03/02/2020 Bartnicki v. Vopper, 532 US 514 - Supreme Court 2001 - Google Scholar We agree with petitioners that § 2511(1)(c), as well as its Pennsylvania analog, is in fact a content-neutral law of general applicability. "Deciding whether a particular regulation is content based or content neutral is not always a simple task. . . . As a general rule, laws that by their terms distinguish favored speech from disfavored speech on the basis of the ideas or views expressed are content based." Turner Broadcasting System, Inc. v. FCC, 512 U. S. 622, 642-643 (1994). In determining whether a regulation is content based or content neutral, we look to the purpose behind the regulation; typically, "[g]overnment regulation of expressive activity is content neutral so long as it is `justified without reference to the content of the regulated speech.' " Ward v. Rock Against Racism, 491 U. S. 781, 791 (1989).[9] In this suit, the basic purpose of the statute at issue is to "protec[t] the privacy of wire[, electronic,] and oral communications." S. Rep. No. 1097, 90th Cong., 2d Sess., 66 (1968). The statute does not distinguish based on the content of the intercepted conversations, nor is it justified by reference to the content of those conversations. Rather, the communications at issue are singled out by virtue of the fact that they were illegally intercepted—by virtue of the source, rather than the subject matter. On the other hand, the naked prohibition against disclosures is fairly characterized as a regulation of pure speech. 527 Unlike the prohibition against the "use" of the contents of *527 an illegal interception in § 2511(1)(d),[10] subsection (c) is not a regulation of conduct. It is true that the delivery of a tape recording might be regarded as conduct, but given that the purpose of such a delivery is to provide the recipient with the text of recorded statements, it is like the delivery of a handbill or a pamphlet, and as such, it is the kind of "speech" that the First Amendment protects.[11] As the majority below put it, "[i]f the acts of `disclosing' and `publishing' information do not constitute speech, it is hard to imagine what does fall within that category, as distinct from the category of expressive conduct." 200 F. 3d, at 120. VI 528 As a general matter, "state action to punish the publication of truthful information seldom can satisfy constitutional standards." Smith v. Daily Mail Publishing Co., 443 U. S. 97, 102 (1979). More specifically, this Court has repeatedly *528 held that "if a newspaper lawfully obtains truthful information about a matter of public significance then state officials may not constitutionally punish publication of the information, absent a need . . . of the highest order." Id., at 103; see also Florida Star v. B. J. F., 491 U. S. 524 (1989); Landmark Communications, Inc. v. Virginia, 435 U. S. 829 (1978). Accordingly, in New York Times Co. v. United States, 403 U. S. 713 (1971) (per curiam), the Court upheld the right of the press to publish information of great public concern obtained from documents stolen by a third party. In so doing, that decision resolved a conflict between the basic rule against prior restraints on publication and the interest in preserving the secrecy of information that, if disclosed, might seriously impair the security of the Nation. In resolving that conflict, the attention of every Member of this Court was focused on the character of the stolen documents' contents and the consequences of public disclosure. Although the undisputed fact that the newspaper intended to publish information obtained from stolen documents was noted in Justice Harlan's dissent, id., at 754, neither the majority nor the dissenters placed any weight on that fact. However, New York Times v. United States raised, but did not resolve, the question "whether, in cases where information has been acquired unlawfully by a newspaper or by a source, government may ever punish not only the unlawful acquisition, but the ensuing publication as well."[12] Florida Star, 491 U. S., at 535, n. 8. The question here, however, is a narrower version of that still-open question. Simply put, the issue here is this: "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?" Boehner, 191 F. 3d, at 484-485 (Sentelle, J., dissenting). 529 *529 Our refusal to construe the issue presented more broadly is consistent with this Court's repeated refusal to answer categorically whether truthful publication may ever be punished consistent with the First Amendment. Rather, "[o]ur cases have carefully eschewed reaching this ultimate question, mindful that the future may bring scenarios which prudence counsels our not resolving anticipatorily. . . . We continue to believe that the sensitivity and significance of the interests presented in clashes between [the] First Amendment and privacy rights counsel relying on limited principles that sweep no more broadly than the appropriate context of the instant case." Flor- ida Star, 491 U. S., at 532-533. See also Landmark Communications, 435 U. S., at 838. Accordingly, we consider whether, given the facts of these cases, the interests served by § 2511(1)(c) can justify its restrictions on speech. https://scholar.google.com/scholar_case?q=bartnicki&hl=en&as_sdt=2006&case=2171346211086974391&scilh=0 4/15