03/02/2020 Bartnicki v. Vopper, 532 US 514 - Supreme Court 2001 - Google Scholar [14] The media respondents have included a list of 143 cases under § 2511(1)(a) and 63 cases under §§ 2511(1)(c) and (d)—which must also involve violations of subsection (a)—in an appendix to their brief. The Reply Brief filed by the United States contains an appendix describing each of the cases in the latter group. [15] Inonly 5 of the 206 cases listed in the appendixes, see n. 14, supra, n. 17, infra, was the identity of the interceptor wholly unknown. [16] The legislative history of the 1968 Act indicates that Congress' concern focused on private surveillance "in domestic relations and industrial espionage situations." S. Rep. No. 1097, 90th Cong., 2d Sess., 225 (1968). Similarly, in connection with the enactment of the 1986 amendment, one Senator referred to the interest in protecting private communications from "a corporate spy, a police officer without probable cause, or just a plain snoop." 131 Cong. Rec. 24366 (1985) (statement of Sen. Leahy). [17] The dissent argues that we have not given proper respect to "congressional findings" or to "`Congress' factual predictions.' " Post, at 550. But the relevant factual foundation is not to be found in the legislative record. Moreover, the dissent does not argue that Congress did provide empirical evidence in support of its assumptions, nor, for that matter, does it take real issue with the fact that in the vast majority of cases involving illegal interceptions, the identity of the person or persons responsible for the interceptions is known. Instead, the dissent advances a minor disagreement with our numbers, stating that nine cases "involved an unknown or unproved eavesdropper." Post, at 552, n. 9 (emphasis added). The dissent includes in that number cases in which the identity of the interceptor, though suspected, was not "proved" because the identity of the interceptor was not at issue or the evidence was insufficient. In any event, whether there are 5 cases or 9 involving anonymous interceptors out of the 206 cases under § 2511, in most of the cases involving illegal interceptions, the identity of the interceptor is no mystery. If, as the proponents of the dry-up-the-market theory would have it, it is difficult to identify the persons responsible for illegal interceptions (and thus necessary to prohibit disclosure by third parties with no connection to, or responsibility for, the initial illegality), one would expect to see far more cases in which the identity of the interceptor was unknown (and, concomitantly, far fewer in which the interceptor remained anonymous). Thus, not only is there a dearth of evidence in the legislative record to support the dry-up-the-market theory, but what post enactment evidence is available cuts against it. [18] Indeed, even the burden of justifying restrictions on commercial speech requires more than "`mere speculation or conjecture.' " Greater New Orleans Broadcasting Assn., Inc. v. United States, 527 U. S. 173, 188 (1999). [19] Our holding, of course, does not apply to punishing parties for obtaining the relevant information unlawfully. "It would be frivolous to assert—and no one does in these cases—that the First Amendment, in the interest of securing news or otherwise, confers a license on either the reporter or his news sources to violate valid criminal laws. Although stealing documents or private wiretapping could provide newsworthy information, neither reporter nor source is immune from conviction for such conduct, whatever the impact on the flow of news." Branzburg v. Hayes, 408 U. S. 665, 691 (1972). [20] "`The essential thrust of the First Amendment is to prohibit improper restraints on the voluntary public expression of ideas; it shields the man who wants to speak or publish when others wish him to be quiet. There is necessarily, and within suitably defined areas, a concomitant freedom not to speak publicly, one which serves the same ultimate end as freedom of speech in its affirmative aspect.' " Harper & Row, Publishers, Inc. v. Nation Enterprises, 471 U. S., at 559 (quoting Estate of Hemingway v. Random House, Inc., 23 N. Y. 2d 341, 348, 244 N. E. 2d 250, 255 (1968)). [21] Moreover, "our decisions establish that absent exceptional circumstances, reputational interests alone cannot justify the proscription of truthful speech." Butterworth v. Smith, 494 U. S. 624, 634 (1990). [22] See, e. g., Florida Star v. B. J. F., 491 U. S. 524, 535 (1989) (acknowledging "the `timidity and self-censorship' which may result from allowing the media to be punished for publishing truthful information"). [1] See 18 U. S. C. § 2511(1) (1994 ed. and Supp. V); Ala. Code § 13A-11-30 et seq. (1994); Alaska Stat. Ann. § 42.20.300(d) (2000); Ark. Code Ann. § 5— 60-120 (1997); Cal. Penal Code Ann. § 631 (West 1999); Colo. Rev. Stat. § 18-9—303 (2000); Del. Code Ann., Tit. 11, § 1336(b)(1) (1995); D. C. Code Ann. § 23-542 (1996); Fla. Stat. § 934.03(1) (Supp. 2001); Ga. Code Ann. § 16-11-66.1 (1996); Haw. Rev. Stat. § 803-42 (1993); Idaho Code § 18-6702 (1997); Ill. Comp. Stat., ch. 720, § 5/14-2(b) (1999 Supp.); Iowa Code § 808B.2 (1994); Kan. Stat. Ann. § 21-4002 (1995); Ky. Rev. Stat. Ann. § 526.060 (Michie 1999); La. Rev. Stat. Ann. § 15:1303 (West 1992); Me. Rev. Stat. Ann., Tit. 15, § 710(3) (Supp. 2000); Md. Cts. & Jud. Proc. Code Ann. § 10-402 (Supp. 2000); Mass. Gen. Laws § 272:99(C)(3) (1997); Mich. Comp. Laws Ann. § 750.539e (West 1991); Minn. Stat. § 626A.02 (2000); Mo. Rev. Stat. § 542.402 (2000); Neb. Rev. Stat. § 86-702 (1999); Nev. Rev. Stat. § 200.630 (1995); N. H. Rev. Stat. Ann. § 570—A:2 (Supp. 2000); N. J. Stat. Ann. § 2A:156A-3 (West Supp. 2000); N. M. Stat. Ann. § 30-12-1 (1994); N. C. Gen. Stat. § 15A-287 (1999); N. D. Cent. Code § 12.1-15-02 (1997); Ohio Rev. Code Ann. § 2933.52(A)(3) (1997); Okla. Stat., Tit. 13, § 176.3 (2000 Supp.); Ore. Rev. Stat. § 165.540 (1997); 18 Pa. Cons. Stat. § 5703 (2000); R. I. Gen. Laws § 11-35-21 (2000); Tenn. Code Ann. § 39-13-601 (1997); Tex. Penal Code Ann. § 16.02 (Supp. 2001); Utah Code Ann. § 77— 23a—4 (1982); Va. Code Ann. § 19.2-62 (1995); W. Va. Code § 62-1D-3 (2000); Wis. Stat. § 968.31(1) (1994); Wyo. Stat. Ann. § 7-3—602 (1995). [2] "Electronic communication" is defined as "any transfer of signs, signals, writing, images, sounds, data, or intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic, photo electronic or photo optical system." 18 U. S. C. § 2510(12) (1994 ed., Supp. V). [3] The one exception was Daily Mail, where reporters obtained the juvenile defendant's name from witnesses to the crime. See 443 U. S., at 99. However, the statute at issue there imposed a blanket prohibition on the publication of the information. See id., at 98-99. In contrast, these antidisclosure provisions do not prohibit publication so long as the information comes from a legal source. [4] In 1986, to ensure that only the most culpable could face liability for disclosure, Congress increased the scienter requirement from "willful" to "intentional." 18 U. S. C. § 2511(1)(c); see also S. Rep. No. 99-541, p. 6 (1986) ("In order to underscore that the inadvertent reception of a protected communication is not a crime, the subcommittee changed the state of mind requirement under [Title III] from `willful' to `intentional' "). https://scholar.google.com/scholar_case?q=bartnicki&hl=en&as_sdt=2006&case=2171346211086974391&scilh=0 14/15