Stevens, joined by O'Connor, Kennedy, Souter, Ginsburg, Breyer
Breyer, joined by O'Connor
Rehnquist, joined by Scalia, Thomas
Bartnicki v. Vopper, 532 U.S. 514 (2001), is a United States Supreme Court case relieving a media defendant of liability for broadcasting a taped conversation of a labor official talking to other union people about a teachers' strike. The parties stipulated that the taped conversation had been illegally obtained by an intercept in violation of the Electronic Communications Privacy Act. The Court held the radio station not liable because the radio station itself did nothing illegal to obtain the tape. The case stands for the rule that media defendants are not liable even if a third party violated the law.
Justice William Rehnquist, in his dissent, was concerned with the effect that this decision would have on speech. He noted that 40 states, the District of Columbia and the federal government have made knowing disclosure (publishing) of illegally intercepted electronic communication itself an illegal act. He also argued that that disclosure would produce a chilling effect in the creation of initial, albeit electronic, speech:
"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."
Subsequent related decisions
On April 20, 2010 the Supreme Court held in United States v. Stevens (the so-called animal torture video case) that the government cannot hold criminally liable someone who distributes a tape of an illegal act that he/she was not complicit in committing, with exceptions.