Bartnicki v. Vopper Case Brief

Why is the case important?

Bartnicki (P) and Kane (P) were union representatives whose cell phone conversation was illegally intercepted and recorded at a time when collective-bargaining negotiations were going on, in which they were involved. Vopper (D) was a radio commentator who played a tape of the conversation between the two unionists on his radio show in connection with his news story featuring the negotiated settlement. Bartnicki (P) and Kane (P) filed for damages, one ground being that Vopper (D) with others used the tape on public media despite knowing or having reasonable grounds to know that the tape was of an illegally tapped conversation. Vopper (D) claimed that his disclosure was protected under the freedom of speech guaranteed under the First Amendment.

Facts of the case

“An unidentified person intercepted and recorded a phone call between the chief union negotiator and the union president (the petitioners) during collective-bargaining negotiations involving a teachers’ union and the local school board. After a teacher-favorable proposal was accepted, a radio commentator played a tape of the intercepted conversation. Petitioners filed suit under both federal and state wiretapping laws, alleging that an unknown person using an electronic device had surreptitiously intercepted their telephone conversation. Rejecting a First Amendment protection defense, the District Court concluded, in part, that the statutes were content-neutral laws of general applicability containing “”no indicia of prior restraint or the chilling of free speech.”” Ultimately, the Court of Appeals found the statutes invalid because they deterred significantly more speech than necessary to protect the private interests at stake.”



  • the wiretapping laws which proscribe disclosure of material obtained by unlawfully tapping communications violate the First Amendment, if used to conceal information which has been obtained by legal means from the intercepting party, and when such information is related to public concern?”


    “(Stevens, J.) Yes. The provisions of federal wiretapping laws are in violation of the First Amendment if used to suppress the disclosure of information obtained legally from a party which illegally intercepted a conversation, and if the information&nbsp

  • is such as concerns the public. Since the Court has no doubt of Vopper’s statement that he was not involved in nor had knowledge of the illegal interception of the conversation, that he came into possession of the intercepted communication lawfully, and that the disclosed information was of public concern. In such a case, it would be a violation of the constitution if a state were to make a citizen liable for the publication of true information. The issue to be determined here is whether a person who has obtained access to some material in a legal manner from one who has procured it through illegal means should be punished for publishing the material. The wiretapping legislation has as its first intent the removing of incentive for any interception of&nbsp
  • private communication. This is not served if an innocent disclosure of public information obtained legally is punished under that law. The person who performed the illegal act is the one who merits punishment, and only in such a case will the punishment have the desired deterrent action.&nbsp
  • The second intent the government intends to serve through this law is to prevent harm from ensuing to the persons whose private communications were thus illegally&nbsp
  • intercepted. This is a much stronger motive, as it is an important essential of government to ensure privacy of comversation. In this suit, however, the maintenance of privacy is of less concern than the disclosure of matters which concern the public. When a person involves himself in public affairs, he invites some loss of privacy as a matter of course. This material of public concern cannot be removed from the protection afforded by the First Amendment because some unknown person acted illegally in obtaining the tapped conversation. The decision is affirmed.”


    The Court determined that the application of the statutes under the circumstances of the case violated the First Amendment . The Court posited that Petitioners and the Government identified two interests served by the federal and state statutes: the interest in removing an incentive for parties to intercept private conversations, and the interest in minimizing the harm to persons whose conversations have been illegally intercepted. However, the Court determined that the interests could not justify the statutes’ restrictions on speech.

    • Case Brief: 2001
    • Petitioner: Bartnicki
    • Respondent: Vopper
    • Decided by: Rehnquist Court

    Citation: 532 US 514 (2001)
    Argued: Dec 5, 2000
    Decided: May 21, 2001