Bartnicki v. Vopper

Following is the case brief for Bartnicki v. Vopper, 532 U.S. 514 (2001)

Case Summary of Bartnicki v. Vopper:

  • During negotiations between a teacher’s union and a local school board, a cell phone conversation between union leaders was surreptitiously recorded by an unknown eavesdropper.  The recording was later disclosed to the public on respondent Vopper’s radio program.
  • Petitioners sued for violations of federal and state wiretap statutes.  The District Court held that the First Amendment does not protect Vopper’s disclosure of the recorded conversation.
  • The Third Circuit reversed, finding that the wiretap statutes were invalid because they restricted more speech than what privacy requires.
  • The Supreme Court affirmed the Third Circuit’s decision.  It held that a person who discloses a conversation that was illegally recorded (by a third party) is protected by the First Amendment, provided the conversation was of public importance.

Bartnicki v. Vopper Case Brief

Statement of the Facts:

An unknown eavesdropper intercepted a telephone conversation between two leaders of the union representing teachers of a Pennsylvania high school.  The union was in the midst of publicly contentious negotiations with the local school board at the time.

The conversation, in which one speaker suggested “blow[ing] off [the] front porches” of the homes of the school board members, made its way to a radio commentator, respondent Vopper.  After negotiations concluded, Vopper played the phone conversation on his radio program.

The relevant federal and state wiretapping statutes made it not only illegal to intercept conversations, but also to disclose such conversations knowing that they were illegally obtained.

Procedural History:

  • Petitioners filed a suit in Federal District Court.  They sought damages under the federal and state wiretapping statutes.
  • In response to cross-motions for summary judgment, the District Court found that the First Amendment did not protect Vopper’s disclosure of the conversation.
  • Accepting an interlocutory appeal, the Third Circuit Court of Appeals reversed.  It held that the wiretapping statutes were invalid for deterring more speech than necessary to protect privacy interests.
  • To resolve a conflict between the Third Circuit’s decision and a decision from the D.C. Circuit, the Supreme Court granted certiorari.

Issue and Holding:

Does the First Amendment protect a person who disclosed a surreptitiously recorded conversation of public concern, knowing that the conversation was obtained illegally?  Yes.


The judgment of the Third Circuit Court of Appeals is affirmed.

Rule of Law or Legal Principle Applied:

The First Amendment protects a person who discloses a surreptitiously recorded conversation involving matters of public concern, even though that person knew the conversation was obtained illegally.


  • Factual assumptions for purposes of the case.

As a threshold matter, the Court accepted, due to the procedural posture of the case, that (i) Vopper knew the conversation was obtained illegally (although Vopper was not involved in the illegal recording); and (ii) the conversation involved matters of public concern.

  • The decision in New York Times Co. v. United States controls here.

The wiretapping statutes at issue are “content-neutral,” i.e., they do not prohibit speech based on its content.  However, the Court is guided by New York Times Co. v. United States, 403 U.S. 713 (1971).  The Court in New York Times Co. held that the disclosure of material of great public concern, which was stolen by a third party, was protected by the First Amendment. Accordingly, the conversation here was of public concern, it was obtained illegally, and thus its disclosure is protected by the First Amendment.

  • Balancing privacy vs. publishing matters of public importance.

The Government’s interest in restricting speech through the wiretapping statutes are unavailing on the facts of this case.  First, the interest in deterring the recording of private conversations is not furthered by punishing a law-abiding possessor of the conversation, when it was obtained by a third party.  Second, the interest in minimizing harm to the people who thought their conversation was private is not as strong as the public’s interest in learning information of public importance.

Concurring and Dissenting Opinions:

Concurring Opinion (Breyer):

The Court’s holding should be understood as being limited to the facts of this case.  The Court’s holding does not imply a broader “public interest” immunity for the media.

Dissenting Opinion (Rehnquist):

Technological advances have created new, serious privacy concerns in our society.  We are now in a position of not knowing who may have access to our personal correspondence, health records, or financial records.  The wiretapping statutes at issue here, and those of the other states in the country, seek to protect against the most egregious violations of privacy — particularly, the intentional recording, and knowing disclosure, of electronic communications. The Court’s decision here diminishes the First Amendment by chilling the speech of millions of people who rely on electronic devices to communicate every day.


Bartnicki v. Vopper presents a fascinating debate on the balance between protecting private communications and publishing matters of public importance.  The Court in this case, in a 6-3 decision, has found that publishing matters of public importance outweighs the harm that may be caused to those who do not expect their private conversations to be made public — only where the possessor of the recorded conversation was not involved in any illegality.  That said, it appears the Court would be very protective of privacy in matters where a conversation was not of public importance.

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