John A. BOEHNER, Appellee v. James A. McDERMOTT, Appellant.
No. 04-7203.
United States Court of Appeals, District of Columbia Circuit.
Argued Nov. 15, 2005. Decided March 28, 2006.
441 F.3d 1010
Theodore J. Boutrous, Jr. and Thomas H. Dupree, Jr. were on the brief of amici curiae Dow Jones & Company, Inc., et al. in support of appellant.
Michael A. Carvin argued the cause for appellee. With him on the brief was Louis K. Fisher.
Before: GINSBURG, Chief Judge, and SENTELLE and RANDOLPH, Circuit Judges.
Opinion for the court filed by Circuit Judge RANDOLPH.
Dissenting opinion filed by Circuit Judge SENTELLE.
RANDOLPH, Circuit Judge.
After the Supreme Court vacated our decision in Boehner v. McDermott, 191 F.3d 463 (D.C. Cir. 1999) (Boehner I), and returned the case to us for further consideration in light of Bartnicki v. Vopper, 532 U.S. 514, 121 S. Ct. 1753, 149 L. Ed. 2d 787 (2001), see 532 U.S. 1050, 121 S. Ct. 2190, 149 L. Ed. 2d 1022 (2001), we remanded the case to the district court; the parties engaged in discovery; and, on cross motions, the district court granted summary judgment in favor of Representative John A. Boehner, awarding him $10,000 in statutory damages, see
Plaintiff John A. Boehner represents Ohio‘s Eighth District; defendant James A. McDermott represents Washington‘s Seventh District. The complaint alleged that Representative McDermott violated
On December 21, 1996, Representative Boehner participated in a conference call with members of the Republican Party leadership, including then-Speaker of the House Newt Gingrich. At the time of the conversation Gingrich was the subject of an investigation by the House Committee on Standards of Official Conduct, commonly known as the House Ethics Committee. Representative Boehner was chairman of the House Republican Conference. The participants discussed various strategies regarding how to deal with an expected Ethics Subcommittee announcement of Gingrich‘s agreement to accept a reprimand and to pay a fine in exchange for the Committee‘s promise not to hold a hearing.
Representative Boehner was driving through Florida when he joined the conference call. He spoke from a cellular telephone in his car. John and Alice Martin, who lived in Florida, used a police radio scanner to eavesdrop on the conversation, in violation of
At about 5 p.m. on January 8, 1997, in a small anteroom adjacent to the Ethics Committee hearing room, the Martins delivered the tape to Representative McDermott in a sealed 8-1/2” by 11” envelope. At the time, Representative McDermott was the ranking Democrat on the Ethics Committee. A conversation between the Martins and Representative McDermott ensued, of which more hereafter. With the envelope the Martins also delivered a business card and a typed letter, dated January 8, 1997, and addressed to “Committee on Standards of Official Conduct . . . Jim McDermott, Ranking Member.” The letter stated:
Enclosed in the envelope you will find a tape of a conversation heard December 21, 1996 at about 9:45 a.m. The call was a conference call heard over a scanner. We felt the information included were of importance to the committee. We live in the 5th. Congressional District and attempted to give the tape to Congresswoman Karen Thurman. We were advised by her to turn the tape directly over to you. We also understand that we will be granted immunity.
My husband and I work for Columbia County Schools in Columbia County Florida. We pray that committee will consider our sincerity in placing it in your hands.
We will return to our home today.
Thank you for your consideration.
John and Alice Martin
Representative McDermott then returned to the Ethics Committee hearing room. Later that evening, during a recess, Representative McDermott left the Ethics Committee hearing room and went to his office. There he opened the Martins’ envelope, dumped out the contents, and lis-
On January 10, 1997, Clymer published a front-page article in the New York Times entitled “Gingrich Is Heard Urging Tactics in Ethics Case.” The article, which included lengthy excerpts of the taped conversation, reported the circumstances leading to disclosure of the tape:
The call was taped by people in Florida who were unsympathetic to Mr. Gingrich and who said they heard it on a police scanner that happened to pick up the cellular telephone transmission of one of the participants. It was given to a Democratic Congressman, who made the tape available to the New York Times. . . . .
Mr. Gingrich, Mr. Bethune and the others discussed their tactics in a conference call, a transcript of which was made available by a Democratic Congressman hostile to Mr. Gingrich who insisted that he not be identified further.
The Congressman said the tape had been given to him on Wednesday by a couple who said they were from northern Florida. He quoted them as saying it had been recorded off a radio scanner, suggesting that one participant was using a cellular telephone. They said it was recorded about 9:45 A.M. on Dec. 21.
Adam Clymer, Gingrich Is Heard Urging Tactics in Ethics Case, N.Y. TIMES, Jan. 10, 1997, at A1, A20. The Atlanta Journal-Constitution ran a similar story on January 11th.
On January 13, 1997, the Martins held a press conference and identified Representative McDermott as the Congressman to whom they delivered the tape. Representative McDermott then sent copies of the tape to the offices of the House Ethics Committee and resigned from the Committee. The Committee Chairman, Representative Nancy Johnson, forwarded the tape to the Justice Department. The government prosecuted the Martins for violating
On cross-motions for summary judgment the district court held that Representative McDermott violated
According to Representative McDermott, the district court misinterpreted Bartnicki. As he reads the Supreme Court‘s opinion, any individual who did not participate in the illegal interception of a conversation has a First Amendment right to disclose it.
It is true that in Bartnicki the defendants had no connection to the illegal interception. The tape of the conversation wound up in Yocum‘s mailbox, placed there by some unknown person. 532 U.S. at 519, 525, 121 S. Ct. 1753. Neither Yocum nor the radio broadcaster who played the tape on his program after Yocum gave it to him knew who had done the intercepting. The Court mentioned the anonymity of the interceptor several times, id. at 525, 530 & n. 15, 531, 535, 121 S. Ct. 1753, and distinguished this case on that ground:
In the Boehner case, as in this suit, a conversation over a car cell phone was intercepted, but in that case the defendant knew both who was responsible for intercepting the conversation and how they had done it. 191 F.3d, at 465. In the opinion of the majority, the defendant acted unlawfully in accepting the tape in order to provide it to the media. Id., at 476.
532 U.S. at 522 n. 5, 121 S. Ct. 1753. We do not want to read too much into the Court‘s “but” in the first sentence, yet one must wonder why the Court drew this distinction if it meant to adopt the rule Representative McDermott urges on us. Elsewhere in the Bartnicki opinion the Court stressed that it had before it only an “as applied” challenge to the federal statute, id. at 524, 525, 121 S. Ct. 1753; that in light of the facts of the case, the question presented was “narrow,” id. at 517, 528, 529, 121 S. Ct. 1753; and that it was deciding only that those who lawfully obtain information have a First Amendment right to disclose it to the public, id. at 525, 528, 121 S. Ct. 1753 (quoting Smith v. Daily Mail Publ‘g Co., 443 U.S. 97, 103, 99 S. Ct. 2667, 61 L. Ed. 2d 399 (1979), and Florida Star v. B.J.F., 491 U.S. 524, 535 n. 8, 109 S. Ct. 2603, 105 L. Ed. 2d 443 (1989)). The Court also stated that its “holding, of course, does not apply to punishing parties for obtaining the relevant information unlawfully.” Id. at 532 n. 19, 109 S. Ct. 2603.
Representative McDermott‘s reading of these and other statements of the Court is quite implausible. By his logic, if he stole the tape from the Martins he would have lawfully obtained it because he did not participate in the initial illegal interception. Among other statements in the majority opinion, footnote 19—which we have just quoted—clearly stands for the opposite proposition. Justice Breyer, in his concurring opinion, in which Justice O‘Connor joined, understood as much. Citing footnote 19, he distinguished cases in which the person who disclosed the conversation “aided or abetted . . . the later delivery of the tape by the interceptor to an intermediary, or the tape‘s still later delivery by the intermediary to the media.” Id. at 538, 109 S. Ct. 2603 (Breyer,
The eavesdropping statute may not itself make receiving a tape of an illegally-intercepted conversation illegal. See id. at 525, 528, 109 S. Ct. 2603; see also
As to the evidence, the district court stated that if Representative McDermott read the cover letter or the Martins related its relevant contents to him at the time [he] received the tape, he would have possessed sufficient knowledge of the illegal transaction to have unlawfully obtained the tape . . . . On the other hand, if [Representative McDermott] learned of the contents of the letter at some later time after taking possession of the tape, . . . the case more closely resembles Bartnicki . . . . Boehner II, 332 F. Supp. 2d at 165-66. The court then reached two conclusions: the Martins’ cover letter was outside the envelope containing the tape and Representative McDermott read it when the Martins’ handed it to him, not when he later returned to his office to listen to the tape. Id. at 166-67, 169. Representative McDermott objects that both of the court‘s conclusions rested on material facts that were genuinely in dispute and that summary judgment was therefore improper. Our de novo review of the judgment, see, e.g., Branch Ministries v. Rossotti, 211 F.3d 137, 141 (D.C. Cir. 2000), supports his position.
The cover letter stated: “Enclosed in the envelope you will find a tape.” But this does not prove that the letter was outside the envelope containing the tape. The tape was in fact “enclosed” regardless where the Martins placed the letter.3 And even if the letter was outside the envelope, this does not prove that Representative McDermott read it at the time he received the tape. “[C]ommon sense” may indicate, as the district court wrote, “that one who accepts from strangers a package with a short accompanying letter is likely to read the letter . . . .” Boehner II, 332 F. Supp. 2d at 166. But at the summary judgment stage, the nonmoving party is entitled to “all justifiable inferences” from the evidence. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986); see, e.g., Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 588, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986); Salazar v. Wash. Metro. Area Transit Auth., 401 F.3d 504, 507 (D.C. Cir. 2005). Here Representative McDermott did not simply rest on “allegations or denials of the adverse party‘s pleading.”
While there was a genuine issue of material fact regarding Representative McDermott‘s knowledge of the cover letter, we nevertheless conclude that Representative Boehner was “entitled to a judgment as a matter of law.”
Because there was no genuine dispute that Representative McDermott knew the Martins had illegally intercepted the conversation, he did not lawfully obtain the tape from them. The Martins violated
Affirmed.
SENTELLE, Circuit Judge, dissenting.
In the first eight paragraphs of its opinion, the majority accurately lays out the somewhat extended history of this case. Two persons not parties to the case unlawfully intercepted communications of the appellee and gave a tape of the communications to the appellant in violation of
Our colleague also thinks it matters little that the Supreme Court distinguished Boehner I on the ground that McDermott may have participated in an illegal transaction. Dissenting Op. at 1021-22. It matters little, he writes, because the Court did the distinguishing in the factual portion of the opinion. Id. But that makes our point. As we have explained, the facts of this case are, in important respects, quite different than those in Bartnicki.
At approximately the same time that our prior decision was making its way to the Supreme Court, the Supreme Court granted certiorari in Bartnicki v. Vopper, 200 F.3d 109 (3d Cir. 1999), to answer precisely the issue before us in Boehner. See Bartnicki v. Vopper, 530 U.S. 1260, 120 S. Ct. 2716, 147 L. Ed. 2d 981 (2000) (granting certiorari). In Bartnicki, the Third Circuit had concluded that the application of
In Bartnicki, the chief negotiator for a Union Local, which was then engaged in negotiations on behalf of teachers with a local school board, used a cellular phone to call the president of the Union “and engage in a lengthy conversation about the status of the negotiations.” Id. at 518, 121 S. Ct. 1753. At one point in the conversation, referring to the school board‘s “intransigence,” she said “‘we‘re gonna have to go to their . . . homes . . . [t]o blow off their front porches . . . .‘” Id. at 518-19, 121 S. Ct. 1753. A local radio commentator, respondent in the Supreme Court, broadcast a tape of the conversation on a radio show. All parties agreed that the tape, like the tape of Boehner‘s conversation released by McDermott, was the result of an unlawful interception. The identity of the interceptor remained undisclosed throughout the litigation. The Union officers, like Boehner in the instant case, sued the publishers of the contents of the tape. In that case, the defendants included the broadcaster, the radio stations over which he made his broadcast, and the person who furnished the broadcaster with the tape, himself the head of a local citizens’ group who testified that he had obtained the tape when it was left anonymously in his mailbox. Like Boehner
On certiorari the Supreme Court, as had the Third Circuit, ruled that the statute was content neutral and subjected the statute to review under the “intermediate scrutiny” standard. 532 U.S. at 521, 526, 121 S. Ct. 1753. While that standard is less stringent than the one I would have erroneously applied to the case before us, the result was nonetheless the one that I contended should have prevailed in Boehner. That is, the Supreme Court ruled that the statute was unconstitutional as applied.
In addressing the issue, the Supreme Court adopted my formulation:
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?
Id. at 528, 121 S. Ct. 1753 (quoting Boehner, 191 F.3d at 484-85) (Sentelle, J., dissenting). In analyzing the law on that subject, the Supreme Court first noted that “[a]s a general matter, ‘state action to punish the publication of truthful information seldom can satisfy constitutional standards.‘” Id. at 527, 121 S. Ct. 1753 (quoting Smith v. Daily Mail Publ‘g Co., 443 U.S. 97, 102, 99 S. Ct. 2667, 61 L. Ed. 2d 399 (1979)). The Supreme Court then expressed its continuing belief “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.” Id. at 529, 121 S. Ct. 1753 (quoting Florida Star v. B.J.F., 491 U.S. 524, 532-33, 109 S. Ct. 2603, 105 L. Ed. 2d 443 (1989)) (alteration in original). In applying that balance to the facts before it, the Court observed that the United States, appearing in the case to defend the constitutionality of the statute, had identified “two interests served by the statute.” Id. The first of those interests was the removal of “an incentive for parties to intercept private conversations,” and the second, to “minimiz[e] the harm to persons whose conversations have been illegally intercepted.” Id. While the Court was willing to “assume that those interests adequately justify the prohibition in
The Court easily dispensed with the first justification, opining that “[t]he normal method of deterring unlawful conduct is to impose an appropriate punishment on the person who engages in it.” Id. The Court concluded, however, that “it would be quite remarkable to hold that speech by a law-abiding possessor of information can be suppressed in order to deter conduct by a non-law-abiding third party.” Id. at 529-30, 121 S. Ct. 1753. It further noted that “there is no basis for assuming that imposing sanctions” on the communicating possessor of conversations illegally taped by another “will deter the unidentified scanner from continuing to engage in surreptitious interceptions.” Id. at 531, 121 S. Ct. 1753.
However, the Court found the government‘s second justification, that is, the protection of privacy, “considerably stronger.” Id. It noted the importance of privacy of communication and the legitimacy of the argument that “fear of public disclosure of private conversations might well have a chilling effect on private speech.” Id. at 533, 121 S. Ct. 1753. Nonetheless, the Court was convinced that the enforcement of section
In the light of the Supreme Court‘s resolution of the conflict between our Boehner decision and the Third Circuit‘s decision in its Bartnicki opinion, there is no justification for us to hold otherwise on the facts before us. There is no distinction of legal let alone constitutional significance between our facts and those before the Court in Bartnicki. As the majority admits, “[t]he Bartnicki Court held that under the First Amendment,
The difference between this case and Bartnicki is plain to see. It is the difference between someone who discovers a bag containing a diamond ring on the sidewalk and someone who accepts the same bag from a thief, knowing the ring inside to have been stolen. The former has committed no offense; the latter is guilty of receiving stolen property, even if the ring was intended only as a gift. Maj. Op. at 1017 (footnotes omitted).
In fact, the difference is not plain at all. In Bartnicki the Supreme Court expressly stated:
The suit at hand involves the repeated intentional disclosure of an illegally intercepted cellular telephone conversation about a public issue. The persons who made the disclosures did not participate in the interception, but they did know—or at least had reason to know—that the interception was unlawful.
532 U.S. at 517-18, 121 S. Ct. 1753. The majority apparently would make the distinction between the two cases based on an analogy between a person who buys a diamond ring from a thief, and one who obtains a stolen diamond ring knowing it to be stolen or having at least good reason to know that it was stolen. I see no such distinction, let alone a plain one of constitutional significance. The Supreme Court underlined the lack of constitutional significance of the communicator‘s knowledge that the interception had been unlawfully conducted. It stated that “[w]e accept petitioners’ submission that the interception was intentional, and therefore unlawful, and that, at a minimum, respondents ‘had reason to know’ that it was unlawful.” Id. at 525, 121 S. Ct. 1753. The majority, apparently attempting to shore up its artificial distinction, states:
The Supreme Court has directly dispelled that notion both in Bartnicki itself and previously. The Supreme Court in Bartnicki expressly stated, “[respondents‘] access to the information on the tapes was obtained lawfully, even though the information itself was intercepted unlawfully by someone else.” 532 U.S. at 525, 121 S. Ct. 1753. In support of this proposition the court cites and quotes Florida Star, which stated “[e]ven assuming the Constitution permitted a State to proscribe receipt of information, Florida has not taken this step.” 491 U.S. at 536, 109 S. Ct. 2603 (emphasis in original). Florida still has not taken that step, nor has Congress. Therefore, the otherwise-lawful receipt of unlawfully obtained information remains in itself lawful, even where the receiver knows or has reason to know that the source has obtained the information unlawfully.
Even less convincing is the majority‘s assertion that the Court mentioned the anonymity of the interceptor in Bartnicki several times and “distinguished this case on that ground.” Maj. Op. at 1014. The so-called distinguishing of the case occurred in a footnote stating as follows:
In the Boehner case, as in this suit, a conversation over a car cell phone was intercepted, but in that case the defendant knew both who was responsible for intercepting the conversation and how they had done it. In the opinion of the majority [of the D.C. Circuit], the defendant acted unlawfully in accepting the tape in order to provide it to the media.
532 U.S. at 522 n. 5, 121 S. Ct. 1753 (quoted at Maj. Op. at 1014) (internal citations omitted). Today‘s majority hastens to say “[w]e do not want to read too much into the Court‘s ‘but’ in the first sentence, yet one must wonder why the Court drew this distinction if it meant to adopt the rule Representative McDermott urges on us.” Maj. Op. at 1014. The referenced footnote occurs in the Court‘s statement of the facts of the case and is never referenced in the legal analysis. Indeed, the footnote is subscribed to a textual sentence stating “[i]n so doing, [the Third Circuit dissenter] agreed with the majority opinion in a similar case decided by the Court of Appeals for the District of Columbia, Boehner v. McDermott, 191 F.3d 463 (D.C. Cir. 1999).” 532 U.S. at 522, 121 S. Ct. 1753. If the Supreme Court in fact thought that the “distinction” was of constitutional significance, one must wonder why it thought the different results in the two circuit cases constituted a disagreement. This wonderment must be greatly enhanced upon reading the next sentence, which reads “[w]e granted certiorari to resolve the conflict.” Id. The Supreme Court then goes on to resolve the conflict without making any further mention of any factual difference between the cases. To paraphrase the majority, one must wonder why the Court so easily dispensed with the distinction between one who knows who unlawfully intercepted a conversation and one who knows or has reason to know it was unlawfully intercepted. Indeed, the Supreme Court‘s disposition of the case lays to rest any distinction even between the one who knows and the one who has reason to know. The Court reversed and remanded, directing entry of judgment for the defense on the constitutional theory. The record before the Court did not establish whether the defendants knew or only had reason to know of the unlawful obtaining of the conversations. If there were any
The Supreme Court having decided the very issue of this case, that is, whether the United States (or Florida) can constitutionally bar the publication of information originally obtained by unlawful interception but otherwise lawfully received by the communicator, my opinion on whether that decision is correct or incorrect matters little. Nonetheless, I will venture to say that an opposite rule would be fraught with danger. Just as Representative McDermott knew that the information had been unlawfully intercepted, so did the newspapers to whom he passed the information. I see no distinction, nor has Representative Boehner suggested one, between the constitutionality of regulating communication of the contents of the tape by McDermott or by The Washington Post or The New York Times or any other media resource. For that matter, every reader of the information in the newspapers also learned that it had been obtained by unlawful intercept. Under the rule proposed by Representative Boehner, no one in the United States could communicate on this topic of public interest because of the defect in the chain of title. I do not believe the First Amendment permits this interdiction of public information either at the stage of the newspaper-reading public, of the newspaper-publishing communicators, or at the stage of Representative McDermott‘s disclosure to the news media. Lest someone draw a distinction between the First Amendment rights of the press and the First Amendment speech rights of nonprofessional communicators, I would note that one of the communicators in Bartnicki was himself a news commentator, and the Supreme Court placed no reliance on that fact.
In sum, I respectfully dissent.
Randy WEBMAN and Larry Rozen, Appellants v. FEDERAL BUREAU OF PRISONS, et al., Appellees.
No. 05-5031.
United States Court of Appeals, District of Columbia Circuit.
Argued Feb. 3, 2006. Decided March 28, 2006.
441 F.3d 1022