Courts Affirm Publication Rights

We take for granted that if you didn’t lie, cheat or steal to get your information, you can publish it. I tell people on the Hotline that all the time. But prior restraints – court orders or laws telling people they cannot publish – have been at the heart of two very important, high profile cases recently decided. One affects the newsroom side of your business. The other affects more creative endeavors. But both rest on the same, bedrock principle that only in the most extreme and dire circumstances can a court stop someone from publishing something beforehand. The order of the day is that the publication goes forward, with everyone involved bearing the risks or consequences of deciding to publish.

In an important opinion, the United States Supreme Court has just answered the question: “Where the punished publisher of information has obtained the information in question in a manner lawful in itself but from a source who has obtained it unlawfully, may the government punish the ensuing publication of that information based on the defect in a chain?” And the answer is “no.”

In Bartniki v. Vopper, the Court addressed the broadcast of a illegally taped cell phone conversations. In the midst of collective-bargaining negotiations between a teachers union and the local school board, an unidentified person recorded a cellular telephone conversation between the chief negotiators for the union and the union’s president. The conversation included the following statements:

“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. (PAUSES). Really, uh, really and truthfully because this is, you know, this is bad news. (UNDECIPHERABLE).

The tape ended up in the mailbox of Yocum, the head of a local taxpayers’’ organization that had opposed the union’s demands, and he provided it to Vopper, a radio commentator. Vopper played the tape of the intercepted conversation on his public affairs talk show in connection with news reports about the settlement, and the two recorded individuals filed suit under federal and state wiretapping laws.

Based on the facts developed in the case, the Supreme Court assumed that the original recording was intention and illegal and that therefore its disclosure by Yocum and by Vopper violated the federal and state laws on their face. The question for the Court was, therefore, whether the application of those laws in this circumstance was constitutional. In preface to deciding that question, the Court made three observations: Yocum and Vopper played no part in the illegal interception; their access to the information on the tapes was obtained lawfully, even though the information itself was intercepted unlawfully by someone else; and the subject matter of the conversation was a matter of public concern. The Court noted that the statutes’ prohibitions are content-neutral but also that the naked prohibition against disclosures is fairly characterized as a regulation of pure speech.

The Court traced the long line of prohibitions against prior restraints, including protection of publication of the Pentagon Papers. Balanced against that, the Court noted the purposes underlying the wiretapping statute: removing an incentive for parties to intercept private conversations and minimizing the harm to persons whose conversations have been illegally intercepted. The Court rejected outright the notion that reducing the “market” for illegally obtained information might deter the illegal behavior itself. The Court found protection of privacy to be a more persuasive argument, though still insufficient. “[W]e acknowledge that some intrusions 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 . . . The enforcement of that provision in this case, however, implicates the core purposes of the First Amendment because it imposes sanctions on the publication of truthful information of public concern. In this case, privacy concerns give way when balanced against the interest in publishing matters of public importance.” The Court concluded:

We think it clear that parallel reasoning requires the conclusion that a stranger’s illegal conduct does not suffice to remove the First Amendment shield from speech about a matter of public concern. The months of negotiations over the proper level of compensation for teachers at the Wyoming 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 mundane than the Communist rhetoric that inspired Justice Brandeis’ classic opinion in Whitney v. California, but it is no less worthy of constitutional protection.

At about the same time that the Supreme Court decided Bartniki, the Eleventh Circuit was considering the appeal by Houghton Mifflin of the order prohibiting their publication of The Wind Done Gone, a parody of Gone With the Wind, told through the eyes of a slave. The Mitchell Trust challenged the publication, and a trial court entered an injunction. At issue was whether The Wind Done Gone was took literary license too far and wholesale appropriated the characters from Gone With the Wind in an infringing manner. A three-member panel of the Eleventh Circuit received oral arguments on the case. Stating that “It is manifest that the entry of a preliminary injunction in this copyright case was an abuse of discretion in that it represents an unlawful prior restraint in violation of the First Amendment,” the Court ruled from the bench that the publication could go forward.

Among the questions from the bench was one from Judge Marcus, citing a Supreme Court that says that a work that adds something new, that alters the original work with new meaning, is transformative. “Does not the book add something new and original?” he asked. “A profoundly new cultural and social perspective? And if true why not entitled to protection?” The Court pointed out that The Wind Done Gone is a “parallel” rather than a sequel. Judge Birch opined that Gone With the Wind is a “public figure? [It] reached a dimension greater than its parts? In order to criticize – and bring down if you will – isn’t it necessary to take and identify clearly [from GWTW].”

Whether it’s a transcript of a recorded telephone conversation or the next great American novel you’re working on, you can continue to rest easy that it will make it to print under the recent, strong prior restraint rulings from the Supreme Court and the Eleventh Circuit.