Supreme Question

Is a tape of an intercepted cell-phone call protected speech?

Supreme Court justices last week expressed concern that a federal wiretap prohibition used against a radio station that aired material illegally intercepted (by another unknown party) from a cell phone conversation violated First Amendment protections, keeping information from journalists and a public who had done nothing wrong.

But justices also pondered during oral arguments whether such prohibitions were necessary for "applying respect [for] basic dignity to the new world" of "wireless communications," in the words of Justice Antonin Scalia.

The government and lawyers for the labor negotiators argued that such content-neutral prohibitions are necessary to protect privacy rights and have no "censorious motive." But press-freedom advocates say such a law keeps important information from the public if it comes from questionable or even unknown sources.

The case began in 1994, when a phone call between representatives of a teachers union was somehow intercepted and taped. One of the negotiators made remarks that were taken as threatening, suggesting that "we're gonna have to go to [school board members'] homes ... to blow off front porches."

The ill-advised comments became the subject of numerous reports by Wilkes-Barre radio personality Fred Williams. Williams and his station, WILK(AM) , were sued for allegedly violating state and federal bans against wiretapping.

On the defendants' motions for summary judgment, a federal trial court in 1996 rejected their contention that imposing liability in this case was unconstitutional. The U.S. Court of Appeals for the Third Circuit disagreed and the case went to the Supreme Court.

Justice Anthony Kennedy questioned the scope of the prohibitions. "You're taking a class of speech and saying it can't be repeated by anybody."

Lawyers representing Williams said the speech should be judged only on whether it's accurate and of public interest. But lawyers supporting wiretap bans said the laws actually protect speech by protecting the "sanctity" of people's ability to speak "in a candid and unadulterated fashion."