Jean v. Massachusetts State Police

          United States Court of Appeals
                     For the First Circuit


No. 06-1775

                          MARY T. JEAN,

                      Plaintiff, Appellee,

                               v.

               MASSACHUSETTS STATE POLICE, et al.,

                     Defendants, Appellants.


          APPEAL FROM THE UNITED STATES DISTRICT COURT

                FOR THE DISTRICT OF MASSACHUSETTS

         [Hon. F. Dennis Saylor IV, U.S. District Judge]


                             Before

                       Boudin, Chief Judge,
                Campbell, Senior Circuit Judge,
                    and Lipez, Circuit Judge.



     Ronald F. Kehoe, Assistant Attorney General, with whom Thomas
F. Reilly, Attorney General, was on brief, for appellants.
     Eric B. Hermanson, with whom Sara E. Solfanelli, Choate, Hall
& Stewart LLP, John Reinstein, and American Civil Liberties Union
of Massachusetts were on brief, for appellee.



                          June 22, 2007
          LIPEZ, Circuit Judge. This case presents the question of

whether the First Amendment prevents Massachusetts law enforcement

officials from interfering with an individual’s internet posting of

an audio and video recording of an arrest and warrantless search of

a private residence, when the individual who posted the recording

had reason to know at the time she accepted the recording that it

was illegally recorded.          The appellant state police officers

challenge the district court’s grant of a preliminary injunction

enjoining them from taking any action that interferes with appellee

Mary Jean's posting of the recording on a website.            We find this

case materially indistinguishable from the Supreme Court’s decision

in Bartnicki v. Vopper, 532 U.S. 514 (2001), and thus conclude that

Jean has a reasonable likelihood of success on the merits of her

claim that the First Amendment protects the posting of a recording

under such circumstances.       Consequently, we uphold the preliminary

injunction.

                                     I.

A. Factual Background

          The facts are largely undisputed; where disputes exist,

they do not affect the outcome of this appeal.

          Jean,   a     local     political   activist   in     Worcester,

Massachusetts, maintained a website displaying articles and other

information critical of former Worcester County District Attorney




                                    -2-
John Conte.1     In October 2005, Paul Pechonis contacted Jean through

her website.       They had never met previously.      Pechonis explained

that, on September 29, eight armed State Police troopers arrested

him in his home on a misdemeanor charge.          He met the officers at

the front door and allowed them to handcuff him.           The officers then

conducted a warrantless search of his entire house. The arrest was

both audiotaped and videotaped by a “nanny-cam,” a motion-activated

camera used by parents to monitor children’s activities within the

home.       The parties contest whether the recording was accidental;

this fact is immaterial to the outcome of the case.

              Pechonis   provided   Jean   a   copy   of   the   audio/video

recording.      We assume, for purposes of this appeal, that when Jean

accepted the tape she had reason to know that it had been illegally

recorded.      On January 29, 2006, Jean posted the recording on her

website accompanied by an editorial comment critical of Conte’s

performance in office.

              By letter dated February 14, the State Police advised

Jean that her actions violated Mass. Gen. Laws ch. 272, § 99

("section 99"), and were subject to prosecution as a felony.2            The


        1
      The website is accessible at www.conte2006.com.            Conte is no
longer in office.
        2
      Mass. Gen. Laws ch. 272 § 99(B)(4) defines an "interception"
as "to secretly hear, secretly record, or aid another to secretly
hear or secretly record the contents of any wire or oral
communication through the use of any intercepting device by any
person other than a person given prior authority by all parties to
such communication." In pertinent part, Mass. Gen. Laws ch. 272

                                     -3-
letter stated that, if Jean did not “cease and desist, within 48

hours of receipt of this letter, from posting this unlawful tape on

the internet or any other publicly accessible site,” the police

would “refer this matter to the District Attorney’s office for

further investigation and possible prosecution.”   The police sent

a second letter on March 29, which clarified the previous letter by

stating that, given the statute's limitation to "wire or oral

communications," Jean would not be in violation if she removed the

audio portion of the recording from her website.

B. Procedural History

          On February 17, 2006, Jean filed a complaint in federal

district court in Massachusetts seeking a temporary restraining

order and preliminary and permanent injunctive relief against the

Massachusetts State Police, State Police Superintendent Thomas G.

Robbins, and Attorney General Thomas Reilly in their individual and

official capacities (collectively, “the police”).3      Citing her


§ 99(C)(1) states that any person who "willfully commits an
interception, attempts to commit an interception, or procures any
other person to commit an interception" may be punished with a fine
of up to ten thousand dollars, imprisoned for up to five years, or
both. Section 99(C)(3) states that an individual who "willfully
discloses or attempts to disclose to any person the contents of any
wire or oral communication, knowing that the information was
obtained through interception . . . shall be guilty of a
misdemeanor." Finally, section 99(C)(6) prohibits "permit[ting],"
"participat[ing] in a conspiracy to commit," or serving as an
"accessory" to other violations of section 99.
     3
       Since the time Jean filed her complaint, Reilly has been
succeeded as Massachusetts Attorney General by Martha Coakley.
Under Federal Rule of Civil Procedure 25, however, "the action does

                               -4-
right to free speech under the First Amendment, Jean sought to

preclude   defendants   from   threatening   her   with    prosecution   or

enforcing section 99 against her.       The district court granted a

temporary restraining order preventing the police from interfering

with Jean’s “disclosure, use, or display, including posting on the

internet,” of the audio/video recording.

           After briefing and a hearing, the court granted the

request for a preliminary injunction on April 7.          Finding the case

controlled by Bartnicki v. Vopper, 532 U.S. 514 (2001), the court

noted that Jean played no part in the recording of the video, that

she had “obtained the tape lawfully,” and that the videotape

related to a “matter of public concern.”      The court concluded that

Jean had demonstrated a likelihood of success on the merits of her

First Amendment claim, that irreparable harm would result from the

absence of an injunction, and that the balance of burdens and

public interests weighed in favor of Jean.            Consequently, it

granted the preliminary injunction.     This appeal ensued.

                                  II.

A. Standard of Review

           Under 28 U.S.C. § 1292(a)(1), we have jurisdiction to

hear an interlocutory appeal of an order granting a preliminary

injunction.    We review the grant or denial of a preliminary



not abate and the officer's successor is automatically substituted
as a party." Fed. R. Civ. P. 25(d)(1).

                                  -5-
injunction for abuse of discretion. Wine & Spirits Retailers, Inc.

v. Rhode Island, 418 F.3d 36, 46 (1st Cir. 2005).                      Within that

framework, "findings of fact are reviewed for clear error and

issues of law are reviewed de novo."               Id.   Thus, "we will set aside

a district court’s ruling on a preliminary injunction motion only

if the court clearly erred in assessing the facts, misapprehended

the applicable legal principles, or otherwise is shown to have

abused its discretion."          Id.

            In considering the motion for a preliminary injunction,

a    district    court   weighs        four     factors:   (1)   the    plaintiff’s

likelihood      of   success     on    the     merits;   (2)   the   potential   for

irreparable harm in the absence of an injunction; (3) whether

issuing an injunction will burden the defendants less than denying

an injunction would burden the plaintiffs; and (4) the effect, if

any, on the public interest.             Bl(a)ck Tea Soc’y v. City of Boston,

378 F.3d 8, 11 (1st Cir. 2004).               The police contest only the first

factor: Jean’s likelihood of success on the merits.                    That inquiry

is    the   most     important        part    of   the   preliminary    injunction

assessment: "[I]f the moving party cannot demonstrate that he is

likely to succeed in his quest, the remaining factors become

matters of idle curiosity."                  New Comm Wireless Servs., Inc. v.

SprintCom, Inc., 287 F.3d 1, 9 (1st Cir. 2002).                  Moreover, to the

extent that the police could have argued that the other three

factors assist in demonstrating abuse of discretion by the district


                                             -6-
court, they have now waived those arguments by failing to raise

them on appeal.

          Thus, the question before us is whether the district

court erred in granting a preliminary injunction prohibiting the

enforcement of Mass. Gen. Laws ch. 272, § 99 against Jean for her

receipt and internet posting of the audio/video recording of

Pechonis’ arrest. Like the district court, we evaluate whether, in

light of the record before us, she has a reasonable likelihood of

success on the merits.

B. Bartnicki v. Vopper

          We agree with the district court that this case is

controlled by the Supreme Court’s decision in Bartnicki v. Vopper,

532 U.S. 514 (2001).      Therefore, we must examine that decision

closely before applying it to the facts of this case.

          1. Background

          In Bartnicki, the Supreme Court considered "what degree

of protection, if any, the First Amendment provides to speech that

discloses the contents of an illegally intercepted communication."

Id. at 517.   The dispute in Bartnicki arose during contentious

collective bargaining negotiations between a Pennsylvania school

board and a union representing teachers at the local high school.

An unidentified person intercepted and recorded a cellular phone

call between the union’s chief negotiator and the president of the

local union, during which the president stated: "If they’re not


                                 -7-
gonna move for three percent, we’re gonna have to go to their,

their homes . . . . To blow off their front porches . . . ."                  Id.

at 518-19 (first omission in original)(internal quotation marks

omitted).

              Jack Yocum, the head of a local taxpayer’s organization,

subsequently found a recording of the intercepted conversation in

his mailbox.      He played the tape for members of the school board

and   later    delivered    the   tape     to   Frederick     Vopper,   a   radio

commentator, who played the tape on his public affairs talk show.

The union officials brought an action for damages under federal and

state wiretap statutes against Yocum and Vopper, who invoked their

First Amendment right to speak on issues of public importance.

              The relevant provision of the federal wiretap statute, 18

U.S.C. § 2511(1)(c), provides that any person who “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    communication    in

violation of this subsection" may be sued.            The Pennsylvania state

wiretap statute contains a similar provision.                18 Pa. Cons. Stat.

§ 5703.       Both statutory schemes also provide for recovery of

damages for violations. 18 U.S.C. § 2520(c)(2); 18 Pa. Cons. Stat.

§ 5725(a).




                                         -8-
             Following discovery, the parties filed cross-motions for

summary judgment before the district court.              The court denied both

motions and granted a motion for an interlocutory appeal to the

Third Circuit. That court concluded that the statutes were invalid

as applied because they deterred significantly more speech than was

necessary to protect the privacy interests at stake, and remanded

with   instructions       to   enter   summary      judgment   for        defendants.

Bartnicki, 532 U.S. at 521-22 (citing Bartnicki v. Vopper, 200 F.3d

109,   121   (3d   Cir.    1999)).      The    Supreme      Court    then    granted

certiorari    to   determine     whether      the   First   Amendment       shielded

defendants from suits for damages for violation of § 2511(1)(c) and

its Pennsylvania analog.

             Since the grant of certiorari followed a remand with

instructions to enter summary judgment for defendants, the majority

opinion (authored by Justice Stevens and joined by five other

Justices) viewed the facts in the light most favorable to the

plaintiffs.     Bartnicki, 532 U.S. at 525.              It assumed "that the

interception was intentional, and therefore unlawful, and that, at

a minimum, [defendants] 'had reason to know' that it was unlawful."

Id. at 525.     The plaintiffs were thus entitled to recover damages

under the statutes unless application of the statutes in such

circumstances would violate the First Amendment.                    Id.    The Court

also accepted three other factual propositions "that serve to

distinguish most of the cases that have arisen under § 2511."


                                       -9-
First, the defendants "played no part in the illegal interception.

Rather,   they   found    out   about   the   interception    only   after   it

occurred, and in fact never learned the identity of the person or

persons who made the interception." Second, defendants’ “access to

the information on the tapes was obtained lawfully, even though the

information itself was intercepted unlawfully by someone else."

Third, "the subject matter of the conversation was a matter of

public concern."    Id.

           2. The Supreme Court's Analysis

           The Court first held that § 2511(1)(c) was content

neutral, explaining that the statute "does not distinguish based on

the content of the intercepted conversations, nor is it justified

by reference to the content of those conversations.                Rather, the

communications at issue are singled out by virtue of the fact that

they were illegally intercepted . . . ."           Id. at 526.       The Court

also explained that the statute, as applied to the facts of the

case, "is fairly characterized as a regulation of pure speech."

Id.   It noted that the delivery of a tape recording "is like the

delivery of a handbill or pamphlet, and as such, it is the kind of

'speech' that the First Amendment protects."          Id. at 527.

           Having   established     these     principles,    the   Court   then

balanced the state interests served by the statute against the

public interest in the disclosure of information.                    The Court

identified two interests served by the statute: (1) "removing an


                                    -10-
incentive for parties to intercept private conversations"; and (2)

"minimizing the harm to persons whose conversations have been

illegally intercepted."              Id. at 529.         The Court accorded little

weight to the first interest, id. at 532, noting that “it would be

quite remarkable to hold that speech by a law-abiding possessor of

information can be suppressed in order to deter conduct by a non-

law-abiding third party,” id. at 529-30, and explaining that "there

is   no   empirical   evidence         to   support       the    assumption    that   the

prohibition against disclosures reduces the number of illegal

interceptions," id. at 530-31. It found the second interest in the

situation    before       it    more    immediately           relevant,     noting    that

"disclosure of the contents of a private conversation can be an

even greater intrusion on privacy than the interception itself."

Id. at 533.        Given this concern, it found a "valid independent

justification" for prohibiting "disclosures by persons who lawfully

obtained    access    to       the   contents      of    an     illegally    intercepted

message," even if such prohibition does not deter the initial

interception.      Id.     In particular, "the fear of public disclosure

of private conversations might well have a chilling effect on

private speech."      Id.

            With respect to the public interest in disclosure, the

Court emphasized that "'if a newspaper lawfully obtains truthful

information about a matter of public significance then state

officials    may    not    constitutionally             punish    publication    of    the


                                            -11-
information, absent a need . . . of the highest order.'"                      Id. at

528 (quoting Smith v. Daily Mail Publ'g Co., 443 U.S. 97, 103

(1979)(omission in original)).          Given the presumption in favor of

protecting publication of truthful information, the issue presented

in    Bartnicki   was    narrow:    "'Where     the     punished    publisher      of

information has obtained the information in question in a manner

lawful in itself but from a source who has obtained it unlawfully,

may    the   government    punish      the    ensuing    publication     of     that

information based on the defect in a chain?'"                      Id.   (quoting

Boehner      v.   McDermott,     191     F.3d    463,     484-85      (D.C.     Cir.

1999)(Sentelle, J., dissenting)).

             Although the Court thus noted that “there are important

interests to be considered on both sides of the constitutional

calculus,” id. at 533, it ultimately concluded that “privacy

concerns give way when balanced against the interest in publishing

matters of public importance,” id. at 534.                  Surveying the many

cases in which it had protected speech on matters of public

concern, id. at 534-35, the Court explained that "[o]ne of the

costs   associated      with   participation      in    public     affairs    is   an

attendant loss of privacy," id. at 534.                Consequently, the Court

concluded that "a stranger's illegal conduct does not suffice to

remove the First Amendment shield from speech about a matter of

public concern."        Id. at 535.     Because the collective bargaining

negotiations in Bartnicki were "unquestionably a matter of public


                                       -12-
concern, and respondents were clearly engaged in debate about that

concern,"    the   First    Amendment   prohibited   recovery   of    damages

against defendants.        Id.

C. Application of Bartnicki to Jean’s Circumstances

            As a preliminary matter, we note that, like the statutes

in question in Bartnicki, section 99 is a "content-neutral law of

general applicability," id. at 526. It "does not distinguish based

on   the   content   of    the   intercepted   conversations,   nor    is   it

justified by reference to the content of those conversations." Id.

Like the delivery of the recording in Bartnicki, which the Court

analogized to "the delivery of a handbill or a pamphlet," id. at

527, section 99's prohibition against disclosure also constitutes

a regulation of "pure speech."

            As did the Court in Bartnicki, we consider the interests

implicated by the disclosure of the information.          With respect to

the state's interest in protecting the privacy of its citizens, the

privacy interests discussed in Bartnicki are less compelling here.

Bartnicki emphasized the importance of “encouraging the uninhibited

exchange of ideas and information among private parties,” id. at

532, and of avoiding the "'[f]ear or suspicion that one’s speech is

being monitored by a stranger,'" id. at 533 (quoting President's

Commission on Law Enforcement and Administration of Justice, The

Challenge of Crime in a Free Society 202 (1967)).        This interest in

protecting private communication is clearly implicated by the


                                     -13-
interception of a private cell phone conversation in Bartnicki.

However, this interest is virtually irrelevant here, where the

intercepted communications involve a search by police officers of

a private citizen’s home in front of that individual, his wife,

other members of the family, and at least eight law enforcement

officers.

               Moreover,   the    state's    interest   in   deterring   illegal

interception by punishing a subsequent publisher of information —

already accorded little weight by the Court in Bartnicki — receives

even less weight here, where the identity of the interceptor is

known.      In Bartnicki, the government argued that punishing a

subsequent publisher of information “remov[es] an incentive for

parties to intercept private conversations” by deterring would-be

publishers of illegally intercepted material and thus reducing the

demand for such material.           Id. at 529-30 & n.17.          This argument

rested, in part, on the assumption that the interceptors themselves

could    not    be   punished    because     their   identities    usually   were

unknown.        Unimpressed, the Court explained that the available

evidence did not support this assumption of anonymity.                 First, the

legislative record did not indicate that a significant number of

interceptors were anonymous.           Id. at 531 n.17.          Moreover, fewer

than ten of the 206 cases filed under § 2511 (the federal wiretap

statute) involved an anonymous interceptor.              Id.     Thus, the Court

concluded       that   the      relatively    small     number    of   anonymous



                                       -14-
interceptors meant that it was not "difficult to identify the

persons responsible for illegal interceptions" and, consequently,

not "necessary to prohibit disclosure by third parties with no

connection to, or responsibility for, the initial illegality," id.

          Given    this   logic,   there    is    a    better    argument     for

prosecuting   a   subsequent    publisher    of       information    when    the

interceptor is anonymous.      In such a situation, the government is

unable to punish the interceptor directly; punishing the subsequent

publisher might be more justifiable as a deterrent.              However, even

after taking into account the anonymity of the interceptor in

Bartnicki, the Court held that “[a]lthough there are some rare

occasions in which a law suppressing one party’s speech may be

justified by an interest in deterring criminal conduct by another,

this is not such a case.”      Id. at 530 (citation omitted).               Thus,

where, as here, the identity of the interceptor is known, there is

even less justification for punishing a subsequent publisher than

there was in Bartnicki.

          On the public interest side of the equation, the broad

interest in permitting “the publication of truthful information of

public concern,” described in Bartnicki, id. at 534-35, applies

here as well.     The police do not deny that the event depicted on

the recording — a warrantless and potentially unlawful search of a

private residence — is a matter of public concern.              The police also

concede that, like the defendants in Bartnicki, Jean played no part



                                   -15-
in the illegal interception.        Thus, the only possible ground for

distinguishing this case from Bartnicki is the assertion of the

police that Jean, unlike the defendants in Bartnicki, did not

obtain the recording lawfully.

            The   Massachusetts      interception           statute        prohibits

"willfully commit[ting] an interception," Mass. Gen. Laws ch. 272,

§ 99(C)(1), and “willfully disclos[ing] . . . the contents of any

wire or oral communication, knowing that the information was

obtained through interception,” id. § 99(C)(3).                        It likewise

forbids   “permit[ting],”       “participat[ing]       in    a     conspiracy     to

commit,” or acting as an “accessory to a person who commits” a

violation of another subsection of the statute.                   Id. § 99(C)(6).

By willfully recording his arrest and then giving the recording to

Jean, Pechonis arguably would have violated both section 99(C)(1)

and section 99(C)(3).          Thus, the police argue, by voluntarily

accepting the tape from Pechonis and then disseminating it, Jean

assisted,   conspired,    or    served    as   an    accessory        to   Pechonis’

violation of section 99(C)(3) and thereby independently violated

section 99(C)(6).

            Elaborating on this point, the police contend that "the

disseminator's    knowledge,     when    she   obtains      the    tape,     of   the

interceptor's identity and of the unlawfulness of the interception

is   determinative   of   whether   she    has      obtained     it    lawfully   or

unlawfully for purposes of a Bartnicki analysis."                  They emphasize



                                    -16-
that, in Bartnicki, the tape was placed anonymously in Yocum's

mailbox, and Yocum received the tape without knowing its contents

until after he played it.          532 U.S. at 519.             Thus, they argue,

“[t]he   break    in     the   chain   between    the    interceptor     and    the

defendants became the pivotal point in the Court’s balancing of

interests because the break meant that the defendants had not

obtained the tape unlawfully.”                In contrast, “Jean knowingly

participated in [Pechonis’] disclosure and became the essential

but-for first link in the chain.” In short, appellants insist that

the "essential distinction between this case and Bartnicki" was

that "[i]n Bartnicki, the interceptor had already disseminated the

tape   before    Yocum    passively    received    it     and    disseminated   it

further; . . . .           In the present case, it was Jean's active

collaboration with Pechonis that made his unlawful dissemination

possible in the first instance."

           We will assume that Jean's conduct, viewed through the

prism of section 99(C)(3) and section 99(C)(6), may have been

unlawful under the Massachusetts statute.               She disclosed to others

the contents of an oral communication that she knew had been

recorded illegally, and she arguably participated with Pechonis in

a conspiracy to disclose the content of the illegally recorded oral

communication.      However, whether Jean's conduct fell within the

statute is not determinative — indeed, we note that the conduct of

both Yocum and Vopper in Bartnicki would have fallen within this



                                       -17-
statute.    Rather, the determinative question is whether the First

Amendment, as applied by the Supreme Court in Bartnicki, permits

Massachusetts to criminalize Jean's conduct.          On this question, we

find the arguments of the police unpersuasive.

            The police note correctly that, in Bartnicki, Yocum did

not realize that the tape had been recorded illegally at the time

he received it in his mailbox. Yocum's knowledge of the illegality

of the interception arose only later, when he listened to the tape.

Although the police argue that this delay between the receipt of

the tape and the recognition of its illegality caused a critical

break in the chain, the Supreme Court attached no significance to

Yocum's receipt of the tape without knowledge of its contents.             If

the disconnect in time between the receipt of the tape and the

later recognition that the tape had been recorded illegally was

critical to the premise that Yocum had obtained the tape lawfully,

the Court would have distinguished between Yocum and Vopper, who

received the tape directly from Yocum and thus knew the tape had

been recorded illegally at the time that he received it.              Id. at

519.   Yet the Court explicitly stated that it found no distinction

between Yocum and Vopper.          Id. at 525 n.8.      Like Vopper, Jean

already had reason to know that the tape was illegally intercepted

at   the   time   that   she   received   it;   consequently,   the   Court's

conclusion that Vopper obtained the tape lawfully applies equally

to Jean.



                                     -18-
              The police still insist on a distinction between Jean and

the defendants in Bartnicki because Jean's "active collaboration"

with Pechonis as the essential “first link” in the chain of

dissemination distinguishes this case from Bartnicki. They contend

that Jean "had the opportunity to prevent the dissemination" and

that    "no    one   farther      down     the   chain      would      have   the      same

opportunity."         We    also    find     this    distinction         unpersuasive.

Critically, in Bartnicki, Yocum had the opportunity to prevent

further    disclosure.         Although     he   did     not    know    the     tape    was

illegally intercepted when he received it, he had that knowledge at

the time he disclosed the tape to the school board and Vopper.

Thus,     both   Yocum      and     Jean    could      have     prevented        further

dissemination by refusing to disclose the tape.                     In light of this

similarity, the fact that Yocum received the tape "passively" and

Jean received the tape "actively" is a distinction without a

difference:      both      made    the    decision     to      proceed    with      their

disclosures knowing that the tape was illegally intercepted, yet

the Supreme Court held in Bartnicki that such a knowing disclosure

is protected by the First Amendment.

              Our conclusion is further supported by the D.C. Circuit’s

recent decision in Boehner v. McDermott, 2007 WL 1246438 (D.C. Cir.

May 1, 2007)(en banc). In Boehner, Alice and John Martin illegally

intercepted a cell phone conversation between Representative John

Boehner    and   several      House      Republican      leaders.         The    Martins



                                          -19-
delivered a tape of the conversation, accompanied by a typed letter

explaining           the   nature    of   its     contents,   to   the    office     of

Representative James McDermott, the ranking Democrat on the House

Ethics Committee, who, “[a]fter conversing with the Martins, . . .

accepted the envelope.”             Id. at *2.     McDermott listened to the tape

that evening and disclosed it to various newspapers the following

day.       Boehner subsequently filed a complaint against McDermott

seeking damages for violations of federal and state wiretapping

statutes.

                 Following a lengthy procedural history,4 the D.C. Circuit

heard the case en banc.               The majority held that “Representative

McDermott’s position on the Ethics Committee imposed a ‘special’

duty on him not to disclose the tape in these circumstances,” id.

at *5, and thus he "had no First Amendment right to disclose the

tape       to    the   media,”      id.   at    *7.    The    majority    explicitly

distinguished Bartnicki, explaining that the case “has little to

say about” McDermott’s special duty because “[t]he individuals who

disclosed the tape in [Bartnicki] were private citizens who did not

occupy positions of trust.”               Id. at *5.    Importantly, however, “a

majority of the members of the Court . . . would have found

[McDermott’s] actions protected by the First Amendment” if he were

not subject to a special duty as a member of the Ethics Committee.

Id.    at       *7   (Griffith,     J.,   concurring);    see   also     id.   at   *12

       4
       See Boehner, 2007 WL 1246438 at *1, for an account of this
history.

                                           -20-
(Sentelle, J., dissenting).5         In other words, if McDermott had been

a private citizen, like Jean, the court would have concluded that

his    disclosure   of     the    tape    was    subject       to   First   Amendment

protection   regardless      of    the    fact    that    he    received    the     tape

directly from the Martins and thus served as the “first link” in

the chain leading to publication.

            Returning to Bartnicki, the police make a final attempt

to distinguish the instant case by contending that language in

Justice Breyer’s concurring opinion, joined by Justice O’Connor,

differentiates that case from the situation at hand. They cite the

concurrence’s statement that “[n]o one claims that [defendants]

ordered, counseled, encouraged, or otherwise aided or abetted the

interception, the later delivery of the tape by the interceptor to

an    intermediary,   or    the    tape’s       still    later      delivery   by   the

intermediary to the media,” Bartnicki, 532 U.S. at 538 (Breyer, J.,

concurring)(emphasis added).             The precise scope of the emphasized

language is uncertain, and the police argue that Jean's knowing

acceptance of the tape constitutes aiding and abetting its delivery

to an intermediary in the person of Jean herself.                        Ultimately,

however, this language does not help the police.                     The concurrence

also states plainly that “the statutes do not forbid the receipt of


       5
       Judge Griffith joined the majority opinion but concurred to
state explicitly that McDermott’s publication would have been
protected if he were not a member of the Ethics Committee. The
dissent would have found McDermott’s publication protected by the
First Amendment regardless of his position on the Ethics Committee.

                                         -21-
the tape itself,” id. at 538.              This statement indicates that

Justice   Breyer   did   not     interpret     18    U.S.C.      §    2511(c),    in

conjunction with the federal aiding and abetting statute, 18 U.S.C.

§ 2, to punish an individual's acceptance of a tape, even if that

individual   had   reason   to   know   that    the   tape’s         contents    were

illegally intercepted. Moreover, if he had interpreted the statute

to forbid later disclosure of the tape by one who had lawfully

received it, he could not have joined the majority opinion, which

held that the defendants, who certainly aided the tape's later

delivery by an intermediary to the media, did nothing unlawful.

Thus, the concurring opinion offers no basis for distinguishing

Jean’s situation from that of the defendants in Bartnicki.

                                    III.

           We conclude that the government interests in preserving

privacy and deterring illegal interceptions are less compelling in

this case than in Bartnicki, and Jean’s circumstances are otherwise

materially   indistinguishable      from     those    of   the       defendants    in

Bartnicki, whose publication of an illegally intercepted tape was

protected by the First Amendment.              Jean's publication of the

recording on her website is thus entitled to the same First

Amendment protection.       Consequently, we agree with the district

court that Jean has a reasonable likelihood of success on the

merits of her suit for a permanent injunction.                        The district




                                    -22-
court’s   decision   to   grant   Jean’s   request   for   a   preliminary

injunction is affirmed.

           So ordered.




                                  -23-