532 U.S. 514121 S.Ct. 1753149 L.Ed.2d 787
NOTICE:  This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify  the Reporter of Decisions, Supreme Court of the United States, Washington, D. C.  20543, of any typographical or other formal errors, in order that corrections  may be made before the preliminary print goes to press.BARTNICKI et al.v.VOPPER*, aka WILLIAMS, et al.
No. 99-1687.
SUPREME COURT OF THE UNITED STATES
Argued December 5, 2000Decided May 21, 2001

Syllabus
During contentious collective-bargaining negotiations between a union  representing teachers at a Pennsylvania high school and the local school board,  an unidentified person intercepted and recorded a cell phone conversation  between the chief union negotiator and the union president (hereinafter  petitioners). After the parties accepted a nonbinding arbitration proposal  generally favorable to the teachers, respondent Vopper, a radio commentator,  played a tape of the intercepted conversation on his public affairs talk show in  connection with news reports about the settlement. Petitioners filed this  damages suit under both federal and state wiretapping laws, alleging, among  other things, that their conversation had been surreptitiously intercepted by an  unknown person; that respondent Yocum, the head of a local organization opposed  to the union's demands, had obtained the tape and intentionally disclosed it to,  inter alios, media representatives; and that they had repeatedly published the  conversation even though they knew or had reason to know that it had been  illegally intercepted. In ruling on cross-motions for summary judgment, the  District Court concluded that, under the statutory language, an individual  violates the federal Act by intentionally disclosing the contents of an  electronic communication when he or she knows or has reason to know that the  information was obtained through an illegal interception, even if the individual  was not involved in that interception; found that the question whether the  interception was intentional raised a genuine issue of material fact; and  rejected respondents' defense that they were protected by the First Amendment  even if the disclosures violated the statutes, finding that the statutes were content-neutral laws of general applicability containing no indicia of prior  restraint or the chilling of free speech. The Third Circuit accepted an  interlocutory appeal, and the United States, also a petitioner, intervened to  defend the federal Act's constitutionality. Applying intermediate scrutiny, the  court found the statutes invalid because they deterred significantly more speech  than necessary to protect the private interests at stake, and remanded the case  with instructions to enter summary judgment for respondents.


1
Held: The First Amendment protects the disclosures made by respondents in this  suit. Pp. 6-20.


2
(a) Title III of the Omnibus Crime Control and Safe Streets Act of 1968, as  amended, generally prohibits the interception of wire, electronic, and oral  communications. Title 18 U.S.C.  2511(1)(a) applies to the person who willfully  intercepts such communications and subsection (c) to any person who, knowing or  having reason to know that the communication was obtained through an illegal  interception, willfully discloses its contents. Pp. 6-9.


3
(b) Because of this suit's procedural posture, the Court accepts that the  interception was unlawful and that respondents had reason to know that.  Accordingly, the disclosures violated the statutes. In answering the remaining  question whether the statutes' application in such circumstances violates the  First Amendment, the Court accepts respondents' submissions that they played no  part in the illegal interception, that their access to the information was  obtained lawfully, and that the conversations dealt with a matter of public  concern. Pp. 9-10.


4
(c) Section 2511(1)(c) is a content-neutral law of general applicability.  The statute's purpose is to protect the privacy of wire, electronic, and oral  communications, and it singles out such communications by virtue of the fact  that they were illegally intercepted-by virtue of the source rather than the  subject matter. Cf. Ward v. Rock Against Racism, 491 U.S. 781, 791. On the other  hand, the prohibition against disclosures is fairly characterized as a  regulation of speech. Pp. 10-12.


5
(d) In New York Times Co. v. United States, 403 U.S. 713, this Court upheld  the press' right to publish information of great public concern obtained from  documents stolen by a third party. In so doing, this Court focused on the stolen  documents' character and the consequences of public disclosure, not on the fact  that the documents were stolen. Ibid. It also left open the question whether, in  cases where information has been acquired unlawfully by a newspaper or by a  source, government may punish not only the unlawful acquisition, but also the  ensuing publication. Florida Star v. B. J. F., 491 U.S. 524, 535, n. 8. The  issue here is a narrower version of that question: Where the publisher has  lawfully obtained information from a source who obtained it unlawfully, may the  government punish the ensuing publication based on the defect in a chain? The  Court's refusal to construe the issue more broadly is consistent with its  repeated refusal to answer categorically whether the publication of truthful  information may ever be punished consistent with the First Amendment.  Accordingly, the Court considers whether, given the facts here, the interests  served by 2511(1)(c) justify its restrictions on speech. Pp. 12-14.


6
(e) The first interest identified by the Government-removing an incentive  for parties to intercept private conversations-does not justify applying  2511(1)(c) to an otherwise innocent disclosure of public information. The  normal method of deterring unlawful conduct is to punish the person engaging in  it. It would be 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. In virtually all 2511(1)(a), (c), or (d) violations, the  interceptor's identity has been known. There is no evidence that Congress  thought that the prohibition against disclosures would deter illegal  interceptions, and no evidence to support the assumption that the prohibition  reduces the number of such interceptions. Pp. 14-16.


7
(f) The Government's second interest-minimizing the harm to persons whose  conversations have been illegally intercepted-is considerably stronger. Privacy  of communication is an important interest. However, in this suit, privacy  concerns give way when balanced against the interest in publishing matters of  public importance. One of the costs associated with participation in public  affairs is an attendant loss of privacy. The profound national commitment to the  principle that debate on public issues should be uninhibited, robust, and wide  open supported this Court's holding in New York Times Co. v. Sullivan, 376 U.S.  254, that neither factual error nor defamatory content, nor a combination of the  two, sufficed to remove the First Amendment shield from criticism of official  conduct. Parallel reasoning requires the conclusion that a stranger's illegal  conduct does not suffice to remove the First Amendment shield from speech about  a matter of public concern. Pp. 16-20.


8
200 F.3d 109, affirmed.


9
ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD  CIRCUIT



NOTES:


*
  Together with No. 99-1728, United States v. Vopper, aka Williams, et al.,  also on certiorari to the same court.



10
Stevens, J., delivered the opinion of the Court, in which O'Connor, Kennedy, Souter, Ginsburg, and Breyer, JJ., joined.

Opinion of the Court

11
Justice Stevens delivered the opinion of the Court.


12
These cases raise an important question concerning what degree of protection, if any, the First Amendment provides to speech that discloses the  contents of an illegally intercepted communication. That question is both novel  and narrow. Despite the fact that federal law has prohibited such disclosures  since 1934,1 this is the first time that we have confronted such an issue.


13
The suit at hand involves the repeated intentional disclosure of an illegally intercepted cellular telephone conversation about a public issue. The  persons who made the disclosures did not participate in the interception, but  they did know-or at least had reason to know-that the interception was unlawful.  Accordingly, these cases present a conflict between interests of the highest  order-on the one hand, the interest in the full and free dissemination of  information concerning public issues, and, on the other hand, the interest in  individual privacy and, more specifically, in fostering private speech. The  Framers of the First Amendment surely did not foresee the advances in science  that produced the conversation, the interception, or the conflict that gave rise  to this action. It is therefore not surprising that Circuit judges, as well as  the Members of this Court, have come to differing conclusions about the First  Amendment's application to this issue. Nevertheless, having considered the  interests at stake, we are firmly convinced that the disclosures made by  respondents in this suit are protected by the First Amendment.


14
* During 1992 and most of 1993, the Pennsylvania State Education Association, a union representing the teachers at the Wyoming Valley West High School,  engaged in collective-bargaining negotiations with the school board. Petitioner  Kane, then the president of the local union, testified that the negotiations  were " 'contentious' " and received "a lot of media attention." App. 97, 92. In  May 1993, petitioner Bartnicki, who was acting as the union's "chief  negotiator," used the cellular phone in her car to call Kane and engage in a  lengthy conversation about the status of the negotiations. An unidentified  person intercepted and recorded that call.


15
In their conversation, Kane and Bartnicki discussed the timing of a proposed strike, id., at 41-45, difficulties created by public comment on the  negotiations, id., at 46, and the need for a dramatic response to the board's  intransigence. At one point, Kane said: " 'If they're not gonna move for three  percent, we're gonna have to go to their, their homes . . . To blow off their  front porches, we'll have to do some work on some of those guys. (PAUSES).  Really, uh, really and truthfully because this is, you know, this is bad news.  (UNDECIPHERABLE).' " Ibid.


16
In the early fall of 1993, the parties accepted a non-binding arbitration proposal that was generally favorable to the teachers. In connection with news  reports about the settlement, respondent Vopper, a radio commentator who had  been critical of the union in the past, played a tape of the intercepted  conversation on his public affairs talk show. Another station also broadcast the  tape, and local newspapers published its contents. After filing suit against  Vopper and other representatives of the media, Bartnicki and Kane (hereinafter  petitioners) learned through discovery that Vopper had obtained the tape from  Jack Yocum, the head of a local taxpayers' organization that had opposed the  union's demands throughout the negotiations. Yocum, who was added as a  defendant, testified that he had found the tape in his mailbox shortly after the  interception and recognized the voices of Bartnicki and Kane. Yocum played the  tape for some members of the school board, and later delivered the tape itself  to Vopper.

II

17
In their amended complaint, petitioners alleged that their telephone conversation had been surreptitiously intercepted by an unknown person using an  electronic device, that Yocum had obtained a tape of that conversation, and that  he intentionally disclosed it to Vopper, as well as other individuals and media  representatives. Thereafter, Vopper and other members of the media repeatedly  published the contents of that conversation. The amended complaint alleged that  each of the defendants "knew or had reason to know" that the recording of the  private telephone conversation had been obtained by means of an illegal  interception. Relying on both federal and Pennsylvania statutory provisions,  petitioners sought actual damages, statutory damages, punitive damages, and  attorney's fees and costs.2


18
After the parties completed their discovery, they filed cross-motions for summary judgment. Respondents contended that they had not violated the statute  because (a) they had nothing to do with the interception, and (b) in any event,  their actions were not unlawful since the conversation might have been  intercepted inadvertently. Moreover, even if they had violated the statute by  disclosing the intercepted conversation, respondents argued, those disclosures  were protected by the First Amendment. The District Court rejected the first  statutory argument because, under the plain statutory language, an individual  violates the federal Act by intentionally disclosing the contents of an  electronic communication when he or she "know[s] or ha[s] reason to know that  the information was obtained" through an illegal interception.3 App. to Pet. for  Cert. in No. 99-1687, pp. 53a-54a. Accordingly, actual involvement in the  illegal interception is not necessary in order to establish a violation of that  statute. With respect to the second statutory argument, the District Court  agreed that petitioners had to prove that the interception in question was  intentional,4 but concluded that the text of the interception raised a genuine  issue of material fact with respect to intent. That issue of fact was also the  basis for the District Court's denial of petitioners' motion. Finally, the  District Court rejected respondents' First Amendment defense because the  statutes were content-neutral laws of general applicability that contained "no  indicia of prior restraint or the chilling of free speech." Id., at 55a-56a.


19
Thereafter, the District Court granted a motion for an interlocutory appeal, pursuant to 28 U.S.C.  1292(b). It certified as controlling questions of law:  "(1) whether the imposition of liability on the media Defendants under the  [wiretapping statutes] solely for broadcasting the newsworthy tape on the  Defendant [Vopper's] radio/public affairs program, when the tape was illegally  intercepted and recorded by unknown persons who were not agents of [the]  Defendants, violates the First Amendment; and (2) whether imposition of  liability under the aforesaid [wiretapping] statutes on Defendant Jack Yocum  solely for providing the anonymously intercepted and recorded tape to the media  Defendants violates the First Amendment." App. to Pet. for Cert. in No. 99-1728,  p. 76a. The Court of Appeals accepted the appeal, and the United States, also a  petitioner, intervened pursuant to 28 U.S.C.  2403 in order to defend the  constitutionality of the federal statute.


20
All three members of the panel agreed with petitioners and the Government that the federal and Pennsylvania wiretapping statutes are "content neutral" and  therefore subject to "intermediate scrutiny." 200 F.3d 109, 121 (CA3 1999).  Applying that standard, the majority concluded that the statutes were invalid  because they deterred significantly more speech than necessary to protect the  privacy interests at stake. The court remanded the case with instructions to  enter summary judgment for respondents. In dissent, Senior Judge Pollak  expressed the view that the prohibition against disclosures was necessary in  order to remove the incentive for illegal interceptions and to preclude  compounding the harm caused by such interceptions through wider dissemination.  In so doing, he agreed with the majority opinion in a similar case decided by  the Court of Appeals for the District of Columbia, Boehner v. McDermott, 191  F.3d 463 (1999). See also Peavy v. WFAA-TV, Inc., 221 F.3d 158 (CA5 2000).5 We  granted certiorari to resolve the conflict. 530 U.S. 1260 (2000).

III

21
As we pointed out in Berger v. New York, 388 U.S. 41, 45-49 (1967), sophisticated (and not so sophisticated) methods of eavesdropping on oral  conversations and intercepting telephone calls have been practiced for decades,  primarily by law enforcement authorities.6 In Berger, we held that New York's  broadly written statute authorizing the police to conduct wiretaps violated the  Fourth Amendment. Largely in response to that decision, and to our holding in  Katz v. United States, 389 U.S. 347 (1967), that the attachment of a listening  and recording device to the outside of a telephone booth constituted a search,  "Congress undertook to draft comprehensive legislation both authorizing the use  of evidence obtained by electronic surveillance on specified conditions, and  prohibiting its use otherwise. S. Rep. No. 1097, 90th Cong., 2d Sess., 66  (1968)." Gelbard v. United States, 408 U.S. 41, 78 (1972) (Rehnquist, J.,  dissenting). The ultimate result of those efforts was Title III of the Omnibus  Crime Control and Safe Streets Act of 1968, 82 Stat. 211, entitled Wiretapping  and Electronic Surveillance.


22
One of the stated purposes of that title was "to protect effectively the privacy of wire and oral communications." Ibid. In addition to authorizing and  regulating electronic surveillance for law enforcement purposes, Title III also  regulated private conduct. One part of those regulations, 2511(1), defined five  offenses punishable by a fine of not more than $10,000, by imprisonment for not  more than five years, or by both. Subsection (a) applied to any person who  "willfully intercepts . . . any wire or oral communication." Subsection (b)  applied to the intentional use of devices designed to intercept oral  conversations; subsection (d) applied to the use of the contents of illegally  intercepted wire or oral communications; and subsection (e) prohibited the  unauthorized disclosure of the contents of interceptions that were authorized  for law enforcement purposes. Subsection (c), the original version of the  provision most directly at issue in this case, applied to any person who  "willfully discloses, or endeavors to disclose, to any other person the contents  of any wire or oral communication, knowing or having reason to know that the  information was obtained through the interception of a wire or oral  communication in violation of this subsection." The oral communications  protected by the Act were only those "uttered by a person exhibiting an  expectation that such communication is not subject to interception under  circumstances justifying such expectation." 18 U.S.C.  2510(2).


23
As enacted in 1968, Title III did not apply to the monitoring of radio transmissions. In the Electronic Communications Privacy Act of 1986, 100 Stat.  1848, however, Congress enlarged the coverage of Title III to prohibit the  interception of "electronic" as well as oral and wire communications. By reason  of that amendment, as well as a 1994 amendment which applied to cordless  telephone communications, 108 Stat. 4279, Title III now applies to the  interception of conversations over both cellular and cordless phones.7 Although  a lesser criminal penalty may apply to the interception of such transmissions,  the same civil remedies are available whether the communication was "oral,"  "wire," or "electronic," as defined by 18 U.S.C.  2510 (1994 ed. and Supp. V).

IV

24
The constitutional question before us concerns the validity of the statutes as applied to the specific facts of this case. Because of the procedural posture  of the case, it is appropriate to make certain important assumptions about those  facts. We accept petitioners' submission that the interception was intentional,  and therefore unlawful, and that, at a minimum, respondents "had reason to know"  that it was unlawful. Accordingly, the disclosure of the contents of the  intercepted conversation by Yocum to school board members and to representatives  of the media, as well as the subsequent disclosures by the media defendants to  the public, violated the federal and state statutes. Under the provisions of the  federal statute, as well as its Pennsylvania analog, petitioners are thus  entitled to recover damages from each of the respondents. The only question is  whether the application of these statutes in such circumstances violates the  First Amendment.8


25
In answering that question, we accept respondents' submission on three factual matters that serve to distinguish most of the cases that have arisen  under 2511. First, respondents 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, their access to the information on the tapes was obtained  lawfully, even though the information itself was intercepted unlawfully by  someone else. Cf. Florida Star v. B. J. F., 491 U.S. 524, 536 (1989) ("Even  assuming the Constitution permitted a State to proscribe receipt of information,  Florida has not taken this step"). Third, the subject matter of the conversation  was a matter of public concern. If the statements about the labor negotiations  had been made in a public arena-during a bargaining session, for example-they  would have been newsworthy. This would also be true if a third party had  inadvertently overheard Bartnicki making the same statements to Kane when the  two thought they were alone.

V

26
We agree with petitioners that 2511(1)(c), as well as its Pennsylvania analog, is in fact a content-neutral law of general applicability. "Deciding  whether a particular regulation is content based or content neutral is not  always a simple task. . . . As a general rule, laws that by their terms  distinguish favored speech from disfavored speech on the basis of the ideas or  views expressed are content based." Turner Broadcasting System, Inc. v. FCC, 512  U.S. 622, 642-643 (1994). In determining whether a regulation is content based  or content neutral, we look to the purpose behind the regulation; typically,  "[g]overnment regulation of expressive activity is content neutral so long as it  is 'justified without reference to the content of the regulated speech.' " Ward  v. Rock Against Racism, 491 U.S. 781, 791 (1989).9


27
In this case, the basic purpose of the statute at issue is to "protec[t] the privacy of wire[, electronic,] and oral communications." S. Rep. No. 1097, 90th  Cong., 2d Sess., 66 (1968). 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-by virtue  of the source, rather than the subject matter.


28
On the other hand, the naked prohibition against disclosures is fairly characterized as a regulation of pure speech. Unlike the prohibition against the  "use" of the contents of an illegal interception in 2511(1)(d),10 subsection  (c) is not a regulation of conduct. It is true that the delivery of a tape  recording might be regarded as conduct, but given that the purpose of such a  delivery is to provide the recipient with the text of recorded statements, it is  like the delivery of a handbill or a pamphlet, and as such, it is the kind of  "speech" that the First Amendment protects.11 As the majority below put it,  "[i]f the acts of 'disclosing' and 'publishing' information do not constitute  speech, it is hard to imagine what does fall within that category, as distinct  from the category of expressive conduct." 200 F.3d, at 120.

VI

29
As a general matter, "state action to punish the publication of truthful information seldom can satisfy constitutional standards." Smith v. Daily Mail  Publishing Co., 443 U.S. 97, 102 (1979). More specifically, this Court has  repeatedly held that "if 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 . . . of the highest  order." Id., at 103; see also Florida Star v. B. J. F., 491 U.S. 524 (1989);  Landmark Communications, Inc. v. Virginia, 435 U.S. 829 (1978).


30
Accordingly, in New York Times Co. v. United States, 403 U.S. 713 (1971) (per curiam), the Court upheld the right of the press to publish information of  great public concern obtained from documents stolen by a third party. In so  doing, that decision resolved a conflict between the basic rule against prior  restraints on publication and the interest in preserving the secrecy of  information that, if disclosed, might seriously impair the security of the  Nation. In resolving that conflict, the attention of every Member of this Court  was focused on the character of the stolen documents' contents and the  consequences of public disclosure. Although the undisputed fact that the  newspaper intended to publish information obtained from stolen documents was  noted in Justice Harlan's dissent, id., at 754, neither the majority nor the  dissenters placed any weight on that fact.


31
However, New York Times v. United States raised, but did not resolve the question "whether, in cases where information has been acquired unlawfully by a  newspaper or by a source, government may ever punish not only the unlawful  acquisition, but the ensuing publication as well."12 Florida Star, 491 U.S., at  535, n. 8. The question here, however, is a narrower version of that still-open  question. Simply put, the issue here is this: "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?" Boehner, 191 F.3d, at 484-485 (Sentelle, J., dissenting).


32
Our refusal to construe the issue presented more broadly is consistent with this Court's repeated refusal to answer categorically whether truthful  publication may ever be punished consistent with the First Amendment. Rather,  "[o]ur cases have carefully eschewed reaching this ultimate question, mindful  that the future may bring scenarios which prudence counsels our not resolving  anticipatorily. . . . We continue to believe that the sensitivity and  significance of the interests presented in clashes between [the] First Amendment  and privacy rights counsel relying on limited principles that sweep no more  broadly than the appropriate context of the instant case." Florida Star, 491  U.S., at 532-533.


33
See also Landmark Communications, 435 U.S., at 838. Accordingly, we consider whether, given the facts of this case, the interests served by 2511(1)(c) can  justify its restrictions on speech.


34
The Government identifies two interests served by the statute-first, the interest in removing an incentive for parties to intercept private  conversations, and second, the interest in minimizing the harm to persons whose  conversations have been illegally intercepted. We assume that those interests  adequately justify the prohibition in 2511(1)(d) against the interceptor's own  use of information that he or she acquired by violating 2511(1)(a), but it by  no means follows that punishing disclosures of lawfully obtained information of  public interest by one not involved in the initial illegality is an acceptable  means of serving those ends.


35
The normal method of deterring unlawful conduct is to impose an appropriate punishment on the person who engages in it. If the sanctions that presently  attach to a violation of 2511(1)(a) do not provide sufficient deterrence,  perhaps those sanctions should be made more severe. But 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. Although  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, see, e.g.,  New York v. Ferber, 458 U.S. 747 (1982),13 this is not such a case.


36
With only a handful of exceptions, the violations of 2511(1)(a) that have been described in litigated cases have been motivated by either financial gain  or domestic disputes.14 In virtually all of those cases, the identity of the  person or persons intercepting the communication has been known.15 Moreover,  petitioners cite no evidence that Congress viewed the prohibition against  disclosures as a response to the difficulty of identifying persons making  improper use of scanners and other surveillance devices and accordingly of  deterring such conduct,16 and there is no empirical evidence to support the  assumption that the prohibition against disclosures reduces the number of  illegal interceptions.17


37
Although this case demonstrates that there may be an occasional situation in which an anonymous scanner will risk criminal prosecution by passing on  information without any expectation of financial reward or public praise, surely  this is the exceptional case. Moreover, there is no basis for assuming that  imposing sanctions upon respondents will deter the unidentified scanner from  continuing to engage in surreptitious interceptions. Unusual cases fall far  short of a showing that there is a "need of the highest order" for a rule  supplementing the traditional means of deterring antisocial conduct. The  justification for any such novel burden on expression must be "far stronger than  mere speculation about serious harms." United States v. Treasury Employees, 513  U.S. 454, 475 (1995).18 Accordingly, the Government's first suggested  justification for applying 2511(1)(c) to an otherwise innocent disclosure of public information is plainly insufficient.19


38
The Government's second argument, however, is considerably stronger. Privacy of communication is an important interest, Harper & Row, Publishers, Inc. v.  Nation Enterprises, 471 U.S. 539, 559 (1985),20 and Title III's restrictions are  intended to protect that interest, thereby "encouraging the uninhibited exchange  of ideas and information among private parties . . . ." Brief for United States  27. Moreover, the fear of public disclosure of private conversations might well  have a chilling effect on private speech.


39
"In a democratic society privacy of communication is essential if citizens are to think and act creatively and constructively. Fear or suspicion that one's  speech is being monitored by a stranger, even without the reality of such  activity, can have a seriously inhibiting effect upon the willingness to voice  critical and constructive ideas." President's Commission on Law Enforcement and  Administration of Justice, The Challenge of Crime in a Free Society 202 (1967).  Accordingly, it seems to us that there are important interests to be considered  on both sides of the constitutional calculus. In considering that balance, we  acknowledge that some intrusions on privacy are more offensive than others, and  that the disclosure of the contents of a private conversation can be an even  greater intrusion on privacy than the interception itself. As a result, there is  a valid independent justification for prohibiting such disclosures by persons  who lawfully obtained access to the contents of an illegally intercepted  message, even if that prohibition does not play a significant role in preventing  such interceptions from occurring in the first place.


40
We need not decide whether that interest is strong enough to justify the application of 2511(c) to disclosures of trade secrets or domestic gossip or  other information of purely private concern. Cf. Time, Inc. v. Hill, 385 U.S.  374, 387-388 (1967) (reserving the question whether truthful publication of  private matters unrelated to public affairs can be constitutionally proscribed).  In other words, the outcome of the case does not turn on whether 2511(1)(c) may  be enforced with respect to most violations of the statute without offending the  First Amendment. The enforcement of that provision in this case, however,  implicates the core purposes of the First Amendment because it imposes sanctions  on the publication of truthful information of public concern.


41
In this case, privacy concerns give way when balanced against the interest in publishing matters of public importance. As Warren and Brandeis stated in  their classic law review article: "The right of privacy does not prohibit any  publication of matter which is of public or general interest." The Right to  Privacy, 4 Harv. L. Rev. 193, 214 (1890). One of the costs associated with  participation in public affairs is an attendant loss of privacy.  "Exposure of the self to others in varying degrees is a concomitant of life in a  civilized community. The risk of this exposure is an essential incident of life  in a society which places a primary value on freedom of speech and of press.  'Freedom of discussion, if it would fulfill its historic function in this  nation, must embrace all issues about which information is needed or appropriate  to enable the members of society to cope with the exigencies of their period.' "  Time, Inc. v. Hill, 385 U.S., at 388 (quoting Thornhill v. Alabama, 310 U.S. 88,  102 (1940)).21


42
Our opinion in New York Times Co. v. Sullivan, 376 U.S. 254 (1964), reviewed many of the decisions that settled the "general proposition that freedom of  expression upon public questions is secured by the First Amendment." Id., at  269; see Roth v. United States, 354 U.S. 476, 484 (1957); Bridges v. California,  314 U.S. 252, 270 (1941); Stromberg v. California, 283 U.S. 359, 369 (1931).  Those cases all relied on our "profound national commitment to the principle  that debate on public issues should be uninhibited, robust and wide-open," New  York Times, 376 U.S., at 270; see Terminiello v. Chicago, 337 U.S. 1, 4 (1949);  De Jonge v. Oregon, 299 U.S. 353, 365 (1937); Whitney v. California, 274 U.S.  357, 375-376 (1927) (Brandeis, J., concurring); see also Roth, 354 U.S., at 484;  Stromberg, 283 U.S., at 369; Bridges, 314 U.S., at 270. It was the overriding  importance of that commitment that supported our holding that neither factual  error nor defamatory content, nor a combination of the two, sufficed to remove  the First Amendment shield from criticism of official conduct. Id., at 273; see  also NAACP v. Button, 371 U.S. 415, 445 (1963); Wood v. Georgia, 370 U.S. 375  (1962); Craig v. Harney, 331 U.S. 367 (1947); Pennekamp v. Florida, 328 U.S.  331, 342, 343, n. 5, 345 (1946); Bridges, 314 U.S., at 270.


43
We think it clear that parallel reasoning requires the conclusion that a stranger's illegal conduct does not suffice to remove the First Amendment shield  from speech about a matter of public concern.22 The months of negotiations over  the proper level of compensation for teachers at the Wyoming Valley West High  School were unquestionably a matter of public concern, and respondents were  clearly engaged in debate about that concern. That debate may be more mundane  than the Communist rhetoric that inspired Justice Brandeis' classic opinion in  Whitney v. California, 274 U.S., at 372, but it is no less worthy of  constitutional protection.


44
The judgment is affirmed.


45
It is so ordered.


46
Breyer, J., filed a concurring opinion, in which O'Connor, J., joined.


47
Rehnquist, C. J., filed a dissenting opinion, in which Scalia and Thomas, JJ., joined.



NOTES:


1
  See 48 Stat. 1069, 1103.


2
  Either actual damages, or "statutory damages of whichever is the greater of $100 a day for each day of violation or $10,000" may be recovered under 18  U.S.C.  2520(c)(2); under the Pennsylvania Act, the amount is the greater of  $100 a day or $1,000, but the plaintiff may also recover punitive damages and  reasonable attorney's fees. 18 Pa. Cons. Stat. 5725(a) (2000).


3
  Title 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; . . . shall be  punished . . . ." The Pennsylvania Act contains a similar provision.


4
  Title 18 U.S.C.  2511(1)(a) provides: "(1) Except as otherwise specifically provided in this chapter [2510-2520 (1994 ed. and Supp. V)] any person who-      "(a) intentionally intercepts, endeavors to intercept, or procures any other  person to intercept or endeavor to intercept, any wire, oral, or electronic  communication; . . . shall be punished . . . ."


5
  In the Boehner case, as in this case, a conversation over a car cell phone was intercepted, but in that case the defendant knew both who was responsible  for intercepting the conversation and how they had done it. 191 F.3d, at 465. In  the opinion of the majority, the defendant acted unlawfully in accepting the  tape in order to provide it to the media. Id., at 476. Apparently because the  couple responsible for the interception did not eavesdrop "for purposes of  direct or indirect commercial advantage or private financial gain," they were  fined only $500. See Department of Justice Press Release, Apr. 23, 1997. In  another similar case involving a claim for damages under 2511(1)(c), Peavy v.  WFAA-TV, Inc., 221 F.3d 158 (CA5 2000), the media defendant in fact participated  in the interceptions at issue.


6
  In particular, calls placed on cellular and cordless telephones can be intercepted more easily than those placed on traditional phones. See Shubert v.  Metrophone, Inc., 898 F.2d 401, 404-405 (CA3 1990). Although calls placed on  cell and cordless phones can be easily intercepted, it is not clear how often  intentional interceptions take place. From 1992 through 1997, less than 100  cases were prosecuted charging violations of 18 U.S.C.  2511. See Statement of  James K. Kallstrom, Assistant Director in Charge of the New York Division of the  FBI on February 5, 1997 before the Subcommittee on Telecommunications, Trade,  and Consumer Protection, Committee on Commerce, U.S. House of Representatives  Regarding Cellular Privacy. However, information concerning techniques and  devices for intercepting cell and cordless phone calls can be found in a number  of publications, trade magazines, and sites on the Internet, see id., at 6, and  at one set of congressional hearings in 1997, a scanner, purchased off the shelf  and minimally modified, was used to intercept phone calls of Members of  Congress.


7
  See, e.g., Nix v. O'Malley, 160 F.3d 343, 346 (CA6 1998); McKamey v. Roach, 55 F.3d 1236, 1240 (CA6 1995).


8
  In answering this question, we draw no distinction between the media respondents and Yocum. See, e.g., New York Times Co. v. Sullivan, 376 U.S. 254,  265-266 (1964); First Nat. Bank of Boston v. Bellotti, 435 U.S. 765, 777 (1978).


9
  "But while a content-based purpose may be sufficient in certain  circumstances to show that a regulation is content based, it is not necessary to  such a showing in all cases. . . . Nor will the mere assertion of a  content-neutral purpose be enough to save a law which, on its face,  discriminates based on content." Turner Broadcasting System, Inc. v. FCC, 512  U.S. 622, 642 (1994).


10
  The Solicitor General has catalogued some of the cases that fall under subsection (d): "it is unlawful for a company to use an illegally intercepted  communication about a business rival in order to create a competing product; it  is unlawful for an investor to use illegally intercepted communications in  trading in securities; it is unlawful for a union to use an illegally  intercepted communication about management (or vice versa) to prepare strategy  for contract negotiations; it is unlawful for a supervisor to use information in  an illegally recorded conversation to discipline a subordinate; and it is  unlawful for a blackmailer to use an illegally intercepted communication for  purposes of extortion. See, e.g., 1968 Senate Report 67 (corporate and  labor-management uses); Fultz v. Gilliam, 942 F.2d 396, 400 n. 4 (6th Cir. 1991)  (extortion); Dorris v. Absher, 959 F. Supp. 813, 815-817 (M.D. Tenn. 1997)  (workplace discipline), aff'd in part, rev'd in part, 179 F.3d 420 (6th Cir.  1999). The statute has also been held to bar the use of illegally intercepted  communications for important and socially valuable purposes. See In  re Grand  Jury, 111 F.3d 1066, 1077-1079 (3d Cir. 1997)." Brief for United States 24.


11
  Put another way, what gave rise to statutory liability in this case was the information communicated on the tapes. See Boehner v. McDermott, 191 F.3d 463,  484 (CADC 1999) (Sentelle, J., dissenting) ("What . . . is being punished . . .  here is not conduct dependent upon the nature or origin of the tapes; it is  speech dependent on the nature of the contents").


12
  That question was subsequently reserved in Landmark Communications, Inc. v. Virginia, 435 U.S. 829, 837 (1978).


13
  In cases relying on such a rationale, moreover, the speech at issue is considered of minimal value. Osborne v. Ohio, 495 U.S. 103 (1990); New York v.  Ferber, 458 U.S., at 762 ("The value of permitting live performances and  photographic reproductions of children engaged in lewd sexual conduct is  exceedingly modest, if not de minimis"). The Government also points to two other  areas of the law-namely, mail theft and stolen property-in which a ban on the  receipt or possession of an item is used to deter some primary illegality. Brief  for United States 14; see also post, at 11. Neither of those examples, though,  involve prohibitions on speech. As such, they are not relevant to a First  Amendment analysis.


14
  The media respondents have included a list of 143 cases under 2511(1)(a) and 63 cases under 2511(1)(c) and (d)-which must also involve violations of  subsection (a)-in an appendix to their brief. The Reply Brief filed by the  United States contains an appendix describing each of the cases in the latter  group.


15
  In only 5 of the 206 cases listed in the appendices, see n. 14, supra, n. 17, infra, was the identity of the interceptor wholly unknown.


16
  The legislative history of the 1968 Act indicates that Congress' concern focused on private surveillance "in domestic relations and industrial espionage  situations." S. Rep. No. 1097, 90th Cong., 2d Sess., 225 (1968). Similarly, in  connection with the enactment of the 1986 amendment, one senator referred to the  interest in protecting private communications from "a corporate spy, a police  officer without probable cause, or just a plain snoop." 131 Cong. Rec. 24366  (1985) (statement of Sen. Leahy).


17
  The dissent argues that we have not given proper respect to "congressional findings" or to " 'Congress' factual predictions.' " Post, at 10. But the  relevant factual foundation is not to be found in the legislative record.  Moreover, the dissent does not argue that Congress did provide empirical  evidence in support of its assumptions, nor, for that matter, does it take real  issue with the fact that in the vast majority of cases involving illegal  interceptions, the identity of the person or persons responsible for the  interceptions is known. Instead, the dissent advances a minor disagreement with  our numbers, stating that nine cases "involved an unknown or unproved  eavesdropper." Post, at 13-14, n. 9 (emphasis added). The dissent includes in  that number cases in which the identity of the interceptor, though suspected,  was not "proved" because the identity of the interceptor was not at issue or the  evidence was insufficient. In any event, whether there are 5 cases or 9  involving anonymous interceptors out of the 206 cases under 2511, in most of  the cases involving illegal interceptions, the identity of the interceptor is no  mystery. If, as the proponents of the dry up the market theory would have it, it  is difficult to identify the persons responsible for illegal interceptions (and  thus necessary to prohibit disclosure by third parties with no connection to, or  responsibility for, the initial illegality), one would expect to see far more  cases in which the identity of the interceptor was unknown (and, concomitantly,  far fewer in which the interceptor remained anonymous). Thus, not only is there  a dearth of evidence in the legislative record to support the dry up the market  theory, but what postenactment evidence is available cuts against it.


18
  Indeed, even the burden of justifying restrictions on commercial speech requires more than "mere speculation or conjecture." Greater New Orleans  Broadcasting Assn., Inc. v. United States, 527 U.S. 173, 188 (1999).


19
  Our holding, of course, does not apply to punishing parties for obtaining the relevant information unlawfully. "It would be frivolous to assert-and no one  does in these cases-that the First Amendment, in the interest of securing news  or otherwise, confers a license on either the reporter or his news sources to  violate valid criminal laws. Although stealing documents or private wiretapping  could provide newsworthy information, neither reporter nor source is immune from  conviction for such conduct, whatever the impact on the flow of news." Branzburg  v. Hayes, 408 U.S. 665, 691 (1972).


20
  " 'The essential thrust of the First Amendment is to prohibit improper restraints on the voluntary public expression of ideas; it shields the man who  wants to speak or publish when others wish him to be quiet. There is  necessarily, and within suitably defined areas, a concomitant freedom not to  speak publicly, one which serves the same ultimate end as freedom of speech in  its affirmative aspect.' " Harper & Row, Publishers, Inc. v. Nation Enterprises,  471 U.S., at 559 (quoting Estate of Hemingway v. Random House, Inc., 23 N. Y. 2d  341, 348, 244 N. E. 2d 250, 255 (Ct. App. 1968)).


21
  Moreover, "our decisions establish that absent exceptional circumstances, reputational interests alone cannot justify the proscription of truthful  speech." Butterworth v. Smith, 494 U.S. 624, 634 (1990).


22
  See, e.g., Florida Star v. B. J. F., 491 U.S. 524, 535 (1989) (acknowledging "the 'timidity and self-censorship' which may result from  allowing the media to be punished for publishing truthful information").



48
Justice Breyer, with whom Justice O'Connor joins, concurring.


49
I join the Court's opinion because I agree with its "narrow" holding, see  ante, at 1-2, limited to the special circumstances present here: (1) the radio  broadcasters acted lawfully (up to the time of final public disclosure); and (2)  the information publicized involved a matter of unusual public concern, namely a  threat of potential physical harm to others. I write separately to explain why,  in my view, the Court's holding does not imply a significantly broader  constitutional immunity for the media.


50
As the Court recognizes, the question before us-a question of immunity from  statutorily imposed civil liability-implicates competing constitutional  concerns. Ante, at 17-18. The statutes directly interfere with free expression  in that they prevent the media from publishing information. At the same time,  they help to protect personal privacy-an interest here that includes not only  the "right to be let alone," Olmstead v. United States, 277 U.S. 438, 478 (1928)  (Brandeis, J., dissenting), but also "the interest . . . in fostering private  speech," ante, at 2. Given these competing interests "on both sides of the  equation, the key question becomes one of proper fit." Turner Broadcasting  System, Inc. v. FCC, 520 U.S. 180, 227 (1997) (Breyer, J., concurring in part).  See also Nixon v. Shrink Missouri Government PAC, 528 U.S. 377, 402 (2000)  (Breyer, J., concurring).


51
I would ask whether the statutes strike a reasonable balance between their  speech-restricting and speech-enhancing consequences. Or do they instead impose restrictions on speech that are disproportionate when measured against their  corresponding privacy and speech-related benefits, taking into account the kind,  the importance, and the extent of these benefits, as well as the need for the  restrictions in order to secure those benefits? What this Court has called  "strict scrutiny"-with its strong presumption against constitutionality-is  normally out of place where, as here, important competing constitutional  interests are implicated. See ante, at 2 (recognizing "conflict between  interests of the highest order"); ante, at 18 ("important interests to be  considered on both sides of the constitutional calculus"); ibid. ("balanc[ing]"  the interest in privacy "against the interest in publishing matters of public  importance"); ante, at 18-19 (privacy interest outweighed in these cases).


52
The statutory restrictions before us directly enhance private speech. See  Harper & Row, Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 559 (1985)  (describing " 'freedom not to speak publicly' " (quoting Estate of Hemingway v.  Random House, Inc., 23 N. Y.2d 341, 348, 244 N. E.2d 250, 255 (1968))). The  statutes ensure the privacy of telephone conversations much as a trespass  statute ensures privacy within the home. That assurance of privacy helps to  overcome our natural reluctance to discuss private matters when we fear that our  private conversations may become public. And the statutory restrictions  consequently encourage conversations that otherwise might not take place.


53
At the same time, these statutes restrict public speech directly,  deliberately, and of necessity. They include media publication within their  scope not simply as a means, say, to deter interception, but also as an end.  Media dissemination of an intimate conversation to an entire community will  often cause the speakers serious harm over and above the harm caused by an  initial disclosure to the person who intercepted the phone call. See Gelbard v.  United States, 408 U.S. 41, 51-52 (1972). And the threat of that widespread  dissemination can create a far more powerful disincentive to speak privately  than the comparatively minor threat of disclosure to an interceptor and perhaps  to a handful of others. Insofar as these statutes protect private communications  against that widespread dissemination, they resemble laws that would award  damages caused through publication of information obtained by theft from a  private bedroom. See generally Warren & Brandeis, The Right to Privacy, 4 Harv.  L. Rev. 193 (1890) (hereinafter Warren & Brandeis). See also Restatement  (Second) of Torts 652D (1977).


54
As a general matter, despite the statutes' direct restrictions on speech,  the Federal Constitution must tolerate laws of this kind because of the  importance of these privacy and speech-related objectives. See Warren & Brandeis  196 (arguing for state law protection of the right to privacy). Cf. Katz v.  United States, 389 U.S. 347, 350-351 (1967) ("[T]he protection of a person's  general right to privacy-his right to be let alone by other people-is, like the  protection of his property and of his very life, left largely to the law of the  individual States"); ante, at 2 (protecting privacy and promoting speech are  "interests of the highest order"). Rather than broadly forbid this kind of  legislative enactment, the Constitution demands legislative efforts to tailor  the laws in order reasonably to reconcile media freedom with personal,  speech-related privacy.


55
Nonetheless, looked at more specifically, the statutes, as applied in these  circumstances, do not reasonably reconcile the competing constitutional  objectives. Rather, they disproportionately interfere with media freedom. For  one thing, the broadcasters here engaged in no unlawful activity other than the  ultimate publication of the information another had previously obtained. They  "neither encouraged nor participated directly or indirectly in the  interception." App. to Pet. for Cert. 33a. See also ante, at 9-10. No one claims  that they 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. Cf. 18 U.S.C.  2 (criminalizing aiding and abetting any federal  offense); 2 W. LaFave & A. Scott, Substantive Criminal Law 6.6(b)-(c), pp.  128-129 (1986) (describing criminal liability for aiding and abetting). And, as  the Court points out, the statutes do not forbid the receipt of the tape itself.  Ante, at 9. The Court adds that its holding "does not apply to punishing parties  for obtaining the relevant information unlawfully." Ante, at 17, n. 19 (emphasis  added).


56
For another thing, the speakers had little or no legitimate interest in  maintaining the privacy of the particular conversation. That conversation  involved a suggestion about "blow[ing] off . . . front porches" and "do[ing]  some work on some of these guys," App. 46, thereby raising a significant concern  for the safety of others. Where publication of private information constitutes a  wrongful act, the law recognizes a privilege allowing the reporting of threats  to public safety. See Restatement (Second) of Torts 595, Comment g (1977)  (general privilege to report that "another intends to kill or rob or commit some  other serious crime against a third person"); id., 652G (privilege applies to  invasion of privacy tort). Cf. Restatement (Third) of Unfair Competition 40,  Comment c (1995) (trade secret law permits disclosures relevant to public health  or safety, commission of crime or tort, or other matters of substantial public  concern); Lachman v. Sperry-Sun Well Surveying Co., 457 F.2d 850, 853 (CA10  1972) (nondisclosure agreement not binding in respect to criminal activity);  Tarasoff v. Regents of Univ. of Cal., 17 Cal. 3d 425, 436, 551 P.2d 334, 343-344  (1976) (psychiatric privilege not binding in presence of danger to self or  others). Even where the danger may have passed by the time of publication, that  fact cannot legitimize the speaker's earlier privacy expectation. Nor should  editors, who must make a publication decision quickly, have to determine present  or continued danger before publishing this kind of threat.


57
Further, the speakers themselves, the president of a teacher's union and the union's chief negotiator, were "limited public figures," for they voluntarily  engaged in a public controversy. They thereby subjected themselves to somewhat  greater public scrutiny and had a lesser interest in privacy than an individual  engaged in purely private affairs. See, e.g., ante, at 19 (respondents were  engaged in matter of public concern); Wolston v. Reader's Digest Assn., Inc.,  443 U.S. 157, 164 (1979); Hutchinson v. Proxmire, 443 U.S. 111, 134 (1979);  Gertz v. Robert Welch, Inc., 418 U.S. 323, 351 (1974). See also Warren &  Brandeis 215.


58
This is not to say that the Constitution requires anyone, including public figures, to give up entirely the right to private communication, i.e.,  communication free from telephone taps or interceptions. But the subject matter  of the conversation at issue here is far removed from that in situations where  the media publicizes truly private matters. See Michaels v. Internet  Entertainment Group, Inc., 5 F. Supp. 2d 823, 841-842 (C.D. Cal. 1998)  (broadcast of videotape recording of sexual relations between famous actress and  rock star not a matter of legitimate public concern); W. Keeton, D. Dobbs, R.  Keeton, & D. Owen, Prosser & Keeton on Law of Torts 117, p. 857 (5th ed. 1984)  (stating that there is little expectation of privacy in mundane facts about a  person's life, but that "portrayal of . . . intimate private characteristics or  conduct" is "quite a different matter"); Warren & Brandeis 214 (recognizing that  in certain matters "the community has no legitimate concern"). Cf. Time, Inc. v.  Firestone, 424 U.S. 448, 454-455 (1976) (despite interest of public, divorce of  wealthy person not a "public controversy"). Cf. also ante, at 18 ("[S]ome  intrusions on privacy are more offensive than  others").


59
Thus, in finding a constitutional privilege to publish unlawfully  intercepted conversations of the kind here at issue, the Court does not create a  "public interest" exception that swallows up the statutes' privacy-protecting  general rule. Rather, it finds constitutional protection for publication of  intercepted information of a special kind. Here, the speakers' legitimate  privacy expectations are unusually low, and the public interest in defeating  those expectations is unusually high. Given these circumstances, along with the  lawful nature of respondents' behavior, the statutes' enforcement would  disproportionately harm media freedom.


60
I emphasize the particular circumstances before us because, in my view, the  Constitution permits legislatures to respond flexibly to the challenges future  technology may pose to the individual's interest in basic personal privacy.  Clandestine and pervasive invasions of privacy, unlike the simple theft of  documents from a bedroom, are genuine possibilities as a result of continuously  advancing technologies. Eavesdropping on ordinary cellular phone conversations  in the street (which many callers seem to tolerate) is a very different matter  from eavesdropping on encrypted cellular phone conversations or those carried on  in the bedroom. But the technologies that allow the former may come to permit  the latter. And statutes that may seem less important in the former context may turn out to have greater  importance in the latter. Legislatures also may decide to revisit statutes such as those before us, creating  better tailored provisions designed to encourage, for example, more effective  privacy-protecting technologies.


61
For these reasons, we should avoid adopting overly broad or rigid  constitutional rules, which would unnecessarily restrict legislative  flexibility. I consequently agree with the Court's holding that the statutes as  applied here violate the Constitution, but I would not extend that holding  beyond these present circumstances.


62
Chief Justice Rehnquist, with whom Justice Scalia and Justice Thomas join,  dissenting.


63
Technology now permits millions of important and confidential conversations  to occur through a vast system of electronic networks. These advances, however,  raise significant privacy concerns. We are placed in the uncomfortable position  of not knowing who might have access to our personal and business e-mails, our  medical and financial records, or our cordless and cellular telephone  conversations. In an attempt to prevent some of the most egregious violations of  privacy, the United States, the District of Columbia, and 40 States have enacted  laws prohibiting the intentional interception and knowing disclosure of  electronic communications.1 The Court holds that all of these statutes violate  the First Amendment insofar as the illegally intercepted conversation touches  upon a matter of "public concern," an amorphous concept that the Court does not  even attempt to define. But the Court's decision diminishes, rather than  enhances, the purposes of the First Amendment: chilling the speech of the  millions of Americans who rely upon electronic technology to communicate each  day.


64
Over 30 years ago, with Title III of the Omnibus Crime Control and Safe  Streets Act of 1968, Congress recognized that the "[t]remendous scientific and technological developments that have taken place in  the last century have made possible today the widespread use and abuse of  electronic surveillance techniques. As a result of these developments, privacy  of communication is seriously jeopardized by these techniques of surveillance" .  No longer is it possible, in short, for each man to retreat into his home and be  left alone. Every spoken word relating to each man's personal, marital,  religious, political, or commercial concerns can be intercepted by an unseen  auditor and turned against the speaker to the auditor's advantage." S. Rep. No.  1097, 90th Cong., 2d Sess., 67 (1968) (hereinafter S. Rep. No. 1097). This concern for privacy was inseparably bound up with the desire that personal  conversations be frank and uninhibited, not cramped by fears of clandestine  surveillance and purposeful disclosure:


65
"In a democratic society privacy of communication is essential if citizens are  to think and act creatively and constructively. Fear or suspicion that one's  speech is being monitored by a stranger, even without the reality of such  activity, can have a seriously inhibiting effect upon the willingness to voice  critical and constructive ideas." President's Commission on Law Enforcement and  Administration of Justice, The Challenge of Crime in a Free Society 202 (1967). To effectuate these important privacy and speech interests, Congress and the  vast majority of States have proscribed the intentional interception and knowing  disclosure of the contents of electronic communications.2 See, e.g., 18 U.S.C.   2511(1)(c) (placing restrictions upon "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").


66
The Court correctly observes that these are "content-neutral law[s] of  general applicability" which serve recognized interests of the "highest order":  "the interest in individual privacy and " in fostering private speech." Ante, at  10, 2. It nonetheless subjects these laws to the strict scrutiny normally  reserved for governmental attempts to censor different viewpoints or ideas. See  ante, at 16 (holding that petitioners have not established the requisite " 'need  of the highest order' ") (quoting Smith v. Daily Mail Publishing Co., 443 U.S.  97, 103 (1979)). There is scant support, either in precedent or in reason, for  the Court's tacit application of strict scrutiny.


67
A content-neutral regulation will be sustained if


68
" 'it furthers an important or substantial governmental interest; 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 interest.' " Turner Broadcasting  System, Inc. v. FCC, 512 U.S. 622, 662 (1994) (quoting United States v. O'Brien,  391 U.S. 367, 377 (1968)).


69
Here, Congress and the Pennsylvania Legislature have acted " 'without reference  to the content of the regulated speech.' " Renton v. Playtime Theatres, Inc.,  475 U.S. 41, 48 (1986). There is no intimation that these laws seek "to suppress  unpopular ideas or information or manipulate the public debate" or that they  "distinguish favored speech from disfavored speech on the basis of the ideas or  views expressed." Turner Broadcasting, supra, at 641, 643. The antidisclosure  provision is based solely upon the manner in which the conversation was  acquired, not the subject matter of the conversation or the viewpoints of the  speakers. The same information, if obtained lawfully, could be published with  impunity. Cf. Seattle Times Co. v. Rhinehart, 467 U.S. 20, 34 (1984) (upholding  under intermediate scrutiny a protective order on information acquired during  discovery in part because "the party may disseminate the identical information "  as long as the information is gained through means independent of the court's  processes"). As the concerns motivating strict scrutiny are absent, these  content-neutral restrictions upon speech need pass only intermediate scrutiny.


70
The Court's attempt to avoid these precedents by reliance upon the Daily  Mail string of newspaper cases is unpersuasive. In these cases, we held that  statutes prohibiting the media from publishing certain truthful information-the  name of a rape victim, Florida Star v. B. J. F., 491 U.S. 524 (1989); Cox  Broadcasting Corp. v. Cohn, 420 U.S. 469 (1975), the confidential proceedings  before a state judicial review commission, Landmark Communications, Inc. v.  Virginia, 435 U.S. 829 (1978), and the name of a juvenile defendant, Daily Mail,  supra; Oklahoma Publishing Co. v. District Court, Oklahoma Cty., 430 U.S. 308  (1977) (per curiam)-violated the First Amendment. In so doing, we stated that  "if 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." Daily Mail, supra, at 103. Neither this Daily Mail principle nor any  other aspect of these cases, however, justifies the Court's imposition of strict  scrutiny here.


71
Each of the laws at issue in the Daily Mail cases regulated the content or  subject matter of speech. This fact alone was enough to trigger strict scrutiny,  see United States v. Playboy Entertainment Group, Inc., 529 U.S. 803, 813 (2000)  ("[A] content-based speech restriction " can stand only if it satisfies strict  scrutiny"), and suffices to distinguish these antidisclosure provisions. But, as  our synthesis of these cases in Florida Star made clear, three other unique  factors also informed the scope of the Daily Mail principle.


72
First, the information published by the newspapers had been lawfully obtained from the government itself.3 "Where information is entrusted to the  government, a less drastic means than punishing truthful publication almost  always exists for guarding against the dissemination of private facts." Florida  Star, supra, at 534. See, e.g., Landmark Communications, supra, at 841, and n.  12 (noting that the State could have taken steps to protect the confidentiality  of its proceedings, such as holding in contempt commission members who breached  their duty of confidentiality). Indeed, the State's ability to control the  information undermined the claim that the restriction was necessary, for "[b]y  placing the information in the public domain on official court records, the  State must be presumed to have concluded that the public interest was thereby  being served." Cox Broadcasting, supra, at 495. This factor has no relevance in  the present cases, where we deal with private conversations that have been  intentionally kept out of the public domain.


73
Second, the information in each case was already "publicly available," and punishing further dissemination would not have advanced the purported government  interests of confidentiality. Florida Star, supra, at 535. Such is not the case  here. These statutes only prohibit "disclos[ure]," 18 U.S.C.  2511(1)(c); 18  Pa. Cons. Stat. 5703(2) (2000), and one cannot "disclose" what is already in  the public domain. See Black's Law Dictionary 477 (7th ed. 1999) (defining  "disclosure" as "[t]he act or process of making known something that was  previously unknown; a revelation of facts"); S. Rep. No. 1097, at 93 ("The  disclosure of the contents of an intercepted communication that had already  become 'public information' or 'common knowledge' would not be prohibited").  These laws thus do not fall under the axiom that "the interests in privacy fade  when the information involved already appears on the public record." Cox  Broadcasting, supra, at 494-495.


74
Third, these cases were concerned with "the 'timidity and self-censorship' which may result from allowing the media to be punished for publishing certain  truthful information." Florida Star, 491 U.S., at 535. But fear of "timidity and  self-censorship" is a basis for upholding, not striking down, these  antidisclosure provisions: They allow private conversations to transpire without  inhibition. And unlike the statute at issue in Florida Star, which had no  scienter requirement, see id., at 539, these statutes only address those who  knowingly disclose an illegally intercepted conversation.4 They do not impose a  duty to inquire into the source of the information and one could negligently  disclose the contents of an illegally intercepted communication without  liability.


75
In sum, it is obvious that the Daily Mail cases upon which the Court relies do not address the question presented here. Our decisions themselves made this  clear: "The Daily Mail principle does not settle the issue whether, in cases  where information has been acquired unlawfully by a newspaper or by a source,  the government may ever punish not only the unlawful acquisition, but the  ensuing publication as well." Florida Star, supra, at 535, n. 8; see also Daily  Mail, 443 U.S., at 105 ("Our holding in this case is narrow. There is no issue  before us of unlawful press [conduct]"); Landmark Communications, 435 U.S., at  837 ("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").5


76
Undaunted, the Court places an inordinate amount of weight upon the fact that the receipt of an illegally intercepted communication has not been  criminalized. See ante, at 13-17. But this hardly renders those who knowingly  receive and disclose such communications "law-abiding," ante, at 14, and it  certainly does not bring them under the Daily Mail principle. The transmission  of the intercepted communication from the eavesdropper to the third party is  itself illegal; and where, as here, the third party then knowingly discloses  that communication, another illegal act has been committed. The third party in  this situation cannot be likened to the reporters in the Daily Mail cases, who  lawfully obtained their information through consensual interviews or public  documents.


77
These laws are content neutral; they only regulate information that was illegally obtained; they do not restrict republication of what is already in the  public domain; they impose no special burdens upon the media; they have a  scienter requirement to provide fair warning; and they promote the privacy and  free speech of those using cellular telephones. It is hard to imagine a more  narrowly tailored prohibition of the disclosure of illegally intercepted  communications, and it distorts our precedents to review these statutes under  the often fatal standard of strict scrutiny. These laws therefore should be  upheld if they further a substantial governmental interest unrelated to the  suppression of free speech, and they do.


78
Congress and the overwhelming majority of States reasonably have concluded that sanctioning the knowing disclosure of illegally intercepted communications  will deter the initial interception itself, a crime which is extremely difficult  to detect. It is estimated that over 20 million scanners capable of intercepting  cellular transmissions currently are in operation, see Thompson, Cell Phone  Snooping: Why Electronic Eavesdropping Goes Unpunished, 35 Am. Crim. L. Rev.  137, 149 (1997), notwithstanding the fact that Congress prohibited the marketing  of such devices eight years ago, see 47 U.S.C.  302a(d).6 As Congress  recognized, "[a]ll too often the invasion of privacy itself will go unknown.  Only by striking at all aspects of the problem can privacy be adequately  protected." S. Rep. No. 1097, at 69. See also Hearings on H. R. 3378 before the  Subcommittee on Courts, Civil Liberties, and the Administration of Justice of  the House Committee on the Judiciary, 99th Cong., 1st Sess. and 2d Sess., 290  (1986) ("Congress should be under no illusion " that the Department [of  Justice], because of the difficulty of such investigations, would be able to  bring a substantial number of successful prosecutions").


79
Nonetheless, the Court faults Congress for providing "no empirical evidence to support the assumption that the prohibition against disclosures reduces the  number of illegal interceptions," ante, at 15-16, and insists that "there is no  basis for assuming that imposing sanctions upon respondents will deter the  unidentified scanner from continuing to engage in surreptitious interceptions,"  ante, at 16. It is the Court's reasoning, not the judgment of Congress and  numerous States regarding the necessity of these laws, which disappoints.


80
The "quantum of empirical evidence needed to satisfy heightened judicial scrutiny of legislative judgments will vary up or down with the novelty and  plausibility of the justification raised." Nixon v. Shrink Missouri Government  PAC, 528 U.S. 377, 391 (2000). "[C]ourts must accord substantial deference to  the predictive judgments of Congress." Turner Broadcasting, 512 U.S., at 665  (citing Columbia Broadcasting System, Inc. v. Democratic National Committee, 412  U.S. 94, 103 (1973)). This deference recognizes that, as an institution,  Congress is far better equipped than the judiciary to evaluate the vast amounts  of data bearing upon complex issues and that "[s]ound policymaking often  requires legislators to forecast future events and to anticipate the likely  impact of these events based on deductions and inferences for which complete  empirical support may be unavailable." Turner Broadcasting, 512 U.S., at 665.  Although we must nonetheless independently evaluate such congressional findings  in performing our constitutional review, this "is not a license to reweigh the  evidence de novo, or to replace Congress' factual predictions with our own."  Id., at 666.


81
The "dry up the market" theory, which posits that it is possible to deter an illegal act that is difficult to police by preventing the wrongdoer from  enjoying the fruits of the crime, is neither novel nor implausible. It is a  time-tested theory that undergirds numerous laws, such as the prohibition of the  knowing possession of stolen goods. See 2 W. LaFave & A. Scott, Substantive  Criminal Law 8.10(a), p. 422 (1986) ("Without such receivers, theft ceases to  be profitable. It is obvious that the receiver must be a principal target of any  society anxious to stamp out theft in its various forms"). We ourselves adopted  the exclusionary rule based upon similar reasoning, believing that it would  "deter unreasonable searches," Oregon v. Elstad, 470 U.S. 298, 306 (1985), by  removing an officer's "incentive to disregard [the Fourth Amendment]," Elkins v.  United States, 364 U.S. 206, 217 (1960).7


82
The same logic applies here and demonstrates that the incidental restriction on alleged First Amendment freedoms is no greater than essential to further the  interest of protecting the privacy of individual communications. Were there no  prohibition on disclosure, an unlawful eavesdropper who wanted to disclose the  conversation could anonymously launder the interception through a third party  and thereby avoid detection. Indeed, demand for illegally obtained private  information would only increase if it could be disclosed without repercussion.  The law against interceptions, which the Court agrees is valid, would be utterly  ineffectual without these antidisclosure provisions.


83
For a similar reason, we upheld against First Amendment challenge a law prohibiting the distribution of child pornography. See New York v. Ferber, 458  U.S. 747 (1982). Just as with unlawfully intercepted electronic communications,  we there noted the difficulty of policing the "low-profile, clandestine  industry" of child pornography production and concurred with 36 legislatures  that "[t]he most expeditious if not the only practical method of law enforcement  may be to dry up the market for this material by imposing severe criminal  penalties on persons selling, advertising, or otherwise promoting the product."  Id., at 760. In so doing, we did not demand, nor did Congress provide, any  empirical evidence to buttress this basic syllogism. Indeed, we reaffirmed the  theory's vitality in Osborne v. Ohio, 495 U.S. 103, 109-110 (1990), finding it  "surely reasonable for the State to conclude that it will decrease the  production of child pornography if it penalizes those who possess and view the  product, thereby decreasing demand."8


84
At base, the Court's decision to hold these statutes unconstitutional rests upon nothing more than the bald substitution of its own prognostications in  place of the reasoned judgment of 41 legislative bodies and the United States  Congress.9 The Court does not explain how or from where Congress should obtain  statistical evidence about the effectiveness of these laws, and "[s]ince as a  practical matter it is never easy to prove a negative, it is hardly likely that  conclusive factual data could ever be assembled." Elkins, supra, at 218.  Reliance upon the "dry up the market" theory is both logical and eminently  reasonable, and our precedents make plain that it is "far stronger than mere  speculation." United States v. Treasury Employees, 513 U.S. 454, 475 (1995).


85
These statutes also protect the important interests of deterring clandestine invasions of privacy and preventing the involuntary broadcast of private  communications. Over a century ago, Samuel Warren and Louis Brandeis recognized  that "[t]he intensity and complexity of life, attendant upon advancing  civilization, have rendered necessary some retreat from the world, and man,  under the refining influence of culture, has become more sensitive to publicity,  so that solitude and privacy have become more essential to the individual." The  Right to Privacy, 4 Harv. L. Rev. 193, 196 (1890). "There is necessarily, and  within suitably defined areas, a " freedom not to speak publicly, one which  serves the same ultimate end as freedom of speech in its affirmative aspect."  Harper & Row, Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 559 (1985)  (internal quotation marks and citation omitted). One who speaks into a phone "is  surely entitled to assume that the words he utters into the mouthpiece will not  be broadcast to the world." Katz v. United States, 389 U.S. 347, 352 (1967); cf.  Gelbard v. United States, 408 U.S. 41, 52 (1972) (compelling testimony about  matters obtained from an illegal interception at a grand jury proceeding  "compounds the statutorily proscribed invasion of " privacy by adding to the  injury of the interception the insult of " disclosure").


86
These statutes undeniably protect this venerable right of privacy. Concomitantly, they further the First Amendment rights of the parties to the  conversation. "At the heart of the First Amendment lies the principle that each  person should decide for himself or herself the ideas and beliefs deserving of  expression, consideration, and adherence." Turner Broadcasting, 512 U.S., at  641. By "protecting the privacy of individual thought and expression," United  States v. United States Dist. Court for Eastern Dist. of Mich., 407 U.S. 297,  302 (1972), these statutes further the "uninhibited, robust, and wide-open"  speech of the private parties, New York Times Co. v. Sullivan, 376 U.S. 254, 270  (1964). Unlike the laws at issue in the Daily Mail cases, which served only to  protect the identities and actions of a select group of individuals, these laws  protect millions of people who communicate electronically on a daily basis. The  chilling effect of the Court's decision upon these private conversations will  surely be great: An estimated 49.1 million analog cellular telephones are  currently in operation. See Hao, Nokia Profits from Surge in Cell Phones, Fla.  Today, July 18, 1999, p. E1.


87
Although the Court recognizes and even extols the virtues of this right to privacy, see ante, at 17-18, these are "mere words," W. Shakespeare, Troilus and  Cressida, act v, sc. 3, overridden by the Court's newfound right to publish  unlawfully acquired information of "public concern," ante, at 10. The Court  concludes that the private conversation between Gloria Bartnicki and Anthony  Kane is somehow a "debate " . worthy of constitutional protection." Ante, at 20.  Perhaps the Court is correct that "[i]f the statements about the labor  negotiations had been made in a public arena-during a bargaining session, for  example-they would have been newsworthy." Ante, at 10. The point, however, is  that Bartnicki and Kane had no intention of contributing to a public "debate" at  all, and it is perverse to hold that another's unlawful interception and knowing  disclosure of their conversation is speech "worthy of constitutional  protection." Cf. Hurley v. Irish-American Gay, Lesbian and Bisexual Group of  Boston, Inc., 515 U.S. 557, 573 (1995) ("[O]ne important manifestation of the  principle of free speech is that one who chooses to speak may also decide 'what  not to say' "). The Constitution should not protect the involuntary broadcast of  personal conversations. Even where the communications involve public figures or  concern public matters, the conversations are nonetheless private and worthy of  protection. Although public persons may have forgone the right to live their  lives screened from public scrutiny in some areas, it does not and should not  follow that they also have abandoned their right to have a private conversation  without fear of it being intentionally intercepted and knowingly disclosed.


88
The Court's decision to hold inviolable our right to broadcast conversations of "public importance" enjoys little support in our precedents. As discussed  above, given the qualified nature of their holdings, the Daily Mail cases cannot  bear the weight the Court places upon them. More mystifying still is the Court's  reliance upon the "Pentagon Papers" case, New York Times Co. v. United States,  403 U.S. 713 (1971) (per curiam), which involved the United States' attempt to  prevent the publication of Defense Department documents relating to the Vietnam  War. In addition to involving Government controlled information, that case fell  squarely under our precedents holding that prior restraints on speech bear " 'a  heavy presumption against " constitutionality.' " Id., at 714. Indeed, it was  this presumption that caused Justices Stewart and White to join the 6-to-3 per  curiam decision. See id., at 730-731 (White, J., joined by Stewart, J.,  concurring) ("I concur in today's judgments, but only because of the concededly  extraordinary protection against prior restraints enjoyed by the press under our  constitutional system"). By no stretch of the imagination can the statutes at  issue here be dubbed "prior restraints." And the Court's "parallel reasoning"  from other inapposite cases fails to persuade. Ante, at 20.


89
Surely "the interest in individual privacy," ante, at 2, at its narrowest must embrace the right to be free from surreptitious eavesdropping on, and  involuntary broadcast of, our cellular telephone conversations. The Court  subordinates that right, not to the claims of those who themselves wish to  speak, but to the claims of those who wish to publish the intercepted  conversations of others. Congress' effort to balance the above claim to privacy  against a marginal claim to speak freely is thereby set at naught.



NOTES:


1
  See 18 U.S.C.  2511(1) (1994 ed. and Supp. V); Ala. Code 13A-11-30 et seq.  (1994); Alaska Stat. Ann. 42.20.300(d) (2000); Ark. Code Ann. 5-60-120 (1997);  Cal. Penal Code Ann. 631 (West 1999); Colo. Rev. Stat. 18-9-303 (2000); Del.  Code Ann., Tit. 11, 1336(b)(1) (1995); D. C. Code Ann. 23-542 (1996); Fla.  Stat. 934.03(1) (Supp. 2001); Ga. Code Ann. 16-11-66.1 (1996); Haw. Rev. Stat.  803-42 (1993); Idaho Code 18-6702 (1997); Ill. Comp. Stat., ch. 720,  5/14-2(b) (1999 Supp.); Iowa Code 808B.2 (1994); Kan. Stat. Ann. 21-4002  (1995); Ky. Rev. Stat. Ann. 526.060 (Michie 1999); La. Rev. Stat. Ann. 15:1303  (1992); Me. Rev. Stat. Ann., Tit. 15, 710(3) (Supp. 2000); Md. Cts. & Jud.  Proc. Code Ann. 10-402 (Supp. 2000); Mass. Gen. Laws 272:99(C)(3) (1997);  Mich. Comp. Laws Ann. 750.539e (West 1991); Minn. Stat. 626A.02 (2000); Mo.  Rev. Stat. 542.402 (2000); Neb. Rev. Stat. 86-702 (1999); Nev. Rev. Stat.  200.630 (1995); N. H. Rev. Stat. Ann. 570-A:2 (Supp. 2000); N. J. Stat. Ann.  2A:156A-3 (West Supp. 2000); N. M. Stat. Ann. 30-12-1 (1994); N. C. Gen. Stat.  15A-287 (1999); N. D. Cent. Code 12.1-15-02 (1997); Ohio Rev. Code Ann.  2933.52(A)(3) (1997); Okla. Stat., Tit. 13, 176.3 (2000 Supp.); Ore. Rev.  Stat. 165.540 (1997); 18 Pa. Cons. Stat. 5703 (2000); R. I. Gen. Laws  11-35-21 (2000); Tenn. Code Ann. 39-13-601 (1997); Tex. Penal Code Ann. 16.02  (Supp. 2001); Utah Code Ann. 77-23a-4 (1982); Va. Code Ann. 19.2-62 (1995); W.  Va. Code 62-1D-3 (2000); Wis. Stat. 968.31(1) (1994); Wyo. Stat. Ann. 7-3-602  (1995).


2
  "Electronic communication" is defined as "any transfer of signs, signals,  writing, images, sounds, data, or intelligence of any nature transmitted in  whole or in part by a wire, radio, electromagnetic, photoelectronic or  photooptical system." 18 U.S.C.  2510(12) (1994 ed., Supp. V).


3
  The one exception was Daily Mail, where reporters obtained the juvenile  defendant's name from witnesses to the crime. See 443 U.S., at 99. However, the  statute at issue there imposed a blanket prohibition on the publication of the  information. See id., at 98-99. In contrast, these antidisclosure provisions do  not prohibit publication so long as the information comes from a legal source.


4
  In 1986, to ensure that only the most culpable could face liability for  disclosure, Congress increased the scienter requirement from "willful" to  "intentional." 18 U.S.C.  2511(1)(c); see also S. Rep. No. 99-541, p. 6 (1986)  ("In order to underscore that the inadvertent reception of a protected communication is not a crime, the subcommittee changed the state of  mind requirement under [Title III] from 'willful' to 'intentional' ")


5
  Tellingly, we noted in Florida Star that "[t]o 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." 491 U.S., at 534; see  also id., at 535 ("[I]t is highly anomalous to sanction persons other than the  source of [the] release").


6
  The problem is pervasive because legal "radio scanners [may be] modified to  intercept cellular calls." S. Rep. No. 99-541, at 9. For example, the scanner at  issue in Boehner v. McDermott, 191 F.3d 463 (CADC 1999), had been recently  purchased at Radio Shack. See Thompson, 35 Am. Crim. L. Rev., at 152 (citing  Stratton, Scanner Wasn't Supposed to Pick up Call, But it Did, Orlando Sentinel,  Jan. 18, 1997, p. A15).


7
  In crafting the exclusionary rule, we did not first require empirical  evidence. See Elkins, 364 U.S., at 218 ("Empirical statistics are not available  to show that the inhabitants of states which follow the exclusionary rule suffer  less from lawless searches and seizures than do those of states which admit  evidence unlawfully obtained"). When it comes to this Court's awesome power to  strike down an Act of Congress as unconstitutional, it should not be "do as we  say, not as we do."


8
  The Court attempts to distinguish Ferber and Osborne on the ground that they  involved low-value speech, but this has nothing to do with the reasonableness of  the "dry up the market" theory. The Court also posits that Congress here could  simply have increased the penalty for intercepting cellular communications. See  ante, at 14. But the Court's back-seat legislative advice does nothing to  undermine the reasonableness of Congress' belief that prohibiting only the  initial interception would not effectively protect the privacy interests of  cellular telephone users.


9
  The Court observes that in many of the cases litigated under 2511(1), "the  person or persons intercepting the communication ha[ve] been known." Ante, at  15. Of the 206 cases cited in the appendices, 143 solely involved 2511(1)(a)  claims of wrongful interception-disclosure was not at issue. It is of course  unremarkable that intentional interception cases have not been pursued where the  identity of the eavesdropper was unknown. Of the 61 disclosure and use cases  with published facts brought under 2511(1)(c) and (d), 9 involved an unknown  or unproved eavesdropper, 1 involved a lawful pen register, and 5 involved  recordings that were not surreptitious. Thus, as relevant, 46 disclosure cases  involved known eavesdroppers. Whatever might be gleaned from this figure, the  Court is practicing voodoo statistics when it states that it undermines the "dry  up the market" theory. See ante, at 16, n. 17. These cases say absolutely  nothing about the interceptions and disclosures that have been deterred.


