UNITED STATES COURT OF APPEALS FOR THE D.C. CIRCUIT


BOEHNER, JOHN A.

v.

MCDERMOTT, JAMES A.


98-7156a

D.C. Cir. 1999


*	*	*


Randolph, Circuit Judge: "Congress shall make no law ...  abridging the
freedom of speech, or of the press." U.S.  Const. amend. I. A federal
statute prohibits private parties  from intentionally intercepting
wire, oral and electronic com- munications. The law also forbids any
person from disclosing  the contents of such a communication, if the
person knew it  was illegally intercepted. Is it part of "the freedom
of  speech" for an individual to give a newspaper the tape  recording
of a cellular telephone call he received from the  criminals who
conducted the illegal eavesdropping? That is  the ultimate question in
this appeal from the district court's  dismissal of a complaint
brought against the individual who  transferred the tape to the New
York Times and other  newspapers. The district court ruled that, as
applied in this  case, the federal prohibition on disclosure violated
the First  Amendment because the defendant "legally obtained" the 


tape recording, and because the tape contained conversations  relating
to matters of "public concern." The United States has  intervened to
defend the constitutionality of the statute.


I


John A. Boehner, a Republican member of the House of  Representatives,
representing the Eighth District of Ohio,  brought this action against
James A. McDermott, a Demo- cratic member of the House representing
the Seventh Dis- trict of Washington. The following events are the
focus of  the complaint.1


On December 21, 1996, Representative Boehner participat- ed in a
conference call with members of the Republican Party  leadership,
including Representatives Dick Armey and Tom  DeLay, and 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 Offi- cial Conduct--the House Ethics Committee. See In
the  Matter of Representative Newt Gingrich, H.R. Rep. No. 105-1 
(1997); see also H.R. 31, 105th Cong. (1997) (adopting the  report).
Boehner was chairman of the House Republican  Conference. The
participants discussed strategy regarding  an expected Ethics
Subcommittee announcement of Ging- rich's agreement to accept a
reprimand and to pay a fine in  exchange for the committee's promise


Boehner was driving through northern Florida when he  joined the
conference call. He spoke from a cellular tele- phone in his car. John
and Alice Martin, who lived in  Florida, used a radio scanner to
eavesdrop on the conversa- tion. They tape recorded the call and later
met with Demo- cratic Representative Karen Thurman of Florida to
discuss  both the tape and the possibility of their receiving immunity
 for their illegal interception of the call.




__________

n 1 Because this matter comes before the court as an appeal of the 
district court's grant of a motion to dismiss, we take as true the 
allegations made by Boehner in his complaint. See Edmondson & 
Gallagher v. Alban Towers Tenants Ass'n, 48 F.3d 1260, 1263 (D.C. 


At Thurman's suggestion, the Martins personally delivered  the tape to
Representative McDermott on January 8, 1997.  McDermott was then the
ranking Democratic member of the  House Ethics Committee. The Martins'
cover letter ex- plained that the tape contained "a conference call
heard over  a scanner," and closed with this statement: "We understand
 that we will be granted immunity."


The next day, January 9, 1997, McDermott gave copies of  the tape to
the New York Times, the Atlanta Journal- Constitution, and Roll Call.
Because the tape revealed Ging- rich engaging in conduct that might
have violated the terms  of the agreement, it had great news value for
the three  newspapers, and each ran a story on the party leaders' 
conversation. The New York Times published its story on  the front
page of its January 10, 1997 edition and included a  verbatim
transcript of a portion of the conversation.


After the newspaper accounts appeared, the Martins pub- licly confessed
their role in recording the conversation and  admitted giving a copy
of their tape to McDermott. On  January 13, 1997, McDermott provided
his fellow Ethics  Committee members with the Martins' tape (or a copy
of it)  and resigned from the committee. The committee chairman, 
Representative Nancy Johnson, forwarded the tape to the  Justice
Department. The government prosecuted the Mar- tins for violating 18
U.S.C. ss 2511(1)(a) and 2511(4)(b)(ii).


Under s 2511(1)(a), anyone who "intentionally intercepts,  endeavors to
intercept, or procures any other person to  intercept or endeavor to
intercept, any wire, oral, or electron- ic communication" is guilty of
an offense punishable by fine or  imprisonment, or both. 18 U.S.C. ss
2511(1)(a), 2511(4).  The Martins entered guilty pleas on April 23,
1997, and were  each fined $500.


One year later Boehner brought this suit against McDer- mott, invoking
the civil liability provisions of the Electronic  Communications
Privacy Act. See 18 U.S.C. s 2520. His  complaint charged McDermott
with violating 18 U.S.C.  s 2511(1)(c):


(1) Except as otherwise specifically provided in this  chapter any
person who--


* * *


(c) intentionally discloses, or endeavors to disclose, to  any other
person the contents of any wire, oral, or  electronic communication,
knowing or having reason to  know that the information was obtained
through the  interception of a wire, oral, or electronic communica-
tion in violation of this subsection;


* * *


shall be punished as provided in subsection (4) or shall be  subject to
suit as provided in subsection (5).


Claiming that McDermott had illegally disclosed the contents  of the
conference call, knowing it to have been illegally  intercepted,
Boehner sought statutory damages of $10,000  pursuant to 18 U.S.C. s
2520(c)(2)(B).2


McDermott moved to dismiss the complaint, arguing that  s 2511(1)(c),
as applied to him, violated the free speech clause  of the First
Amendment. He claimed, and the district court  agreed, that the First
Amendment "prohibits the punishment  under any of the statutes cited
in the Complaint for the  disclosure of truthful and lawfully obtained
information on a 




__________

n 2 In a separate count, Boehner brought a claim under Fla. Stat.  Ann.
s 934.03(1)(c)--which, in relevant respects, is identical to 18 
U.S.C. s 2511(1)(c). Because our analysis of the two statutes will  be
the same with respect to McDermott's First Amendment claim,  whenever
this opinion refers to the federal statute, we intend to  include the
state statute as well.


In his motion to dismiss, McDermott also argued that the Florida 
statute could not apply to his conduct because his alleged actions 
occurred outside the state's borders. Because the district court 
dismissed the complaint on other grounds, it did not address this 
argument. See Boehner v. McDermott, Civ. No. 98-594 (TFH),  1998 WL
436897, at *3 n.2 (D.D.C. July 28, 1998).


matter of substantial public concern." Motion to Dismiss at  1.


II


A


In mounting his First Amendment defense, McDermott  obviously thinks he
engaged in speech, speech for which he  would suffer liability in
damages if s 2511(1)(c) were applied  to him. What speech? A simple
question, but crucial. Too  bad McDermott devotes only one sentence of
his brief to the  answer: "Because the disclosure of information is
unquestion- ably speech, these provisions [of federal and state law]
impose  a naked prohibition on speech." Brief for Appellee at 11.  But
those who expose private activity to public gaze are not  necessarily
engaging in speech, let alone "the freedom of  speech." Otherwise, one
might as well say the Martins were  exercising their right of free
speech when they personally  handed over the product of their crime to
McDermott; or  that they would have been engaging in free speech if
they had  surreptitiously dropped the tape on his doorstep, or mailed
it  to him anonymously in a plain wrapper. Not even McDer- mott goes
so far. See, e.g., Oral Arg. Tr. at 41, 43.3 If the  Martins were not
exercising their right of free speech, as  McDermott seems to concede,
it is difficult to see why  McDermott was exercising his freedom of
speech when he  gave copies of their tape to the newspapers.


At one point in his brief, McDermott asserts that "[t]his is  core
political speech, and lies at the very heart of the First  Amendment."
Brief for Appellee at 45. His assertion, how- ever, deals with the
contents of the tape. The tape does 




__________

n 3 At oral argument, McDermott conceded that, on the facts  alleged in
the complaint, his delivery of the tapes to the newspapers  brought
him within s 2511(1)(c)'s prohibition against anyone who 
"intentionally discloses, or endeavors to disclose" the contents of an
 illegally intercepted communication. Oral Arg. Tr. at 38-43.  Whether
in this case the actual disclosure occurred only after the  newspaper
took possession of the tape and played it is therefore of  no


indeed contain speech about political matters. But the  speech is not
McDermott's and s 2511(1)(c) does not render  him liable for anything
anyone said on the recording. As to  McDermott's speech, it is safe to
assume that he said some- thing when he arranged for delivery of the
tapes to the  newspapers. The New York Times in fact attributed
several  statements to him:4 a "Democratic Congressman hostile to  Mr.
Gingrich ... 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"; the Congressman
"quoted them as saying it had  been recorded off a radio scanner ...
about 9:45 A.M. on  Dec. 21." In making these remarks McDermott was
un- doubtedly engaging in speech. But neither these statements,  nor
any other statements he may have made to the newspa- pers in
connection with his delivery of the tape, are the basis  of the
complaint. McDermott's liability under s 2511(1)(c)  rests on the
truth of two allegations: that he "caused a copy  of the tape" to be
given to the newspapers; and that he "did  so intentionally and with
knowledge and reason to know that  the recorded phone conversation had
been illegally intercept- ed (as the cover letter on its face
disclosed)." Complaint p 20.  Although the circumstances of
McDermott's transactions with  the newspapers, including who said what
to whom, may  become evidence at trial, it is his conduct in
delivering the  tape that gives rise to his potential liability under 
s 2511(1)(c). McDermott's behavior in turning over the tapes 
doubtless conveyed a message, expressing something about  him. All


"[E]ven on the assumption that there was [some] communi- cative element
in" McDermott's conduct, the Supreme Court  has held that "when
'speech' and 'nonspeech' elements are  combined in the same course of
conduct, a sufficiently impor- tant governmental interest in
regulating the nonspeech ele-




__________

n 4 We assume McDermott was the unnamed Congressman men- tioned in the
Times article. See Edmondson & Gallagher, 48 F.3d  at 1263.


ment can justify incidental limitations on First Amendment  freedoms."
United States v. O'Brien, 391 U.S. 367, 376  (1968). The O'Brien
framework is the proper mode of First  Amendment analysis in this
case. McDermott's challenge is  only to the statute as it applies to
his delivery of the tape to  newspapers. Whether a different analysis
would govern if,  for instance, McDermott violated s 2511(1)(c) by
reading a  transcript of the tape in a news conference, is therefore a
 question not presented here. Nor should we be concerned  with whether
s 2511(1)(c) would be constitutional as applied  to the newspapers who
published the initial stories about the  illegally-intercepted
conference call. The focus must be on  McDermott's activity and on his
activity alone. See Hoffman  Estates v. Flipside, Hoffman Estates,
Inc., 455 U.S. 489, 495  (1982); Parker v. Levy, 417 U.S. 733, 756
(1974); United  States v. Raines, 362 U.S. 17, 21-22 (1960); contrast
Broad- rick v. Oklahoma, 413 U.S. 601, 615 (1973).


B


In its modern iteration, the O'Brien analysis applies to  statutes
containing generally applicable, content-neutral pro- hibitions on
conduct that create incidental burdens on speech.  See Turner Broad.
Sys., Inc. v. FCC, 512 U.S. 622, 642, 662  (1994); Ward v. Rock
Against Racism, 491 U.S. 781, 791  (1989); Clark v. Community for
Creative Non-Violence, 468  U.S. 288, 293 (1984). Section 2511(1)(c)
is a statute fitting  that description. It is one of several
provisions constituting  "a comprehensive statutory scheme dedicated
to preserving  personal privacy by sharply limiting the circumstances
under  which surveillance may be undertaken and its fruits dis-
closed." Lam Lek Chong v. DEA, 929 F.2d 729, 733 (D.C.  Cir. 1991). It
prohibits the disclosure of all illegally inter- cepted
communications, without regard to the substance of  the communication
or the identity of the person who does the  disclosing. It reveals no
governmental interest in distin- guishing between types of speech
based on content. It  neither favors nor disfavors any particular
viewpoint. To the  extent that the particular type of conduct s
2511(1)(c) ad- dresses--"disclosure"--may entail constitutionally


speech, the statute regulates it without reference to content.  See Lam
Lek Chong, 929 F.2d at 733; see also Turner  Broad., 512 U.S. at
642-43; R.A.V. v. St. Paul, 505 U.S. 377,  386 (1992); Time Warner
Entertainment Co. v. FCC, 93 F.3d  957, 969 (D.C. Cir. 1996) (per


The oft-repeated test laid down in O'Brien is as follows:


[A] government regulation is sufficiently justified if it is  within
the constitutional power of the Government; if it  furthers an
important or substantial governmental inter- est; if the governmental
interest is unrelated to the  suppression of free expression; and if
the incidental  restriction on alleged First Amendment freedoms is no 
greater than is essential to the furtherance of that inter- est.


391 U.S. at 377.


Here, the "substantial governmental interest" "unrelated to  the
suppression of free expression" is evident. Section  2511(1)(c),
rather than impinging on speech, as McDermott  supposes, promotes the
freedom of speech. Eavesdroppers  destroy the privacy of
conversations. The greater the threat  of intrusion, the greater the
inhibition on candid exchanges.  Interception itself is damaging
enough. But the damage to  free speech is all the more severe when
illegally intercepted  communications may be distributed with
impunity.5 This is  why s 2511 does not merely prohibit the
unauthorized inter- ception of wire, oral and electronic
communications. It is  why the federal statute also forbids the use
and disclosure of  the illegally intercepted communication.6 It is




__________

n 5 See Gelbard v. United States, 408 U.S. 41, 52 (1972): "to compel 
the testimony of these witnesses compounds the statutorily pro-
scribed invasion of their privacy by adding to the injury of the 
interception the insult of compelled disclosure. And, of course, 
Title III makes illegal not only unauthorized interceptions, but also 
the disclosure and use of information obtained through such inter-
ceptions. 18 U.S.C. s 2511(1); see 18 U.S.C. s 2520."


6 In addition to Florida, forty-four other states and the District of 
Columbia prohibit not only the interception of electronic communi`


---------


Note 6--Continued  cations, but also the disclosure of those
communications by persons  not acting under color of law. Most of
these statutes mirror the  wording of 18 U.S.C. s 2511. See Ala. Code
ss 13A-11-31,  13A-11-35 (1994); Alaska Stat. ss 42.20.300 to
42.20.330 (Michie  1989 & Supp. 1995); Ariz. Rev. Stat. Ann. ss
13-3005, 13-3006  (West 1989) (limiting criminal disclosure liability
to telecommunica- tions employees and those acting in concert with
them); Cal. Penal  Code ss 631, 632 (West 1999); Colo. Rev. Stat. s
18-9-303 (1986 &  Supp. 1995); Conn. Gen. Stat. ss 53a-187, 53a-188,
53a-189, 54-41r  (1994) (allowing civil recovery from any unauthorized
discloser, but  limiting criminal penalties to telecommunications
employees and  those acting in concert with them); Del. Code Ann. tit.
11, s 1336  (1996); D.C. Code Ann. ss 23-542, 23-554 (1996); Ga. Code
Ann.  ss 16-11-62, 16-11-66.1 (1994); Haw. Rev. Stat. s 803-42 (1995);
 Idaho Code s 18-6702 (1996); 720 Ill. Comp. Stat. Ann. 5/14-2 
(1993); Ind. Code Ann. s 35-45-2-4 (West 1994) (limiting criminal 
disclosure liability to telecommunications employees); Iowa Code  ss
808B.2, 808B.8 (1994), as amended by Act of Apr. 28, 1999, 1999  Iowa
Legis. Serv. S.F. 309 (West); Kan. Stat. Ann. s 21-4002  (1996); Ky.
Rev. Stat. Ann. ss 526.020, 526.060 (Michie 1998); La.  Rev. Stat.
Ann. ss 15:1303, 15:1312 (West 1992); Me. Rev. Stat.  Ann. tit. 15, ss
710, 711 (West 1998); Md. Code Ann., Cts. & Jud.  Proc. s 10-402
(1998); Mass. Gen. Laws Ann. ch. 272, s 99(c) (West  1990); Mich.
Comp. Laws Ann. ss 750.539c, 750.539e, 750.539h (West  1991 & Supp.
1995); Minn. Stat. Ann. ss 626A.02, 626A.13 (West  1998); Mo. Rev.
Stat. ss 542.402, 542.418 (1996); Mont. Code Ann.  s 45-8-10 213
(1997); Neb. Rev. Stat. ss 86-702, 86-707.02 (1995);  Nev. Rev. Stat.
ss 200.620, 200.630, 200.650, 200.690 (1994); N.H.  Rev. Stat. Ann. s
570-A:2 (1995); N.J. Stat. Ann. ss 2A-156A-3,  2A-156A-24 (West 1985 &
Supp. 1999); N.M. Stat. Ann.  ss 30-12-14 1, 30-12-11 (Michie 1994);
N.Y. Penal Law ss 250.05,  250.25 (McKinney 1989 & Supp. 1995); N.C.
Stat. Ann. s 15A-287  (1996); N.D. Cent. Code s 12.1-15-02 (1994);
Ohio Rev. Code Ann.  ss 2933.52, 2933.65 (Banks-Baldwin 1998)
(prohibiting interception  and use, authorizing civil damages for
interception, disclosure, and  use); Okla. Stat. Ann. tit. 13, ss
176.2 to 176.5 (West 1994); Or.  Rev. Stat. ss 165.540, 165.543
(1998); 18 Pa. Cons. Stat. Ann.  ss 5703, 5725 (West 1999); R.I. Gen.
Laws s 11-35-21 (1998);  Tenn. Code Ann. ss 39-13-601 to 39-13-603
(1994); Tex. Penal  Code Ann. ss 16.02, 16.05 (West 1994); Utah Code
Ann.  ss 77-23a-4, 77-23a-11 (1994); Va. Code Ann. ss 19.2-62, 19.2-69


circumstances, the law also punishes disclosure even if the 
interception was itself legal, as when a law enforcement  official has
conducted a wiretap pursuant to a court order.  See 18 U.S.C. s


In all of this it is well to remember that although the  "essential
thrust of the First Amendment is to prohibit  improper restraints on
the voluntary public expression of  ideas," there is "a concomitant
freedom not to speak publicly,  which serves the same ultimate end as
freedom of speech in  its affirmative aspect." Harper & Row,
Publishers, Inc. v.  Nation Enters., 471 U.S. 539, 559 (1985) (quoting
with ap- proval Estate of Hemingway v. Random House, Inc., 244  N.E.2d
250, 255 (N.Y. 1968)); see also Halperin v. Kissinger,  606 F.2d 1192,
1199 (D.C. Cir. 1979), aff'd, 452 U.S. 713 (1981)  (per curiam). The
freedom not to speak publicly, to speak  only privately, is violated
whenever an illegally intercepted  conversation is revealed, and it is
violated even if the person  who does the revealing is not the person
who did the inter- cepting.7 For his part, McDermott correctly
concedes that  the Martins could have been punished not only for
intercept- ing the conference call, but also for giving the tape to
him.  See Oral Arg. Tr. at 41, 43, 53. But as we have indicated, he 
offers no good explanation why, if he had a First Amendment  right to
disclose the call, the Martins did not. Comparing the  Martins'
conduct with McDermott's, one might rank the 




__________

n


Stat. Ann. s 968.31 (West 1985 & Supp. 1999); Wyo. Stat.  ss 7-3-602,
7-3-609 (1987); see also Russell G. Donaldson, Annota- tion,
Construction and application of state statutes authorizing  civil
cause of action by person whose wire or oral communication  is
intercepted, disclosed, or used in violation of statutes, 33 
A.L.R.4th 506 (1998). Arkansas does not separately prohibit the 
disclosure of intercepted communications, but its laws achieve a 
similar effect by making it a crime "to record or possess a recording 
of such communication." Ark. Code Ann. s 5-60-120(a) (Michie  1994).


7 The link between the Martins and McDermott was direct.  Whether
someone further down the chain would have a defense  similar to that
suggested by Nardone v. United States, 308 U.S.  338, 341 (1939)--that
the taint of illegality was sufficiently dissipat- ed--is something we
do not decide.


Martins as more culpable. Yet in terms of damage to the  privacy of
conversations and to the freedom of speech,  McDermott's alleged
actions had a far more devastating  impact.


There are other substantial government interests underly- ing s
2511(1)(c), interests best illustrated through a hypothet- ical.
Suppose Boehner had tape recorded his conference  call.8 Suppose as
well that the Martins later break into  Boehner's office, steal the
tape and give it to McDermott, who  then acts exactly as he is alleged
to have acted here: he  accepts the tape from the Martins and delivers
it to the press.  In the hypothetical, there is no doubt that if
McDermott knew  how the Martins acquired the tape, he could be
prosecuted  for receiving stolen property. See D.C. Code Ann. s
22-3832.  With respect to McDermott, it is hard to see any practical 
constitutional distinction between the hypothetical and the  facts
alleged here. In the one case the Martins steal the  tape; in the
other, they illegally "seize" the conversation.  See Katz v. United
States, 389 U.S. 347 (1967). In both  instances, McDermott knows of
the illegality. The contents  of both tapes are identical; what
McDermott does with the  tape is the same; and in both cases McDermott
knows the  Martins' are giving him something they acquired illegally. 
Receiving stolen property is punished in order to remove the 
incentive to steal, to dry up the market for stolen goods. See  Wayne
R. LaFave & Austin W. Scott, Jr., Criminal Law s 93,  at 692 (1972).
For a similar reason--that is, "to dry up the  market"--states have
made distribution and possession of  child pornography criminal
offenses. Osborne v. Ohio, 495  U.S. 103, 110 (1990); New York v.
Ferber, 458 U.S. 747, 760  (1982). And for the same reason Congress
has forbidden the  disclosure of the contents of illegally intercepted
communica- tions. The district court was quite right in thinking that 
without s 2511(1)(c)'s prohibition on disclosure, the govern- ment
would have "no means to prevent the disclosure of  private




__________

n 8 Federal law does not prohibit someone who is a party to a 
conversation from taping it. See 18 U.S.C. s 2511(2)(d).


literally launder illegally intercepted information" and there  would
be "almost no force to deter exposure of any intercept- ed secret."
Boehner v. McDermott, Civ. No. 98-594 (TFH),  1998 WL 436897, at *4
(D.D.C. July 28, 1998).


What we have just written also explains why whatever  incidental
restriction on speech s 2511(1)(c) imposes, it is "no  greater than is
essential to the furtherance of that interest"-- the final
consideration in the O'Brien formulation. 391 U.S.  at 377. Unless
disclosure is prohibited, there will be an  incentive for illegal
interceptions; and unless disclosure is  prohibited, the damage caused
by an illegal interception will  be compounded. It is not enough to
prohibit disclosure only  by those who conduct the unlawful
eavesdropping. One  would not expect them to reveal publicly the
contents of the  communication; if they did so they would risk
incriminating  themselves. It was therefore "essential" for Congress
to  impose upon third parties, that is, upon those not responsible 


C


As against the foregoing analysis, McDermott maintains  that he
"lawfully obtained" the tape recording from the  Martins because he
committed no offense in accepting it; that  the tape contained
truthful information of public concern; and  that the First Amendment
therefore prohibits holding him  liable for handing the tape (or
copies of it) over to the  newspapers.9 He believes the following




__________

n 9 It appears that McDermott, or someone acting for him, made  copies
of the tape. No one disputes that the Martins gave but one  copy of
the tape to McDermott. The New York Times, in its article  of January
10, 1997, reported that it had received a tape recording  of the
conference call from a "Democratic Congressman" who did  not wish to
be identified. The complaint alleges that McDermott  also gave
audiotapes to two other newspapers. After the Martins  held a press
conference on January 13, 1997, McDermott delivered  still another
copy of the tape to the House Ethics Committee, which  turned the tape
over to the Justice Department. McDermott may  also have made a
transcript of the call. According to the New York  Times, in its
article of January 10, 1997, "a transcript of [the 


Amendment principle" controls: "If a newspaper lawfully  obtains
truthful information about a matter of public signifi- cance, then
[the government] may not constitutionally punish  publication of the
information, absent a need to further a  state interest of the highest
order." Florida Star v. B.J.F.,  491 U.S. 524, 533 (1989), quoting
Smith v. Daily Mail Publ'g  Co., 443 U.S. 97, 103 (1979).10


The district court, believing that Florida Star left it no  other
choice, reluctantly adopted McDermott's line of reason- ing.
Reluctantly because the court thought these decisions  had forced it
into an "illogical" interpretation of the First  Amendment. Boehner,
1998 WL 436897, at *4. McDermott's  theory was, the court thought, "a
slippery one, as it not only  defends, but even encourages, the
circumnavigation of wire- tap statutes, which are designed to prevent
the disclosure of  private conversations." Id. at *3. By accepting
this theory,  the district court had rendered the government powerless
"to  prevent disclosure of private information, because criminals 
like the Martins can literally launder illegally intercepted 


There are many reasons for disagreeing with McDermott  and with the
district court about the significance of Florida  Star as applied to
this case. But first the facts of Florida  Star. A Florida statute
made it unlawful to publish the name  of a rape victim "in any
instrument of mass communication."  491 U.S. at 526 n.1. The Sheriff's
Department in Duval  County, Florida, mistakenly included a rape




__________

n conference call] was made available by" the same unidentified 
Congressman who supplied the tape.


10 The quotation does not fit precisely. The case before us is a  civil
suit for damages, not a criminal prosecution to impose punish- ment.
Boehner makes nothing of this distinction and neither will  we. See
Cohen v. Cowles Media Co., 501 U.S. 663, 670 (1991).  Also, the
complaint alleges that McDermott disclosed the conversa- tion, not
that he published it. Publication of course will always  amount to a
disclosure, but not every disclosure may amount to the  sort of
publication the Supreme Court had in mind.


its publicly available police blotter. A Florida Star reporter  took
down the victim's name, and the newspaper published it.  The victim
sued the Sheriff's Department and the newspaper  for violating the
statute. Before trial, the Sheriff's Depart- ment settled with the
plaintiff. A jury awarded damages  against the Florida Star and a
state appellate court affirmed.


The Supreme Court sustained the newspaper's First  Amendment attack on
the statute. The Court believed the  newspaper had "lawfully obtained"
the rape victim's name  because the government--in the form of the
Sheriff's Depart- ment--had made this information available. See id.
at 534- 36. The Court then explained why there was no "need" for  the
state to forbid the mass media from publishing the  victim's name. The
government had provided the informa- tion to the media and thus could
more effectively have  "policed itself" to prevent dissemination of
the information.  Id. at 538. The statute contained no scienter
requirement;  and the press was entitled to assume the government
"consid- ered dissemination lawful," id. at 539, because the
information  stemmed from a "government news release," id. at 538. And
 last, the statute was underinclusive, prohibiting publication  only
in "instruments of mass communication," while not pro- hibiting
revelation of the victim's identity through other  means. Id. at


A comparison of Florida Star with this case reveals far  more
significant differences than similarities. And it is criti- cal to
recognize each of those differences. The Supreme  Court did not intend
to declare a universal First Amendment  principle in Florida Star. The
several phrases McDermott  has fastened upon are tempered, not only by
other language  in the opinion, but also by the context in which they
were  written. Throughout, the Court stresses that it meant its 
decision to be narrow. The state of the law in this area is  "somewhat
uncharted," id. at 531 n.5; the "future may bring  scenarios which
prudence counsels our not resolving anticipa- torily," id. at 532; the
Court is following the practice of  resolving "this conflict only as
it arose in a discrete factual  context," id. at 531; "[o]ur holding
today is limited," id. at  541.


Let us now compare the statute in Florida Star with  s 2511(1)(c). One
could say, as McDermott seems to, that  both provisions are alike in
that both prohibit the "disclosure"  of "information." But when we dig
more deeply many critical  differences appear. To ignore them would be
to convert  Florida Star from a narrow decision into an expansive one.
 Consider first exactly what the statutes forbid. The Florida  statute
prohibited the act of printing, publishing or broadcast- ing "in any
instrument of mass communication." 491 U.S. at  526 n.1 (quoting Fla.
Stat. s 794.03 (1987)). The federal law  is not, however, limited to
those means of disclosure and it is  not aimed at the press. Anyone
who discloses, or endeavors  to disclose, illegally intercepted
communications knowing of  the illegality violates s 2511(1)(c). The
objectives of the laws  are different too. The Florida statute sought
to protect the  privacy of rape victims. See 491 U.S. at 537. The
federal law  seeks to protect the privacy of communications. See,
e.g.,  Gelbard v. United States, 408 U.S. 41, 51-52 (1972). In that 
respect, the federal law--unlike the Florida statute--ad- vances First
Amendment interests for reasons already men- tioned. See supra pp.
9-12. The Florida statute dealt with  information in the government's
possession; release of the  information was therefore in the
government's control. See  491 U.S. at 534-36, 538-39. The federal law
deals with  communications between private persons, the content of 
which will not be known to the government, unless it has  complied
with the rigorous procedures needed to obtain a  court order allowing
electronic surveillance for law enforce- ment purposes. See 18 U.S.C.
s 2518; see also id.  ss 2511(2)(b)-(f), 2515-2517, 2519. The state
law in Florida  Star (and in Daily Mail) "defined the content of
publications  that would trigger liability." Cohen v. Cowles Media
Co., 501  U.S. 663, 670-71 (1991). Here, the federal prohibition on 
disclosure is not dependent on the content of the communica- tion. And
of greatest importance, s 2511(1)(c) prohibits dis- closure of the
communication only if the original interception  was itself illegal
and only if the person charged with unlawful- ly disclosing its
contents knew of the illegality. See 18 U.S.C.  s 2511(1)(c). In


requirement, see Florida Star, 491 U.S. at 539, and the  government
lawfully acquired the information--the victim's  identity--while
investigating a crime.


This last distinction must be underscored because the  Supreme Court in
Florida Star attached such great signifi- cance to it. After citing
cases for the proposition that when  "information is entrusted to the
government, a less drastic  means than punishing truthful publication
almost always ex- ists for guarding against the dissemination of
private facts,"  the Court dropped a footnote:


The Daily Mail principle does not settle the issue wheth- er, in cases
where information has been acquired unlaw- fully by a newspaper or by
a source, government may  ever punish not only the unlawful
acquisition, but the  ensuing publication as well. This issue was
raised but  not definitively resolved in New York Times Co. v. Unit-
ed States, 403 U.S. 713 (1971), and reserved in Land- mark
Communications, 435 U.S. [829,] 837 [(1978)]. We  have no occasion to


491 U.S. at 535 n.8.


To understand this footnote correctly one must remember  that in the
newspaper business, sources provide information,  but newspapers, not
sources, are the publishers. Suppose a  "source" breaks into an
office, steals documents, gives them  to a newspaper and the
newspaper, knowing the documents  were stolen, publishes them in
violation of a state or federal  law. We read footnote 8 to mean that
the "Daily Mail  principle" would not determine if the newspaper had a
First  Amendment right to publish the stolen documents. What  takes
this hypothetical case out of Daily Mail and Florida  Star? The fact
that the documents are the product of a  crime, committed by a
"source." McDermott thinks he  stands in the shoes of the "newspaper"
in Florida Star. He  treats a newspaper's "publication" as the
equivalent of his  disclosure. Given his press analogy, the Martins
played the  role of McDermott's "source." It follows from footnote 8
that  the "Daily Mail principle" and the decision in Florida Star  do


McDermott's effort to explain away the Florida Star foot- note is
thoroughly unconvincing. He proposes that footnote 8  "simply reserved
the question whether a person who discloses  unlawfully acquired
information is subject to punishment only  for the unlawful
acquisition or for both the unlawful acquisi- tion and the
disclosure." Brief for Appellee at 31. In other  words, all the Court
left open is the question whether the  Martins could have been
punished not only for intercepting  the call, in violation of s
2511(1)(a), but also for giving the  tape to McDermott, in violation
of s 2511(1)(c). This cannot  be correct. For one thing, the Court did
not have before it a  case in which the published information--the
rape victim's  name--had been "acquired unlawfully ... by a source";
the  Sheriff's Department was the newspaper's "source" and it 
acquired the victim's name both lawfully and with her con- sent. Also,
given the facts of Florida Star, and particularly  in light of the
Court's resolve to confine the opinion to the  "discrete factual
context" of the case, 491 U.S. at 531, the  Court necessarily did not
decide the question before us. For  another thing, McDermott's reading
of the footnote could  make sense if and only if a "source" first
illegally obtained  information and then did the "ensuing
publication." In the  context of the footnote, this is farfetched
indeed. Again, the  newspapers' sources do not publish; the newspapers
do. The  point of the footnote is that regardless whether the
illegality  is committed by a newspaper's reporter or by a source, if
the  newspaper publishes the illegally obtained information, the 
First Amendment may not shield it from punishment. The  Court came
close to holding as much in Branzburg v. Hayes,  408 U.S. 665, 691-92
(1972): no matter how great "the  interest in securing the news," the
First Amendment "does  not reach so far as to override the interest of
the public in  ensuring that neither reporter nor source is invading


Furthermore, if McDermott were right about the footnote,  there is no
explaining the Court's citation to the "Pentagon  Papers" case--New
York Times Co. v. United States, 403  U.S. 713 (1971). At the time of
that decision, everyone knew 


that a "source" (later identified as Daniel Ellsberg, a re- searcher at
the RAND Corporation on contract with the  Department of Defense) had
illegally obtained copies of clas- sified Defense Department
documents. See generally David  Rudenstine, The Day the Presses
Stopped: A History of the  Pentagon Papers Case 33-65 (1996).11 The
issue before the  Court was whether enjoining the New York Times and
the  Washington Post from publishing the material amounted to a  prior
restraint in violation of the First Amendment. As the  Florida Star
footnote stated, the Court left unresolved the  question whether the
Post and the Times could be punished  for later publishing the
documents Ellsberg had illegally  acquired.12 In short, McDermott's




__________

n 11 The United States later prosecuted Ellsberg for violating the 
Federal Espionage Act and for theft of government property. See 
generally Rudenstine, supra, at 341-43. The district judge barred  the
prosecution after the government revealed that the "White  House
plumbers" had burglarized Ellsberg's psychiatrists' office  and
intercepted telephone conversations, in violation of the Consti-
tution. See id.; see also Russo v. Byrne, 409 U.S. 1219 (1972) 
(Douglas, Circuit J.) (issuing a stay against Ellsberg's prosecution);
 United States v. Russo & Ellsberg, Crim. No. 9373 (WNB) (C.D.  Cal.
May 11, 1973) (dismissing the prosecution because of govern- ment
misconduct). Ellsberg and others later sought civil damages  from the
interceptors under the same provision Boehner now  invokes against
McDermott. See, e.g., Ellsberg v. Mitchell, 807  F.2d 204 (D.C. Cir.
1986); Smith v. Nixon, 807 F.2d 197 (D.C. Cir.  1986); Halperin v.
Kissinger, 807 F.2d 180 (D.C. Cir. 1986).


12 Justice White, joined by Justice Stewart, put it this way in his 
concurring opinion:


The Criminal Code contains numerous provisions potentially  relevant to
these cases.... If any of the material here at  issue is of [the kind
described in 18 U.S.C. s 797 or s 798], the  newspapers are presumably
now on full notice of the position of  the United States and must face
the consequences if they  publish. I would have no difficulty in
sustaining convictions  under these sections on facts that would not
justify the inter- vention of equity and the imposition of a prior
restraint.


403 U.S. at 735-37 (White, J., concurring) (footnotes omitted); see 
also id. at 730 (Stewart, J., joined by White, J., concurring) (noting


Florida Star is flatly contradicted by the Court's citation to  the
Pentagon Papers case, by the Court's distinction between  a source and
a newspaper, and by the Court's expressed  intent to confine its
Florida Star opinion strictly to the facts  of the case. Given
footnote 8, McDermott is not correct in  arguing that the First
Amendment precludes punishing an  individual for disclosing
information illegally transmitted to  him, so long as the individual
violated no law in receiving the  information. Brief for Appellee at




__________

n that "several [criminal laws] are of very colorable relevance to the 
apparent circumstances in these cases" and acknowledging the 
possibility of future criminal or civil proceedings); id. at 744-45 
(Marshall, J., concurring) (noting that "equity will not enjoin the 
commission of a crime" and identifying two statutes under which "a 
good-faith prosecution could have been instituted"); id. at 752 
(Burger, C.J., dissenting) (expressly agreeing with Justice White's 
comments concerning "penal sanctions"); id. at 759 (Blackmun, J., 
dissenting) (expressing "substantial accord" with Justice White's 
comments concerning criminal sanctions). In dissent, Justice Har- lan,
joined by Chief Justice Burger and Justice Blackmun, listed  among
"questions [which] should have been faced"--"Whether the  newspapers
are entitled to retain and use the documents notwith- standing the
seemingly uncontested facts that the documents, or the  originals of
which they are duplicates, were purloined from the  Government's
possession and that the newspapers received them  with knowledge that
they had been feloniously acquired." Id. at  753-54 (Harlan, J.,
dissenting) (citing Liberty Lobby, Inc. v. Pear- son, 390 F.2d 489
(D.C. Cir. 1967, amended 1968) (holding that  plaintiffs were not


13 McDermott also relies on the following passage in Florida Star:


[U]nder Florida law, police reports which reveal the identity of  the
victim of a sexual offense are not among the matters of  "public
record" which the public, by law, is entitled to in- spect.... But the
fact that state officials are not required to  disclose such reports
does not make it unlawful for a newspa- per to receive them when
furnished by the government. Nor  does the fact that the Department
apparently failed to fulfill its  obligation under [the Florida
statute] not to "cause or allow to  be ... published" the name of a
sexual offense victim make the  newspaper's ensuing receipt of this
information unlawful. Even 


McDermott also misreads Landmark Communications,  Inc. v. Virginia, 435
U.S. 829, 837 (1978), which the Florida  Star footnote also cited. In
that case a newspaper was  indicted for publishing an article about a
pending investiga- tion of a state judge.14 McDermott is right in
describing  what Landmark did not decide. The Court wrote: "We are 
not here concerned with the possible applicability of the  statute to
one who secures the information by illegal means  and thereafter
divulges it." Id. But McDermott is wrong in  describing what Landmark
did decide. The Court did not, as  he contends, determine that a
newspaper has a First Amend- ment right to publish illegally acquired
information. The  record in Landmark contained no evidence regarding
who  supplied the newspaper with the information or how they  obtained
it. See Landmark Communications, Inc. v. Com- monwealth, 233 S.E.2d
120, 123 n.4 (Va. 1977) ("The record is  silent, however, concerning
the manner in which Landmark  secured the information."). The Court
therefore decided only  that "the Commonwealth's interests advanced by
the imposi- tion of criminal sanctions [were] insufficient to justify
the  actual and potential encroachments on freedom of speech and 




__________

n assuming the Constitution permitted a State to proscribe re- ceipt of
information, Florida has not taken this step.


491 U.S. at 536. It appears to us that the Court intended to confine 
these remarks to information "furnished by the government." Id.  The
quoted passage follows the Court's point, made in the previous 
paragraph, that "depriving protection to those who rely on the 
government's implied representations of the lawfulness of dissemi-
nation, would force upon the media the onerous obligation of sifting 
through government press releases, reports, and pronouncements  to
prune out material arguably unlawful for publication." Id.


14 The Virginia Constitution commanded that proceedings before  the
state Judicial Inquiry and Review Commission "shall be confi-
dential." Va. Const. art. 6, s 10. The statutes implementing this 
provision made it a misdemeanor for "any person" to "divulge 
information" about those proceedings, Va. Code ss 2.1-37.11, 
2.1-37.12 (1973), which Virginia's highest court construed to include 
newspaper publication. See Landmark, 435 U.S. at 837 n.9.


of the press which follow therefrom." Landmark, 435 U.S. at  838.15


Footnote 8 of Florida Star, and the marked contrast  between s
2511(1)(c) and the Florida rape victim statute, are  enough to
indicate that Florida Star cannot control this case.  But this
discussion should not end without mention of an  additional basis for
rejecting the district court's analysis.  The Supreme Court said in
Florida Star that its application  of the Daily Mail principle rested
on three considerations.  Not one of them is present here.


The Court first pointed out that "when information is  entrusted to the
government, a less drastic means than  punishing truthful publication
almost always exists for guard- ing against the dissemination of
private facts." 491 U.S. at  534. In this case, the content of the
conference call was not  information "entrusted to the government." It
was instead-- in the Supreme Court's words--"sensitive information" in
 "private hands" and, therefore, if the government forbids "its 
nonconsensual acquisition," as it has in s 2511(1)(a), "the 
publication of any information so acquired" is "outside the  Daily
Mail principle." Id. "The right to speak and publish  does not," in
other words, "carry with it the unrestrained  right to gather
information." Zemel v. Rusk, 381 U.S. 1, 17  (1965).


"A second consideration undergirding the Daily Mail prin- ciple is the
fact that punishing the press for its dissemination  of information
which is already publicly available is relatively  unlikely to advance
the interests in the service of which the  State seeks to act." Id. at
535.16 That consideration too is 




__________

n 15 The Court flatly rejected the argument that "truthful reporting 
about public officials in connection with their public duties is
always  insulated from the imposition of criminal sanctions by the
First  Amendment." Id.


16 The Florida Star Court described the Daily Mail formulation  as a
"synthesis of prior cases involving attempts to punish truthful 
publication." 491 U.S. at 533. In two of those cases--Oklahoma 
Publishing Co. v. Oklahoma County District Court, 430 U.S. 308 
(1977), and Cox Broadcasting Corp. v. Cohn, 420 U.S. 469 (1975)--


absent here. The conference call was not "already publicly  available"
when McDermott gave the tape to the newspapers.  Apart from the
participants (and those they informed), the  contents of the call were
then known only to a select few,  including the Martins and McDermott.
And they--the Mar- tins and McDermott--gained their knowledge of the
call only  through illegal transactions.


"And" is emphasized in the last sentence because through- out this
litigation, McDermott has attempted to portray him- self as an
innocent. Again and again he insists that he  "lawfully obtained" the
tape recording from the Martins. By  this he means that he broke no
law in taking possession of the  tape. But this is hardly certain. The
Martins violated  s 2511 not once, but twice--first when they
intercepted the  call and second when they disclosed it to McDermott.
By  accepting the tape from the Martins, McDermott participated  in
their illegal conduct. That transaction may have involved a  quid pro
quo. When they transmitted the tape to McDer- mott, the Martins
expressed their understanding that they  would be receiving immunity
for their illegal conduct. The  inference is that someone promised
this in return for the  tape. Who? The obvious candidate is McDermott,
or some- one acting in concert with him. One need not go so far as to 
say that the Martins and McDermott entered into a conspira- cy, in
violation of 18 U.S.C. s 371. It is enough to point out,  as Boehner
does, that in receiving the tape, McDermott took  part in an illegal
transaction. See Reply Brief for Appellant  at 11. If he did not
thereby break the law, he was at least  skirting the edge.


The Florida Star Court's third reason for applying the  "Daily Mail
principle" was "the 'timidity and self-censorship' 




__________

n the published information had, like the information in Florida Star, 
been placed in the public domain by the government. In Daily  Mail,
the newspapers had "obtained [the information] from wit- nesses, the
police, and a local prosecutor," 491 U.S. at 531, and the  state
sought to punish the printing of the information after it had  already
been broadcast on the radio. See Daily Mail, 443 U.S. at  104-05.


which may result from allowing the media to be punished for 
publishing" "information released, without qualification, by  the
government." 491 U.S. at 535-36. McDermott is not the  "Media"; the
government did not release this information;  and it would not be out
of "timidity [or] self-censorship" for  someone to alert the
authorities after being handed evidence  of a crime by those who
perpetrated the offense. It would  instead be an act worthy of a
responsible citizen. See 18  U.S.C. s 3 (accessory after the fact); 18
U.S.C. s 4 (mispri- sion of a felony).


In short, the illegal activity of the Martins, of which  McDermott was
well aware when he took possession of the  tape, takes McDermott's
actions "outside of the Daily Mail  principle" and the Florida Star
line of cases. 491 U.S. at  534.17


Beyond those cases, one can find no firm First Amendment  right to
disclose information simply because the information  was, in the first
instance, legally acquired by the person who  revealed it. For
instance, a grand juror who lawfully obtains  knowledge of the
testimony of witnesses may not disclose that  testimony to anyone
else. See Fed. R. Crim. P. 6(e); see In re  Motions of Dow Jones &
Co., 142 F.3d 496, 499-500 (D.C. Cir.  1998). There appears to be no
constitutional difficulty with  laws prohibiting the disclosure of
lawfully obtained trade  secrets or with laws protecting proprietary
interests in per- formances. See Zacchini v. Scripps-Howard Broad.
Co., 433  U.S. 562, 577-79 & n.13 (1977). Congress may provide 
remedies for the unauthorized publication of copyrighted  material
even if the publisher broke no law in receiving the 




__________

n 17 Butterworth v. Smith, 494 U.S. 624 (1990), on which McDer- mott
also relies, held that under the First Amendment the govern- ment
could not prohibit a grand jury witness from publicly disclos- ing his
own grand jury testimony. The Court did not suggest that  grand
jurors, who are under a duty of confidentiality, or someone  who
steals grand jury transcripts, could not be punished for disclos- ing
such testimony. While Butterworth might apply if the law  prohibited a
person not only from tape recording his own conversa- tion, but also
from disclosing the contents of his conversation, the  opinion had
nothing to say about McDermott's situation.


material. See Harper & Row, 471 U.S. at 555-60. In  discovery,
litigants lawfully acquire private information from  their opponents.
This does not mean the First Amendment  precludes a court from issuing
a protective order to prevent  disclosure of that information. See
Seattle Times Co. v.  Rhinehart, 467 U.S. 20, 31, 36-37 (1984). Courts
may enforce  a reporter's promise not to publish the lawfully obtained
 name of a confidential informant. See Cohen, 501 U.S. at  669-72; see
also Snepp v. United States, 444 U.S. 507 (1980)  (per curiam)
(enforcing CIA agent's employment agreement  to submit his writings
for prepublication review). And a law  enforcement official who
conducts a wiretap or a judge who  authorizes the interception has no
First Amendment right to  disclose the contents of the intercepted
call or the existence of  the electronic surveillance. United States
v. Aguilar, 515  U.S. 593, 605 (1995).18


One might try to distinguish these cases on the basis that  in each
there was some pre-existing duty not to reveal the 




__________

n 18 This recital hardly exhausts the category of laws prohibiting 
disclosure of information without regard to whether the recipient 
violated the law in obtaining the information. For instance, lawyers 
may suffer suspension or disbarment for revealing client confi-
dences. Those who rent or sell video tapes may be held liable for 
disclosing "personally identifiable information concerning" their cus-
tomers. 18 U.S.C. s 2710. With some exceptions, employees of  state
motor vehicle departments may not disclose information about 
individuals who have received drivers' licenses or vehicle registra-
tions. 18 U.S.C. s 2721. Under 18 U.S.C. s 794, it is an offense, 
punishable by death or imprisonment, for anyone intending to  injure
the United States to disclose to a foreign nation documents  relating
to our national defense. Tax return preparers are subject  to civil
and criminal penalties for the unauthorized disclosure of tax  return
information. See 26 U.S.C. ss 6713, 7216; see also 26  U.S.C. s 6103
(imposing duty of confidentiality on IRS employees);  Tax Analysts v.
IRS, 117 F.3d 607, 613 (D.C. Cir. 1997) ("The IRS  and the office of
Chief Counsel are the gatekeepers of federal tax  information. Through
s 6103, Congress charged these two agen- cies and their employees with
the duty of protecting return informa- tion from disclosure to others
within the federal government, and to  the public at large.").


information lawfully received. McDermott makes the at- tempt. In each
of these cases, he says, "a person or entity  obtains confidential
information pursuant to a concomitant  duty of nondisclosure, and the
First Amendment does not  preclude the enforcement of that duty."
Brief for Appellee at  20. But this is no distinction at all.
McDermott too obtained  the tape under a duty of nondisclosure. In his
case the duty  arose from a statute--s 2511(1)(c). The same was true
in  Harper & Row, the only difference being that the duty there 
stemmed from the copyright laws. It is true that Congres- sional
authority to pass copyright laws is provided specifically  in the
Constitution (Article I, s 8) and that copyright itself  serves as an
"engine of free expression." Harper & Row, 471  U.S. at 558. But much
the same may be said of s 2511: the  Commerce Clause of the
Constitution gave Congress the  power to regulate interstate
communications, and s 2511,  including s 2511(1)(c), promotes free


D


Our dissenting colleague finds it difficult to draw any lines  between
McDermott's disclosure of the tape and a newspa- per's publication of
the contents of the illegally acquired  conversation. One line,
clearly drawn in this case, is the line  between conduct and speech.
When a newspaper publishes,  it engages in speech. In each of the
cases our colleague  discusses--in Cox Broadcasting, in Oklahoma
Publishing, in  Daily Mail, and in Florida Star19--there was no doubt
the  defendant engaged in speech for which it was held liable. As 
explained earlier, here there is doubt, very real doubt.20 It is 




__________

n 19 We emphasize again that in each of these cases, the information 
the defendant published was in the public domain, and the govern- ment
was responsible for putting it there. Not so here: the  conference
call was not in the public domain and there was no  government
involvement in making it public.


20 It is good that our dissenting colleague believes the press has  no
greater First Amendment rights than anyone else. The Su- preme Court
agrees with him. So do we. See New York Times Co.  v. Sullivan, 376
U.S. 254, 265-66 (1964); First Nat'l Bank of Boston 


McDermott's conduct in handing over the tape to the newspa- pers, not
anything he wrote or said, for which Boehner seeks  recovery under s
2511. And because we are dealing with  conduct, McDermott's case falls
squarely within the Supreme  Court's O'Brien analysis. Whether the
statute would be  constitutional as applied to a newspaper who
published ex- cerpts from the tape--who, in other words, engaged in 
speech--thus raises issues not before us.


Our dissenting colleague also thinks the statute "burdens  speech based
on its content--that is [s 2511(1)(c) forbids] its  publication
because it contains information obtained at an  earlier time in an
illicit fashion." Dissenting op. at 8. One  might as well say that
prosecuting a dealer in stolen books  burdens his speech on the basis
of the contents of the books.  That of course would be silly, but as
far as content discrimi- nation is concerned, there is no relevant
difference here. We  have already explained why McDermott's liability
under  s 2511(1)(c) does not turn on who said what during the 
conference call. McDermott would have violated the law if he  had
handed over the tape of an illegally intercepted communi- cation
between a husband and wife, or an investor and  stockbroker, or a
judge and law clerk. Each such conversa- tion has in common that
someone violated federal law to  intercept it, but this relates to the
method of acquisition not  the contents of the communication. In all
of this, it is  important to keep McDermott's defense firmly in
mind--he  claims that s 2511(1)(c) unconstitutionally burdens his
speech  in this case. One cannot possibly evaluate that claim without 
making the effort to identify precisely what McDermott said,  or
wrote, or did to incur liability. Our dissenting colleague  has not
made the effort, which may be why he has fallen into  the trap of
equating the conversation on the tape with the  contents of


Our colleague cannot understand why Congress thought it  necessary to
prohibit not only the interception of communica- tions, but also their
disclosure. Dissenting op. at 9. The 




__________

n


v. Bellotti, 435 U.S. 765, 777 (1978); Davis v. Schuchat, 510 F.2d 
731, 734 n.3 (D.C. Cir. 1975).


reasons are apparent. One is that prohibiting disclosure  furthers the
freedom of speech, and reduces the damage  caused by unlawful
eavesdropping. Another is that prohibit- ing disclosure removes an
incentive for illegal interceptions.  But in our colleague's judgment,
disclosure should never be  prohibited because illegal political
espionage might uncover  misdeeds that would otherwise go undetected.
Dissenting op.  at 6. This is the old ends-justifies-the-means
rationale.  Worse still, it is a rationale willing to sacrifice
everyone's  freedom not to have their private conversations revealed
to  the world, because some criminal at some time might illegally 
"seize" some politician's incriminating conversation.


Finally, our colleague believes that "the First Amendment  permits the
government to enjoin or punish the release of  information by persons
who have voluntarily entered into  positions requiring them to treat
the information with confi- dentiality." Dissenting op. at 9. That
describes this case  perfectly. McDermott "voluntarily" entered into
just such a  position when he accepted the illicit tape from the
Martins.  At that point he had a duty, if not of "confidentiality,"
then of  nondisclosure. The duty stemmed of course from every 
citizen's responsibility to obey the law, of which s 2511(1)(c)  is a


* * *


For the reasons stated, we hold that s 2511(1)(c) and the  Florida
statute, see supra note 2, are not unconstitutional as  applied in
this case. Accordingly, the judgment of the district  court is
reversed and the case is remanded.


So ordered.


Opinion filed by Circuit Judge Ginsburg concurring in the  judgment and
in Parts I, II.B, and II.D (except the first and  last paragraphs) of
the opinion for the Court:


Although I agree that s 2511(1)(c)* is not unconstitutional  as applied
in this case, I find it unnecessary, in order to reach  that
conclusion, to address a number of the questions ad- dressed by Judge
Randolph. Specifically, I assume rather  than decide that (1)
McDermott's delivery of the tape to the  newspapers constitutes speech
protected by the First Amend- ment to the Constitution of the United
States--a proposition  that no party to the case disputes; and (2) the
holding of  Florida Star, namely, that publication of "lawfully
obtain[ed,]  truthful information about a matter of public
significance ...  may not constitutionally [be] punish[ed] ... absent
a need to  further a state interest of the highest order," 491 U.S.
524,  533 (1989) (quoting Smith v. Daily Mail Publ'g Co., 443 U.S. 
97, 103 (1979)), applies in principle to this case. Because  McDermott
did not in fact lawfully obtain the tape, however,  he may be punished
under s 2511(1)(c), as he concedes, if the  statute as applied to him
survives intermediate scrutiny. I  conclude it does for the reasons
stated in the opinion for the  Court.


Although by its terms Florida Star does not apply to all  cases
involving privately held information, see 491 U.S. at 534  ("To the
extent sensitive information rests in private hands,  the government
may under some circumstances forbid its  nonconsensual acquisition,
thereby bringing outside of the  Daily Mail principle the publication
of any information so  acquired"), we may assume, as McDermott argues,
that Flori- da Star does apply here. Therefore, there is no need to 
decide whether "publication," as used in footnote 8 of that  case,
must mean "publication by the media" and cannot mean  "divulged by an
individual," as it does in the context of libel  law. See Op. at
17-22. Nor need we delve into the ambigui- ties in the Court's dictum
regarding privately held informa- tion--under what circumstances? what
is "sensitive informa- tion"?--because even if Florida Star applies to
McDermott's  dissemination of the privately held information contained




__________

n * My conclusions regarding s 2511(1)(c) apply as well to the  Florida
statute. See Op. at 5 n.2.


the illegal wiretap, he did not lawfully acquire that informa- tion.
McDermott therefore does not satisfy an essential  element of the
Florida Star test. See 491 U.S. at 536 ("The  first inquiry is whether
the newspaper 'lawfully obtain[ed]  [the] information' ").


Indeed, McDermott concedes that the Martins, who violat- ed s
2511(1)(a) in acquiring the information they passed on to  him, are
not protected by the principle of Florida Star. See  Op. at 11.
Nonetheless, he argues that he lawfully obtained  the tape from them
because no federal statute prohibits  receiving the contents of an
illegal wiretap. That does not  mean, however, that McDermott
"lawfully obtain[ed]" the  information. Though the Congress has not
prohibited the  receipt of information obtained by means of an illegal
wiretap,  it has prohibited the intentional and knowing disclosure of
the  contents of such a wiretap. Not only was the transaction in 
which McDermott obtained the tape therefore illegal--albeit  only the
Martins could be punished for effectuating it--but  McDermott knew the
transaction was illegal at the time he  entered into it. See Op. at 4,
24. One who obtains informa- tion in an illegal transaction, with full
knowledge the transac- tion is illegal, has not "lawfully obtain[ed]"
that information in  any meaningful sense.* And the Court's decision
in Florida  Star was not an exercise in empty formalism. See Op. at


McDermott points nonetheless to this passage in Florida  Star:


[T]hat the [Police] Department apparently failed to fulfill  its
obligation under [state law] not to "cause or allow to  be ...
published" the name of a sexual offense victim  [does not] make the
newspaper's ensuing receipt of this  information unlawful. Even
assuming the Constitution 




__________

n * For example, the District of Columbia "prohibits solicitation and 
pimping, but does not criminalize prostitution itself." United States 
v. Jones, 909 F.2d 533, 538 (D.C. Cir. 1990). Therefore, a "John"  who
has sex in exchange for money, but who did not solicit that sex,  has
apparently violated no law. Only the most formal minded,  however,
would describe that sex as having been lawfully obtained.


permitted a State to proscribe receipt of information,  Florida has not
taken this step.


491 U.S. at 536 (emphasis in original). The Court's reference  to a
State "proscrib[ing] receipt of information" must be read  in light of
Florida's decision not to prohibit all disclosures of  the name of a
rape victim. See id. at 540 (noting that statute  prohibits only
publication in mass media, but "does not pro- hibit the spread by
other means of the identities of victims of  sexual offenses").
Accordingly, the transaction in which the  newspaper obtained the name
was not illegal per se; if the  newspaper had not later published the
name, the police  department would have violated no law. By contrast,
the  Congress prohibited the transaction in which McDermott  obtained
the tape, without regard to whether its contents  were subsequently
published as a result.


In any event, as noted in the opinion for the Court at 20-21  n.13, the
remarks upon which McDermott relies are apparent- ly confined to
information furnished by the Government. The  Court recognized in
Florida Star that when information is in  the hands of the Government
"a less drastic means than  punishing truthful publication almost
always exists for guard- ing against the dissemination of private
facts." 491 U.S. at  534. When sensitive information is in private
hands, howev- er, the same cannot be said; the Government has at once
less  power to prevent nonconsensual acquisition of the information 
and more need to prohibit its subsequent dissemination,  whether by
the thief or by one such as McDermott who  received it from the thief.


In sum, nothing in Florida Star requires us to accept  McDermott's
claim that he "lawfully obtain[ed]" the tape  simply because no
statute prohibited his receiving it. Nor  does McDermott provide us
with any reason to extend Flori- da Star in a manner that, as the
district court put it, permits  "a criminal [to] launder the stains
off illegally obtained prop- erty simply by giving it to someone else,
when that other  person is aware of its origins." Boehner v.
McDermott, No.  Civ. 98-594, 1998 WL 436897, at *4 (D. D.C. July 28,
1998). I  therefore conclude only that one does not "lawfully obtain[


within the intendment of that phrase in Florida Star, infor- mation
acquired in a transaction one knows at the time to be  illegal. See
United States v. Riggs, 743 F. Supp. 556, 559  (N.D. Ill. 1990)
(criminal defendant who "did not actually steal  the [information,
but] was completely aware that it was stolen  when he received it" did
not "lawfully obtain[ ]" it).


McDermott concedes, and both Boehner and the Govern- ment agree, that
if Florida Star does not require the applica- tion of strict scrutiny
in this case, then we should apply at  most intermediate scrutiny. I
agree the statute passes that  test for the reasons given in the
opinion for the Court at 8-13.


Sentelle, Circuit Judge, dissenting: "Hard cases make  bad law," is a
cliche. Phrases become cliches through much  repetition. Much
repetition sometimes results from the in- herent truth in the phrase
much repeated. I fear that by not  making the hard choice, the court
today once again proves  that hard cases still make bad law.


A statute of the United States makes it a felony for anyone  to
"intentionally intercept[ ] ... any wire, oral, or electronic 
communication...." 18 U.S.C. s 2511(1)(a) (1994).1 Fur- ther
subsections of the same act render it felonious to "inten- tionally
disclose[ ] ... to any other person the contents of any  wire, oral,
or electronic communication, knowing or having  reason to know that
the information was obtained through the  interception of" such
communication; or to "intentionally  use[ ] the contents" of any such
intercepted communication.  18 U.S.C. s 2511(1)(c)-(d) (1994). On the
undisputed record  before us, Alice and John Martin committed at least
two and  probably three of the felonies created by this Act of Con-
gress. Knowing of these felonies, a Member of the Congress  of the
United States, the elected representative of his people,  the sworn
servant of the law, dealt with the felons, received  from them their
feloniously obtained communications, and  converted it to his own use.
He obtained these communica- tions not for the purpose of disclosing
the felonies or assisting  in the enforcement of law, but solely for
the purpose of using  the contents of the communications in the
pursuit of the  politics of personal destruction. To compound the
wrong, this  was not just any congressman, but the co-chair of the
House  Ethics Committee. In other words, a public official charged 
with the oversight of the ethics of his colleagues willfully  dealt
with felons and knowingly received unlawfully obtained  evidence on
the chance that he might be able to use some- thing contained therein
to embarrass one of the colleagues  whose ethics he was charged with




__________

n 1 Though the litigation before us concerns also Florida statutes, 
see Fla. Stat. Ann. ss 934.03(c) & 934.10 (West 1996), these statutes 
are patterned after the federal statute and do not differ from it in 
any constitutionally significant way. Therefore, for simplicity I will
 direct the discussion in my dissent to the federal statute, intending
 the reasoning to apply as to both.


an official in such an act cannot be an easy thing to do.  Nonetheless,
it is, I think, that hard task that the Constitu- tion compels us to
undertake.


The first element of the dispute between the parties, and  perhaps the
decisive one, is the level of scrutiny applicable to  a constitutional
review of the statutes. McDermott contends,  and I agree, that this
case is controlled by a line of Supreme  Court cases dealing with
various gradations of the question:  Under what circumstances may
state officials constitutionally  punish publication of information?2
As I read those cases,  the answer is that the state may do so, if at
all, only when the  regulation survives a test of strict scrutiny--it
must "further  a state interest of the highest order." Smith v. Daily
Mail  Publ'g Co., 443 U.S. 97, 103 (1979).


The line of relevant Supreme Court cases begins with Cox  Broadcasting
Corp. v. Cohn, 420 U.S. 469 (1975). In Cox  Broadcasting, the Supreme
Court reviewed a judgment in  favor of the family of a rape-murder
victim against a broad- cast corporation which had published the name
of the victim  in violation of a Georgia statute, Ga. Code Ann. s
26-9901  (1972), which made it a misdemeanor to publish or broadcast 
the name or identity of a rape victim. Although the Georgia  courts
vacillated between reliance on the statute and common  law tort
theories " 'for the invasion of the ... right of privacy,  or for the
tort of public disclosure,' " in the end the Georgia  Supreme Court
did pass on the constitutionality of the statute  and sustained it as
a " 'legitimate limitation on the right of  freedom of expression
contained in the First Amendment.' " 




__________

n 2 While I refer throughout this opinion to punishment, for First 
Amendment purposes I consider the term to include civil damage 
provisions. As the Supreme Court noted in New York Times Co. v. 
Sullivan, "What a State may not constitutionally bring about by  means
of a criminal statute is likewise beyond the reach of its civil  law
or libel. The fear of damage awards ... may be markedly  more
inhibiting than the fear of prosecution under a criminal  statute."
376 U.S. 254, 277 (1964) (footnote and citation omitted).  Similarly,
the discussions of prohibition of publishing included in  some of the
cases which follow apply to post-publication punishment  as well as to


420 U.S. at 474, 475 (quoting Cox Broadcasting Corp. v.  Cohn, 200
S.E.2d 127 (Ga.1973)). The high court, noting that  the broadcasting
company had obtained the published infor- mation from public records,
declared itself "reluctant to em- bark on a course that would make
public records generally  available to the media but forbid their
publication if offensive  to the sensibilities of the supposed
reasonable man." Id. at  496. Then, in an opinion narrowed to the
issue most squarely  before it, held that "[a]t the very least, the
First and Four- teenth Amendments will not allow exposing the press to
 liability for truthfully publishing information released to the 
public in official court records." Id. Cox Broadcasting thus  left
open the question of the state's ability to impose liability  for
publishing information not released to the public in official  court


Two years after Cox Broadcasting, in Oklahoma Publish- ing Co. v.
District Court, 430 U.S. 308 (1977), the Supreme  Court reached the
same result as to information not released  in public records, but
otherwise publicly available. Several  reporters, including those
employed by the petitioner compa- ny, had been present in the
courtroom during the hearing of  an eleven-year-old boy charged with
second degree murder.  The district court of Oklahoma County enjoined
members of  the news media from " 'publishing, broadcasting, or
dissemi- nating, in any manner, the name or picture of [a] minor 
child' " in coverage of pending juvenile court proceedings.  Id. at
308 (quoting pretrial order). Citing Cox Broadcasting,  as well as
Nebraska Press Ass'n v. Stewart, 427 U.S. 539  (1976), as compelling
its result, the Supreme Court held that  "the First and Fourteenth
Amendments will not permit a  state court to prohibit the publication
of widely disseminated  information obtained at court proceedings
which were in fact  opened to the public." Id. at 310. The respondent
had  attempted to distinguish Cox Broadcasting on the basis that a 
state statute provided that juvenile hearings would be closed  unless
the court specifically opened them to the public, and  that the record
did not reflect a specific opening in the instant  case. The Supreme
Court found that this made no differ- ence, but held that the critical


published, that is "[t]he name and picture of the juvenile"  were "
'publicly revealed in connection with the prosecution of  the
crime[.]' " Id. at 311 (quoting Cox Broadcasting, 420 U.S.  at 471).
While Oklahoma Publishing, like Cox Broadcasting,  is still not
factually identical to the instant case, it moves one  step further
toward compelling the result sought by McDer- mott.


Smith v. Daily Mail Publishing Co., 443 U.S. 97 (1979),  goes yet
another step. That case involved the publication of  the identity of a
juvenile offender obtained by reporters  lawfully monitoring a police
scanner. The reporters were  indicted under a statute, W.Va. Code s
49-7-3 (1976), making  it unlawful to knowingly publish the name of a
juvenile  involved in a juvenile court proceeding. The United States 
Supreme Court upheld the West Virginia Supreme Court  decision
prohibiting prosecution of the indictment on constitu- tional grounds.
The Supreme Court expressly declared its  holding a narrow one.
Proclaiming that there was "no issue  ... of unlawful press access to
confidential judicial proceed- ings, [and] no issue ... of privacy or
prejudicial pretrial  publicity," id. at 105 (citation omitted), it
declared that "[a]t  issue is simply the power of a state to punish
the truthful  publication of an alleged juvenile delinquent's name
lawfully  obtained by a newspaper." Id. at 105-06 (footnote omitted). 
In Cox Broadcasting and Oklahoma Publishing, the informa- tion sought
to be suppressed was released by the court itself,  either in public
record or by opening access to the public. In  Daily Mail, the
information came from a scanner, but it was  lawfully obtained. The
holding was narrow one, but it moved  narrowly toward encompassing the
protection sought by  McDermott today.


Closer still comes Florida Star v. B.J.F., 491 U.S. 524  (1989). In
Florida Star, a woman referred to by her initials,  BJF, had been
robbed and sexually assaulted by an unknown  assailant. The
investigating law enforcement department  prepared and placed in its
pressroom an incident report  identifying her by her full name.
Employees of the Florida  Star newspaper obtained the report and
published an account  of the sexual assault, including her name, in
violation of a  Florida statute which "ma[de] it unlawful to 'print,


broadcast ... in any instrument of mass communication' the  name of the
victim of a sexual offense." Florida Star, 491  U.S. at 526 (quoting
Florida Stat. s 794.03 (1987)) (footnote  omitted). BJF sued civilly,
relying on the statute for a  standard of negligence per se. She
obtained a judgment  which stood through the state appellate process.
The news- paper appealed to the United States Supreme Court arguing 
that imposing civil liability on the newspaper, pursuant to the 
statute, violated the First Amendment. The Supreme Court  agreed.


The Supreme Court in Florida Star recognized that it had  articulated
in Daily Mail a principle derived from a synthesis  of its prior
cases: " '[I]f a newspaper lawfully obtains truthful  information
about a matter of public significance then state  officials may not
constitutionally punish publication of the  information, absent a need
to further a state interest of the  highest order.' " 491 U.S. at 533
(quoting Daily Mail, 443  U.S. at 103). Thus, the Supreme Court made
it plain that the  fact of constitutional significance in Cox
Broadcasting, Okla- homa Publishing and Daily Mail was not that the
publishers  in those cases had obtained the information at issue from 
public record or public hearings, or publicly available commu-
nications from official sources, but that they had lawfully  obtained
the information. Even in Florida Star, the Court  expressly limited
the scope of its ruling, holding: "only that  where a newspaper
publishes truthful information which it  has lawfully obtained,
punishment may lawfully be imposed, if  at all, only when narrowly
tailored to a state interest of the  highest order...." 491 U.S. at
541. Because I believe this  holding of the Supreme Court instructs
our decision on the  facts before us, I would hold that 18 U.S.C. s
2511 cannot  constitutionally be applied to penalize McDermott's
publica- tion of the contents of the unlawfully intercepted communica-


I concede at the outset that there are distinctions between  our case
and the cases in the Cox Broadcasting-Florida Star  line. However, I
think none of the distinctions permits a  difference in result. First,
I think it is of no constitutional  significance that the holding in
Florida Star expressly cov-


ered the situation "where a newspaper publishes truthful  information,"
while McDermott is not a newspaper. I have  never believed that the
First Amendment protection of "the  freedom ... of the press,"
afforded greater protection to  professional publishers than it does
to anyone who owns a  typewriter, or for that matter than its
protection of "the  freedom of speech" affords those who communicate
without  writing it down. Indeed, it is safe to say that when the 
Framers of the Constitution used the expression "the press,  they did
not envision the large, corporate newspaper and  television
establishments of our modern world," but rather,  "refer[red] to the
many independent printers who circulated  small newspapers or
published writers' pamphlets for a fee."  McIntyre v. Ohio Elections
Comm'n, 514 U.S. 334, 360 (1995)  (Thomas, J., concurring). Therefore,
as the court holds today  that the state can punish the release by
McDermott based on  the manner in which his source obtained that
information, in  a later day the state can burden the publishers of
newspapers  and the broadcasters of television and radio on the same 


I can envision felonious eavesdroppers like the Martins in  this case
obtaining not marginally embarrassing information  about congressmen
but information of critical public impor- tance about, for example,
some public official's accepting a  bribe or committing perjury or
obstruction of justice. Even  if those hypothetical felons dumped
information of that criti- cal nature not into the hands of
politicians but of a newspaper  publisher or a television news
network, the public could never  know of the wrongdoing, because under
today's ruling, those  news media would be barred from further
publication of that  information. Therefore, I cannot think that the
identity of  the communicator can be a distinction of difference.


Judge Randolph's repeated attempt to distinguish between  "newspapers"
on the one hand and "sources" (apparently  meaning all those who are
not newspapers but might commu- nicate information to a newspaper) on
the other is without  substance or force. His attempt to extend to
newspapers  some First Amendment protection not available to all those
 others who might communicate by stating that "sources do 


not publish; newspapers do," creates a hierarchy of First  Amendment
protection for a publishing aristocracy nowhere  suggested in the
Amendment, its history, or the cases apply- ing it. As I noted above,
the Framers' use of the expression  "the press" does not connote a
protected entity, but rather a  protected activity. See McIntyre, 514
U.S. at 360 (Thomas,  J., concurring). The First Amendment protections
of speech  and press extend to those who speak and those who write, 
whether they be press barons, members of Congress, or other 


Judge Randolph's further attempt to pass off what McDer- mott did as
unprotected conduct rather than protected speech  is likewise
unconvincing. Contrary to Judge Randolph's es- sential position, it
was not McDermott's "conduct in deliver- ing the tape that gives rise
to his potential liability under  s 2511(1)(c)." Maj. Op. at 7. What
made his conduct punish- able under the statute was the information
communicated on  the tapes. He could have provided the two newspapers
with  all the tapes in Washington on a given day and incurred no 
liability but for the speech contained on the tapes. Indeed,  the
majority's hypothetical concerning the Martins breaking  into
Boehner's office stealing a tape and giving it to McDer- mott
illustrates the weakness of the majority's position, not  its
strength. Had the Martins broken into the office and  stolen such a
tape and given it to McDermott, he would have  received stolen
property without regard to its contents. Had  he then copied its
contents to other tapes and passed those  copies off to The New York
Times and The Washington Post,  he would have incurred no liability
under 18 U.S.C. s 2511,  nor would he have aggravated his crime of
receiving stolen  property. What he is being punished for here is not
conduct  dependent upon the nature or origin of the tapes; it is


Next, and of somewhat greater persuasion, is the distinc- tion that the
information was unlawfully obtained somewhere  in the chain. That is
to say, the Florida Star Court limited  its holding to truthful
information, lawfully obtained. Indeed,  the Court in Florida Star
expressly reserved "the issue  whether, in cases where information has
been acquired un-


lawfully by a newspaper or by a source, government may  ever punish not
only the unlawful acquisition, but the ensuing  publication as well."
Florida Star, 491 U.S. at 535 n.8  (additional emphasis added) (noting
further that "[t]his issue  was raised but not definitively resolved
in New York Times  Co. v. United States, 403 U.S. 713 (1971), and
reserved in  Landmark Communications, 435 U.S. at 837."). That is the 
question. The second half of that question is the one we must  answer
today. 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 infor- mation based on the defect in a
chain? I say not. This  separates me from the majority.


As the Court held in Florida Star, "punishment may  lawfully be
imposed, if at all" upon the publisher of truthful  information,
lawfully obtained, "only when narrowly tailored  to a state interest
of the highest order...." 491 U.S. at 541.  The Supreme Court has
elsewhere described "the 'now- settled approach' that state
regulations 'imposing severe bur- dens on speech ... [must] be
narrowly tailored to serve a  compelling state interest." Buckley v.
American Constitu- tional Law Found., 119 S. Ct. 636, 642 n.12
(internal quota- tions and punctuation omitted) (quoting Thomas, J.,


Otherwise put, the statutes before us burden speech based  on its
content--that is they forbid its publication because it  contains
information obtained at an earlier time in an illicit  fashion. It is
established Supreme Court law that when the  state "establishes a
financial disincentive to ... publish works  with a particular content
... 'the State must show that its  regulation is necessary to serve a
compelling State interest  and is narrowly drawn to achieve that end.'
" Simon &  Schuster, Inc. v. New York State Crime Victims Board, 502 
U.S. 105, 118 (1991) (quoting Arkansas Writers' Project, Inc.  v.
Ragland, 481 U.S. 221, 231 (1987)). I will not dispute that  the
protection of the privacy of electronic communication is a  compelling
state interest. I will concede for purposes of the  present case that
punishment of an unlawful interceptor, both 


criminally and by the allowance of civil damages, may well be 
sufficiently narrowly tailored to survive even the strict scruti- ny
required here. I do not, however, see that either the  United States
or the State of Florida has established that an  undifferentiated
burden on the speech of anyone who acquires  the information contained
in the communication from the  unlawful interceptor is necessary to
accomplish the state's  legitimate goal or narrowly tailored to serve
that end. I do  not see how we can draw a line today that would punish
 McDermott and not hold liable for sanctions every newspa- per, every
radio station, every broadcasting network that  obtained the same
information from McDermott's releases  and published it again. Not
only is this not narrow tailoring,  this is not tailoring of any sort.
As I recognized above, we  are not squarely within the language of
Florida Star. I think  we must answer the question reserved in that
decision, and I  think we must answer it against the burdening of


Although appellant offers other distinctions from the rea- soning of
Florida Star, I find none compelling, or worth more  than passing
mention. It is true, as appellant and the United  States as intervenor
argue, that the Supreme Court has held  that the First Amendment
permits the government to enjoin  or punish the release of information
by persons who have  voluntarily entered into positions requiring them
to treat that  information with confidentiality. See, e.g., Snepp v.
United  States, 444 U.S. 507 (1980) (upholding constructive trust 
against all profits of the publication of truthful information of 
public importance lawfully obtained through petitioner's em- ployment
at the CIA, where he had contracted to keep the  same confidential);
United States v. Aguilar, 515 U.S. 593  (1995) (allowing punishment of
a federal judge who disclosed  sensitive information concerning
statutorily authorized wire- tap); Seattle Times Co. v. Rhinehart, 467
U.S. 20 (1984)  (upholding restrictions on disclosure of otherwise
confidential  information obtained by court order in civil discovery).
Ap- pellant and intervenor argue that McDermott can be pun- ished for
his disclosure because of his having, in their view,  obtained the
information at issue in his capacity as a member  of the House Ethics
Committee. I cannot agree. McDer-


mott did not in fact obtain the information in his official  capacity.
The felons who communicated it to him were not  looking for him to use
his official ethical capacity but rather  his unofficial political
capacity to disseminate their unlawfully  obtained information. It may
well be the case that had he  obtained the same information, for
example, by Committee  subpoena, he could not have lawfully disclosed
it and his  disclosure would not be constitutionally protected.
Indeed,  that is perhaps more likely than not. But those are not the 
facts before us.


Conclusion


For the reasons set forth above, I would uphold the judg- ment of the
district court and I respectfully dissent from the  decision of the
court to the contrary.