In 2001, in Bartnicki v. Vopper, the U.S. Supreme Court ruled that a third party who receives and publishes audio recordings made in violation of electronic eavesdropping (or “interception”) statutes cannot be punished without violating the First Amendment, so long as the third party played no part in the illegal interception and the audio relates to a matter of public concern.[1] The case included an illegally intercepted mobile phone conversation between two teachers union officials regarding collective bargaining that was broadcast by a radio commentator who played no part in the interception.[2] This provided an as applied exception to Pennsylvania and federal law, the latter of which still prohibits “intentionally us[ing], or endeavor[ing] to use, the contents of any wire, oral, or electronic communication, knowing or having reason to know that the information was obtained through . . . interception . . . in violation of this subsection[.]”[3] The same or similar text also remains in the interception statutes of most states, and Bartnicki has at times served to prevent criminal prosecutions under these statutes.[4] A recent ruling from the Supreme Court of Appeals of West Virginia, Yurish v. Sinclair Broadcast Group, Inc., re-affirmed Bartnicki as a defense against civil causes of action for the same activity.[5]

Yurish came about after the mother of a special education student hid an audio recording device in her child’s hair, which recorded “ambient noise, conversations, and statements made within audible range of her hair” at school.[6] The mother then provided clips of these recordings to a number of media outlets, claiming the excerpts evinced verbal and physical bullying of students.[7] “The edited audio clip was played . . .  in numerous broadcast areas nationwide, placed upon social media, and was shared on the internet.”[8] The plaintiffs, special education instructors whose oral communications were illegally intercepted—and who subsequently resigned—sued the third parties under both West Virginia and federal law, alleging that per the statutes’ text, “[they] intentionally used and disclosed unlawfully intercepted communications of [Petitioners] while having reason to know that the information was obtained” illegally.[9] Under Bartnicki, the circuit (trial) court dismissed the complaint, and the West Virginia high court affirmed.

The Court considered three issues: “1) Whether the audio recording of events in a special education classroom is a matter of public concern; 2) Whether Petitioners’ Third-Party Complaint states a claim for relief in light of . . . Bartnicki” and, as a possible exception to the precedent, “3) Whether the publication of the recording by [the law firm] Preston and Salango, PLLC, constitutes commercial speech, which is entitled to lesser First Amendment protection[.]”[10] The majority quickly disposed of the first issue. “Speech deals with matters of public concern when it can ’be fairly considered as relating to any matter of political, social, or other concern to the community[.]’” Thus, “there can be no doubt that alleged child abuse in a public school’s special education classroom is a matter of grave public concern. What was recorded in [the child’s] classroom goes to the heart of our society’s need for transparency in its public education system.”[11] The Court also noted that the widespread publication of the recordings nationwide evinced public concern.[12]

Turning to the second factor of Bartnicki—whether the recipient played no part in the illegal interception—the Yurish majority found West Virginia’s civil statute “strikingly similar” to the Pennsylvania statute addressed in the former case.[13] The Court quoted Bartnicki extensively, which compiled myriad precedent affirming that the First Amendment reflects America’s “‘“profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open[.]”’”[14] Its protection may not be negated for innocent actors who obtain information that is of public concern even when the initial acquisition of the information is illegal, absent “an interest more substantial than is present here.”[15] The Court tersely dismissed the petitioners’ arguments to the contrary, which relied on cases that preceded Bartnicki, and ruled that the West Virginia statute is unconstitutional as applied “to innocent third parties who did not take part in the unauthorized interception or recording of the information [.]”[16]

The third and final issue the majority addressed was an argument strictly related to a law firm that received and published the recordings: that this “constituted commercial speech and, as such, is actionable because commercial speech may be regulated under the First Amendment.”[17] After acknowledging the Supreme Court’s Central Hudson test for commercial speech, a standard lower than strict or intermediate scrutiny generally implicated in First Amendment cases, the Court followed the paradigm of the U.S. Court of Appeals for the Fourth Circuit to define commercial speech and found “insufficient factual allegations . . . to support a finding that the publication of the recording by Preston and Salango, PLLC, constituted a ‘commercial speech’ exception to the holding in Bartnicki.”[18] The Court’s ruling here rebuked the petitioners for a “‘carelessly drafted or baseless pleading’” and for relying on an exhibit that was “largely illegible.”[19] In concurrence, Justice William R. Wooton took issue with this analysis, concluding that the Court should have applied Bartnicki as an affirmative defense to the pleadings instead of finding a lack of substance in the allegations. “[H]aving determined that the media reports—which Preston and Salango merely republished—are protected speech under the First Amendment, no actionable claim for their ‘use’ or ‘disclosure’ under the applicable statutes remains.”[20]

In one sense, Yurish is a simple application of Bartnicki. Federal law and Pennsylvania law were specifically limited in Bartnicki, and now West Virginia law is undeniably subject to the same as applied exception. But the ruling shows that as applied rulings from the Supreme Court can have limited effect when indistinct statutes nationwide, or even the specific statutes in question, are not amended in response.[21] West Virginia law provided a cause of action, Bartnicki notwithstanding. If an as-applied precedent must be affirmed in each jurisdiction, it raises a larger concern, as the Supreme Court has also ruled that “[t]he First Amendment does not permit laws that force speakers to . . . seek declaratory rulings before discussing the most salient . . . issues of our day.”[22] Nevertheless, absent a broad federal and state-by-state lobbying effort to implement Bartnicki, Yurish may signal a forthcoming rise in preemptive First Amendment litigation against the remaining state statutes. This is the safest option for parties who would rather not risk defensive litigation against criminal charges or civil lawsuits under the same.[23]

[1] Bartnicki v. Vopper, 532 U.S. 514 (2001).
[2] Id. at 519.
[3] 18 U.S.C. § 2511(1)(d); see also 18 Pa. Stat. and Cons. Stat. § 5725(a) (civil provision of Pennsylvania law that was at issue in Bartnicki).
[4] See, e.g., Mass. Gen. Laws ch. 272, § 99(C)(3)(b); Jean v. Massachusetts State Police, 492 F.3d 24 (1st Cir. 2007).
[5] Yurish v. Sinclair Broad. Grp., Inc., 866 S.E.2d 156 (W. Va. 2021); see W. Va. Code §§ 62-1D-3(a)(3), 62-1D-12.
[6] Yurish, 866 S.E.2d at 159.
[7] Id. at 159-60.
[8] Id. at 160.
[9] Id.
[10] Id. at 162.
[11] Id.
[12] Id.
[13] Id. at 163–64 (comparing W. Va. Code § 62-1D-12 (1987) and 18 Pa. Cons. Stat. § 5725(a)).
[14] Id. at 165 (quoting Bartnicki, 532 U.S. at 534–35 (quoting New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964))).
[15] Id. (quoting Smith v. Daily Mail Pub. Co., 443 U.S. 97, 99 (1979)).
[16] Id. at 166 n.11.
[17] Id.
[18] Id. at 167 (citing Central Hudson Gas v. Public service Comm’n of New York, 447 U.S. 557, 566 (1980); Greater Baltimore Ctr. For Pregnancy Concerns, Inc. v. Mayor & City Council of Baltimore, 879 F.3d 101, 108 (4th Cir. 2018)).
[19] Id. (quoting Par Mar v. City of Parkersburg, 398 S.E.2d 532, 536–37 (W. Va. 1990)).
[20] Id. at 169.
[21] More than two decades later, the provisions of the United States Code and Pennsylvania read the same. See 18 U.S.C. § 2511(1)(c), (d); 18 Pa. Stat. and Cons. Stat. § 5703(2), (3).
[22] Citizens United v. Fed. Election Comm’n, 558 U.S. 310, 324 (2010).
[23] The author is counsel in one such suit against the similar provision in Oregon law and recently entered stipulated dismissal after the defendant prosecutors issued policies that the statutes would not be enforced in a manner that would contradict Bartnicki. Project Veritas v. Schmidt, No. 20-CV-01435-MO, Doc. Nos. 59, 59-1, 59-2 (D. Or. 2022); see Or. Rev. Stat. § 165.540(1)(d), (e).

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