Monday’s 6-3 decision in Bartnicki v. Vopper appears to be a victory for the media – the First Amendment allows the media to publish illegally obtained information in the public interest.

A Pennsylvania radio commentator decided to broadcast the illegally intercepted cell-phone conversation of two union officials talking about “blowing up” the porches of their management opposition in the event that the union failed to secure the pay raise they demanded.

Bartnicki cited wiretap law and believed that the radio station had no legal grounding for publishing illegally obtained information.

This very qualified decision in favor of the media will come back to haunt the press. Justice John Paul Stevens, the last bastion of strong liberalism, wrote the opinion for the majority. He stated that it wasn’t enough that the story was newsworthy but that it must serve some public interest, and it is only because of this latter caveat, that Vopper won the case.

As far as the Constitution in concerned, it is not the government’s business to decide whether something is newsworthy or not.

In fact, the First Amendment explicitly says that “Congress shall make no law abridging the freedom…..” The people who are in the business of news-journalists-decide what is newsworthy. Judges, who are in the business of interpreting the laws, should not be here to define the news.

Justices Stephen G. Breyer and Sandra Day O’Connor made it clear in their concurring opinions that the court could easily have voted the other way had the facts been slightly different.

Journalists may have won the day. But a dark cloud has settled over media law. Liability for publishing illegally gotten materials may be just around the corner. Tomorrow, it may not be Congress infringing on press freedom, but the courts.–JDS

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