohio, 495 U. S.
103, 109–110 (1990), finding it “surely reasonable for the
State to conclude that it will decrease the production of child
pornography if it penalizes those who possess and view the
product, thereby decreasing demand.” 8
At base, the Court’s decision to hold these statutes un-
constitutional rests upon nothing more than the bald sub-
stitution of its own prognostications in place of the rea-
soned judgment of 41 legislative bodies and the United
States Congress.9 The Court does not explain how or from
where Congress should obtain statistical evidence about the
effectiveness of these laws, and “[s]ince as a practical matter
it is never easy to prove a negative, it is hardly likely that
conclusive factual data could ever be assembled.” Elkins,
supra, at 218. Reliance upon the “dry-up-the-market” the-
8 The Court attempts to distinguish Ferber and Osborne on the ground
that they involved low-value speech, but this has nothing to do with the
reasonableness of the “dry-up-the-market” theory. The Court also posits
that Congress here could simply have increased the penalty for intercept-
ing cellular communications. See ante, at 529. But the Court’s back-seat
legislative advice does nothing to undermine the reasonableness of Con-
gress’ belief that prohibiting only the initial interception would not effec-
tively protect the privacy interests of cellular telephone users.
9 The Court observes that in many of the cases litigated under § 2511(1),
“ the person or persons intercepting the communication ha[ve] been
known.” Ante, at 530. Of the 206 cases cited in the appendices, 143
solely involved § 2511(1)(a) claims of wrongful interception—disclosure
was not at issue. It is of course unremarkable that intentional intercep-
tion cases have not been pursued where the identity of the eavesdropper
was unknown. Of the 61 disclosure and use cases with published facts
brought under §§ 2511(1)(c) and (d), 9 involved an unknown or unproved
eavesdropper, 1 involved a lawful pen register, and 5 involved recordings
that were not surreptitious. Thus, as relevant, 46 disclosure cases in-
volved known eavesdroppers. Whatever might be gleaned from this fig-
ure, the Court is practicing voodoo statistics when it states that it under-
mines the “dry-up-the-market” theory. See ante, at 531, n. 17. These
cases say absolutely nothing about the interceptions and disclosures that
have been deterred.

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553 Cite as: 532 U. S. 514 (2001)
Rehnquist, C. J., dissenting
ory is both logical and eminently reasonable, and our prece-
dents make plain that it is “far stronger than mere specula-
tion.” United States v. Treasury Employees, 513 U. S. 454,
475 (1995).
These statutes also protect the important interests of de-
terring clandestine invasions of privacy and preventing the
involuntary broadcast of private communications. Over a
century ago, Samuel Warren and Louis Brandeis recognized
that “[t]he intensity and complexity of life, attendant upon
advancing civilization, have rendered necessary some re-
treat from the world, and man, under the refining influence
of culture, has become more sensitive to publicity, so that
solitude and privacy have become more essential to the in-
dividual.” The Right to Privacy, 4 Harv. L. Rev. 193, 196
(1890). “There is necessarily, and within suitably defined
areas, a . . . freedom not to speak publicly, one which serves
the same ultimate end as freedom of speech in its affirma-
tive aspect.” Harper & Row, Publishers, Inc. v. Nation En-
terprises, 471 U. S. 539, 559 (1985) (internal quotation marks
and citation omitted). One who speaks into a phone “is
surely entitled to assume that the words he utters into the
mouthpiece will not be broadcast to the world.” Katz v.
United States, 389 U. S. 347, 352 (1967); cf. Gelbard v. United
States, 408 U. S. 41, 52 (1972) (compelling testimony about
matters obtained from an illegal interception at a grand jury
proceeding “compounds the statutorily proscribed invasion
of . . . privacy by adding to the injury of the interception the
insult of . . . disclosure”).
These statutes undeniably protect this venerable right
of privacy. Concomitantly, they further the First Amend-
ment rights of the parties to the conversation. “At the
heart of the First Amendment lies the principle that each
person should decide for himself or herself the ideas and be-
liefs deserving of expression, consideration, and adherence.”
Turner Broadcasting, 512 U. S., at 641. By “protecting the
privacy of individual thought and expression,” United States

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554 BARTNICKI v. VOPPER
Rehnquist, C. J., dissenting
v. United States Dist. Court for Eastern Dist. of Mich., 407
U. S. 297, 302 (1972), these statutes further the “uninhibited,
robust, and wide-open” speech of the private parties, New
York Times Co. v. Sullivan, 376 U. S. 254, 270 (1964). Un-
like the laws at issue in the Daily Mail cases, which served
only to protect the identities and actions of a select group
of individuals, these laws protect millions of people who
communicate electronically on a daily basis. The chilling
effect of the Court’s decision upon these private conver-
sations will surely be great: An estimated 49.1 million ana-
log cellular telephones are currently in operation. See Hao,
Nokia Profits from Surge in Cell Phones, Fla. Today, July 18,
1999, p. E1.
Although the Court recognizes and even extols the virtues
of this right to privacy, see ante, at 532–533, these are “mere
words,” W. Shakespeare, Troilus and Cressida, act v, sc. 3,
overridden by the Court’s newfound right to publish un-
lawfully acquired information of “public concern,” ante,
at 525. The Court concludes that the private conversation
between Gloria Bartnicki and Anthony Kane is somehow a
“debate . . . . worthy of constitutional protection.” Ante,
at 535. Perhaps the Court is correct that “[i]f the state-
ments about the labor negotiations had been made in a
public arena—during a bargaining session, for example—
they would have been newsworthy.” Ante, at 525. The
point, however, is that Bartnicki and Kane had no inten-
tion of contributing to a public “debate” at all, and it is
perverse to hold that another’s unlawful interception and
knowing disclosure of their conversation is speech “worthy
of constitutional protection.” Cf. Hurley v. Irish-American
Gay, Lesbian and Bisexual Group of Boston, Inc., 515 U. S.
557, 573 (1995) (“[O]ne important manifestation of the prin-
ciple of free speech is that one who chooses to speak may
also decide ‘what not to say’ ”). The Constitution should not
protect the involuntary broadcast of personal conversations.
Even where the communications involve public figures or

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555 Cite as: 532 U. S. 514 (2001)
Rehnquist, C. J., dissenting
concern public matters, the conversations are nonetheless
private and worthy of protection. Although public persons
may have forgone the right to live their lives screened from
public scrutiny in some areas, it does not and should not
follow that they also have abandoned their right to have a
private conversation without fear of it being intentionally
intercepted and knowingly disclosed.
The Court’s decision to hold inviolable our right to broad-
cast conversations of “public importance” enjoys little sup-
port in our precedents. As discussed above, given the quali-
fied nature of their holdings, the Daily Mail cases cannot
bear the weight the Court places upon them. More mysti-
fying still is the Court’s reliance upon the “Pentagon Papers”
case, New York Times Co. v. United States, 403 U. S. 713
(1971) (per curiam), which involved the United States’ at-
tempt to prevent the publication of Defense Department
documents relating to the Vietnam War. In addition to in-
volving Government controlled information, that case fell
squarely under our precedents holding that prior restraints
on speech bear “ ‘a heavy presumption against . . . con-
stitutionality.’ ” Id., at 714. Indeed, it was this presump-
tion that caused Justices Stewart and White to join the 6-to-3
per curiam decision. See id., at 730–731 (White, J., joined
by Stewart, J., concurring) (“I concur in today’s judgments,
but only because of the concededly extraordinary protection
against prior restraints enjoyed by the press under our con-
stitutional system”). By no stretch of the imagination can
the statutes at issue here be dubbed “prior restraints.”
And the Court’s “parallel reasoning” from other inapposite
cases fails to persuade. Ante, at 535.
Surely “the interest in individual privacy,” ante, at 518,
at its narrowest, must embrace the right to be free from
surreptitious eavesdropping on, and involuntary broadcast
of, our cellular telephone conversations. The Court sub-
ordinates that right, not to the claims of those who them-
selves wish to speak, but to the claims of those who wish to

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556 BARTNICKI v. VOPPER
Rehnquist, C. J., dissenting
publish the intercepted conversations of others. Congress’
effort to balance the above claim to privacy against a mar-
ginal claim to speak freely is thereby set at naught.