April 12, 2013

"No one would be in trouble over this scandal if only David Corn had the news judgment to recognize a nonstory."

Says James Taranto. The distinction between this bland chat about things Ashley Judd wrote in her memoir is nothing like the explosive conversation in Bartnicki v. Vopper, the Supreme Court case that said "a stranger's illegal conduct does not suffice to remove the First Amendment shield from speech about a matter of public concern."
[M]embers of the Pennsylvania State Education Association discussed violently retaliating against school board members who were their adversaries in collective-bargaining negotiations. A quote from the tape: "If they're not gonna move for three percent, we're gonna have to go to their, their homes.... To blow off their front porches, we'll have to do some work on some of those guys...."
In Bartnicki, Justice Stevens (joined by Justices O'Connor, Kennedy, Souter, Ginsburg, and Breyer) says there's "a conflict between interests of the highest order — on the one hand, the interest in the full and free dissemination of information concerning public issues, and, on the other hand, the interest in individual privacy and, more specifically, in fostering private speech." But: "The normal method of deterring unlawful conduct is to impose an appropriate punishment on the person who engages in it." And: "It would be quite 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." 

The majority acknowledges the interest in privacy, but says it doesn't extend to matters of "public or general interest." Taranto opines that it's not so clear-cut that the McConnell campaign's brainstorming about attacking Judd is really a matter of "public interest" since it wasn't as interesting as the "blow off their front porches" bombshell in Bartnicki. Taranto points to the concurring opinion by Breyer (joined by O'Connor). That says:
[T]he 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 speakers' legitimate privacy expectations are unusually low, and the public interest in defeating those expectations is unusually high...
So Breyer claims to see a balancing test in the majority's opinion (which he joins). He also wants it to be possible for "legislatures to respond flexibly to the challenges future technology may pose to the individual's interest in basic personal privacy." Meanwhile, in the dissenting opinion, Chief Justice Rehnquest (joined by Justices Scalia and Thomas) frets about advancing technology and "the right to be free from surreptitious eavesdropping" (which, they say, isn't going to be deterred if it's possible to "anonymously launder the interception through a third party and thereby avoid detection").

It's 12 years later, and technology has advanced much further, and after this Corn incident, every campaign should expect any and all private sessions to hit the internet. Maybe Taranto thinks you can piece together a limit on Bartnicki from the Breyer 2 and the Rehnquist 3, but I wouldn't count on it. Journalists are likely to take risks. Once there's audio, some journalist will always be the Corn.

And what difference does it make now? The real advancement in technology is that the audio can be dumped directly onto the internet. Today's eavesdroppers don't need a journalist to grant him a platform. So what is gained by penalizing the Corns of this world? I'd say we're better off getting some kind of journalistic filter, even if that filter is politically biased. There are biases all the way around in journalism. Even if we're not better off, we gain nothing worth intimidating journalists about. This material is breaking loose, one way or another.

19 comments:

Achilles said...

The most important condition on a law is that it is enforced impartially. What is clear is that the left and progressives are utterly incapable of living up to the standards they hold for their opponents. They tried to throw Okeefe in jail for similar tactics. They condone this.

Under these circumstances it would be better to have no federal laws because there is no reason to think they will be enforced fairly.

Revenant said...

Wasn't O'Keefe a party to the recordings he made?

edutcher said...

Too bad people like him can't be sued for journolistic malpractice.

Dante said...

Well, I disagree. Why does "Of public interest" matter? Isn't it in the Chinese "Public Interest" to have all the designs for all the atom bombs in the US? I think they stole them anyway.

Furthermore, the issue here is not one of "Public Interest." It's the same stuff that goes on everywhere, to get people lined up to put all the force into the arrow-head.

The real question is whether private speech is protected. I think it is. The sanctity of the individual is more important.

And naturally, I hate the blood sucking Unions, and their ego boosting ways. I had one young firefighter telling me earnestly he thought he deserved a million a year. And he believed it, from the brain-washing Union leaders.

You can report on that without violating the law, but you can't be lazy about it. You have to think. But Journolists have been programed to think in one way. Oh well.

virgil xenophon said...

@Achilles/
and it is just such concerns as you have voiced that cause many to call into question the very bed-rock legitimacy of our present system in its entirety..

Synova said...

"The normal method of deterring unlawful conduct is to impose an appropriate punishment on the person who engages in it."

Unless it's the 2nd Amendment.

Michael K said...

Ashley Judd was gorgeous in "De Lovely" but she is a nutball. This will only hurt her, not McConnell.

Michael K said...

Ashley Judd was gorgeous in "De Lovely" but she is a nutball. This will only hurt her, not McConnell.

phx said...

"This will only hurt her, not McConnell."

It will sweeten both their book deals.

Smilin' Jack said...

The distinction between this bland chat about things Ashley Judd wrote in her memoir is nothing like the explosive conversation....

Huh? Seems one of us has had too much wine tonight....

john marzan said...

Today's eavesdroppers don't need a journalist to grant him a platform. So what is gained by penalizing the Corns of this world? I'd say we're better off getting some kind of journalistic filter, even if that filter is politically biased. There are biases all the way around in journalism. Even if we're not better off, we gain nothing worth intimidating journalists about. This material is breaking loose, one way or another.

I disagree. if somebody dumped the illegal recordings directly onto the internet,

1) there will always be a question of whether the tape is legitimate, spliced or edited to portray something that is not really there. the tapes ' credibility will automatically be in question.

2) if a journalist decides to report on this, then it becomes legitimate news, not just "dirty tricks" from democrat operatives.

3) if somebody dumped this on the internet (instead of going to corn), the FBI investigation sen. mcconnell requested for will cast a wider net. which will be good because i suspect the obama machine or OFA at least knew something about this illegal wiretapping. don't tell me they didnt leak romney's tax records to their allies...

john marzan said...

if corn's expose involved something like this, i'd call him a hero

http://en.wikipedia.org/wiki/Hello_Garci_scandal

Richard Dolan said...

What's interesting (to me, anyway) is how both Breyer and Ann frame the discussion using a kind of economic anaysis. For Breyer, that's not a surprise at all. He's got a long background in antitrust issues, and has always been an unofficial 'law and economics' kind of thinker. Balancing tests, trade-offs and the like -- the legal equivalents of supply and demand, input-output, price and cost for economics -- are his usual analytic categories. Ann's comment about what rule would generate the better outcome, measured by more output of a socially desirable product and less of the undesirable, is also standard-fare economics.

How the dismal science rules the day. Progress of a sort, no doubt, but no one ever said it was going to be pretty.

ken in sc said...

What's this thing with unions and front porches? I had a friend whose grandfather was an official with Nabisco—then called National Biscuit Company—Whose front porch was blown up during a union conflict.

RunnerJeffM said...

Judith Miller was unavailable for comment.

Original Mike said...
This comment has been removed by the author.
Original Mike said...

Poor garage.

Jim Treacher said...

"So what is gained by penalizing the Corns of this world?"

Fun.

False Majority said...

Justice Breyer's Bartnicki concurrence "cautioned that this case was decided on the facts that the broadcasters acted lawfully in obtaining the information and the information involved the threat of physical harm to others. It did not signal a 'significantly broader constitutional immunity for the media,' he warned."[1]

Subsequently, many lower courts have "distinguished Bartnicki on the ground that the disclosures were not a matter of public concern,"[2] i.e., lower courts have accepted Breyer's position that Bartnicki presents a "narrow holding limited to the special circumstances" of that case. Indeed, "[i]n no case reported to date has the holding in Bartnicki been applied to reach a similar conclusion in an analogous case."[3]

In short, it appears that lower courts have already "pieced together a limit on Bartnicki" based on Breyer's concurrence.

Whether that limit will prevail in possible litigation between Mitch McConnell and Progress Kentucky, David Corn, and/or Mother Jones remains to be seen.


[1] Eric B. Easton, "Ten Years After: Bartnicki v. Vopper as a Laboratory for First Amendment Advocacy and Analysis," University of Louisville Law Review, Vol. 50, No. 2, p. 287, 331 (2011). Available at SSRN: http://ssrn.com/abstract=1986895.

[2] Id. at 334 (citing cases).

[3] Id.