03/02/2020 Bartnicki v. Vopper, 532 US 514 - Supreme Court 2001 - Google Scholar Nonetheless, the Court faults Congress for providing "no empirical evidence to support the assumption that the prohibition against disclosures reduces the number of illegal interceptions," ante, at 530-531, and insists that "there is no basis for assuming that imposing sanctions upon respondents will deter the unidentified scanner from continuing 550 *550 to engage in surreptitious interceptions," ante, at 531. It is the Court's reasoning, not the judgment of Congress and numerous States regarding the necessity of these laws, which disappoints. The "quantum of empirical evidence needed to satisfy heightened judicial scrutiny of legislative judgments will vary up or down with the novelty and plausibility of the justification raised." Nixon v. Shrink Missouri Government PAC, 528 U. S. 377, 391 (2000). "[C]ourts must accord substantial deference to the predictive judgments of Congress." Turner Broadcasting, 512 U. S., at 665 (citing Columbia Broadcasting System, Inc. v. Democratic National Committee, 412 U. S. 94, 103 (1973)). This deference recognizes that, as an institution, Congress is far better equipped than the judiciary to evaluate the vast amounts of data bearing upon complex issues and that "[s]ound policy making often requires legislators to forecast future events and to anticipate the likely impact of these events based on deductions and inferences for which complete empirical support may be unavailable." Turner Broadcasting, 512 U. S., at 665. Although we must nonetheless independently evaluate such congressional findings in performing our constitutional review, this "is not a license to reweigh the evidence de novo, or to replace Congress' factual predictions with our own." Id., at 666. The "dry-up-the-market" theory, which posits that it is possible to deter an illegal act that is difficult to police by preventing the wrongdoer from enjoying the fruits of the crime, is neither novel nor implausible. It is a time-tested theory that under girds numerous laws, such as the prohibition of the knowing possession of stolen goods. See 2 W. Lafave & A. Scott, Substantive Criminal Law § 8.10(a), p. 422 (1986) ("Without such receivers, theft ceases to be profitable. It is obvious that the receiver must be a principal target of any society anxious to stamp out theft in its various forms"). We 551 ourselves adopted the exclusionary *551 rule based upon similar reasoning, believing that it would "deter unreasonable searches," Oregon v. Elstad, 470 U. S. 298, 306 (1985), by removing an officers "incentive to disregard [the Fourth Amendment]," Elkins v. United States, 364 U. S. 206, 217 (1960).[7] The same logic applies here and demonstrates that the incidental restriction on alleged First Amendment freedoms is no greater than essential to further the interest of protecting the privacy of individual communications. Were there no prohibition on disclosure, an unlawful eavesdropper who wanted to disclose the conversation could anonymously launder the interception through a third party and thereby avoid detection. Indeed, demand for illegally obtained private information would only increase if it could be disclosed without repercussion. The law against interceptions, which the Court agrees is valid, would be utterly ineffectual without these anti disclosure provisions. For a similar reason, we upheld against First Amendment challenge a law prohibiting the distribution of child pornography. See New York v. Ferber, 458 U. S. 747 (1982). Just as with unlawfully intercepted electronic communications, we there noted the difficulty of policing the "low-profile, clandestine industry" of child pornography production and concurred with 36 legislatures that "[t]he most expeditious if not the only practical method of law enforcement may be to dry up the market for this material by imposing severe criminal penalties on persons selling, 552 advertising, or otherwise promoting the product." Id., at 760. In so doing, we did not demand, nor did Congress provide, any empirical *552 evidence to buttress this basic syllogism. Indeed, we reaffirmed the theory's vitality in Osborne v. Ohio, 495 U. S. 103, 109-110 (1990), finding it "surely reasonable for the State to conclude that it will decrease the production of child pornography if it penalizes those who possess and view the product, thereby decreasing demand."[8] At base, the Court's decision to hold these statutes unconstitutional rests upon nothing more than the bald substitution of its own prognostications in place of the reasoned judgment of 41 legislative bodies and the United States Congress. [9] The Court does not explain how or from where Congress should obtain statistical evidence about the effectiveness of these laws, and "[s]ince as a practical matter it is never easy to prove a negative, it is hardly likely that conclusive factual 553 data could ever be assembled." Elkins, supra, at 218. Reliance upon the "dry-up-the-market" theory *553 is both logical and eminently reasonable, and our precedents make plain that it is "far stronger than mere speculation." United States v. Treasury Employees, 513 U. S. 454, 475 (1995). These statutes also protect the important interests of deterring clandestine invasions of privacy and preventing the involuntary broadcast of private communications. Over a century ago, Samuel Warren and Louis Brandeis recognized that "[t]he intensity and complexity of life, attendant upon advancing civilization, have rendered necessary some retreat from the world, and man, under the refining influence of culture, has become more sensitive to publicity, so that solitude and privacy have become more essential to the individual." The Right to Privacy, 4 Harv. L. Rev. 193, 196 (1890). "There is necessarily, and within suitably defined areas, a . . . 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. 539, 559 (1985) (internal quotation marks and citation omitted). One who speaks into a phone "is surely entitled to https://scholar.google.com/scholar_case?q=bartnicki&hl=en&as_sdt=2006&case=2171346211086974391&scilh=0 11/15