191 F.3d 463 (D.C. Cir. 1999)
John A. Boehner, Appellantv.James A. McDermott, AppelleeUnited States of America, Intervenor for Appellant
No. 98-7156
United States Court of AppealsFOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued April 30, 1999Decided September 24, 1999

Appeal from the United States District Court for the District of Columbia(98cv00594)
Michael A. Carvin argued the cause for appellant.  With  him on the briefs was R. Ted Cruz.
Scott R. McIntosh, Attorney, U.S. Department of Justice,  argued the cause for interven or United States.  With him on  the briefs were Frank W. Hunger, Assistant Attorney General at the time the briefs were filed, David W. Ogden, Acting  Assistant Attorney General, William B. Schultz, Deputy Assistant Attorney General, and Douglas N. Letter, Litigation  Counsel.
Frank Cicero, Jr., argued the cause for appellee.  With him  on the brief were Christopher Landau and Daryl Joseffer.
Theodore J. Boutrous, Jr., argued the cause for amici  curiae The Washington Post Company, et al.  With him on  the brief were Seth M.M. Stodder, Mary Ann Werner, and  Jane Kirtley.
Before:  Ginsburg, Sentelle, and Randolph, Circuit  Judges.
Opinion for the Court filed by Circuit Judge Randolph.
Opinion filed by Circuit Judge Ginsburg concurring in the  judgment and in Parts I, II.B, and II.D (except the first and  last paragraphs) of the opinion for the Court.
Dissenting opinion filed by Circuit Judge Sentelle.
Randolph, Circuit Judge:


1
"Congress shall make no law ...  abridging the freedom of speech, or of the press."  U.S.  Const. amend. I.  A federal statute prohibits private parties  from intentionally intercepting wire, oral and electronic communications.  The law also forbids any person from disclosing  the contents of such a communication, if the person knew it  was illegally intercepted.  Is it part of "the freedom of  speech" for an individual to give a newspaper the tape  recording of a cellular telephone call he received from the  criminals who conducted the illegal eavesdropping?  That is  the ultimate question in this appeal from the district court's  dismissal of a complaint brought against the individual who  transferred the tape to the New York Times and other  newspapers.  The district court ruled that, as applied in this  case, the federal prohibition on disclosure violated the First  Amendment because the defendant "legally obtained" the tape recording, and because the tape contained conversations  relating to matters of "public concern." The United States has  intervened to defend the constitutionality of the statute.


2
* John A. Boehner, a Republican member of the House of  Representatives, representing the Eighth District of Ohio,  brought this action against James A. McDermott, a Democratic member of the House representing the Seventh District of Washington.  The following events are the focus of  the complaint.1


3
On December 21, 1996, Representative Boehner participated in a conference call with members of the Republican Party  leadership, including Representatives Dick Armey and Tom  DeLay, and then-Speaker of the House Newt Gingrich.  At  the time of the conversation, Gingrich was the subject of an  investigation by the House Committee on Standards of Official Conduct--the House Ethics Committee.  See In the  Matter of Representative Newt Gingrich, H.R. Rep. No. 105-1  (1997);  see also H.R. 31, 105th Cong. (1997) (adopting the  report).  Boehner was chairman of the House Republican  Conference.  The participants discussed strategy regarding  an expected Ethics Subcommittee announcement of Gingrich's agreement to accept a reprimand and to pay a fine in  exchange for the committee's promise not to hold a hearing.


4
Boehner was driving through northern Florida when he  joined the conference call.  He spoke from a cellular telephone in his car.  John and Alice Martin, who lived in  Florida, used a radio scanner to eavesdrop on the conversation.  They tape recorded the call and later met with Democratic Representative Karen Thurman of Florida to discuss  both the tape and the possibility of their receiving immunity  for their illegal interception of the call.


5
At Thurman's suggestion, the Martins personally delivered  the tape to Representative McDermott on January 8, 1997.McDermott was then the ranking Democratic member of the  House Ethics Committee.  The Martins' cover letter explained that the tape contained "a conference call heard over  a scanner," and closed with this statement:  "We understand  that we will be granted immunity."


6
The next day, January 9, 1997, McDermott gave copies of  the tape to the New York Times, the Atlanta JournalConstitution, and Roll Call.  Because the tape revealed Gingrich engaging in conduct that might have violated the terms  of the agreement, it had great news value for the three  newspapers, and each ran a story on the party leaders'  conversation.  The New York Times published its story on  the front page of its January 10, 1997 edition and included a  verbatim transcript of a portion of the conversation.


7
After the newspaper accounts appeared, the Martins publicly confessed their role in recording the conversation and  admitted giving a copy of their tape to McDermott.  On  January 13, 1997, McDermott provided his fellow Ethics  Committee members with the Martins' tape (or a copy of it)  and resigned from the committee.  The committee chairman,  Representative Nancy Johnson, forwarded the tape to the  Justice Department.  The government prosecuted the Martins for violating 18 U.S.C. §§ 2511(1)(a) and 2511(4)(b)(ii).


8
Under § 2511(1)(a), anyone who "intentionally intercepts,  endeavors to intercept, or procures any other person to  intercept or endeavor to intercept, any wire, oral, or electronic communication" is guilty of an offense punishable by fine or  imprisonment, or both.  18 U.S.C. §§ 2511(1)(a), 2511(4).The Martins entered guilty pleas on April 23, 1997, and were  each fined $500.


9
One year later Boehner brought this suit against McDermott, invoking the civil liability provisions of the Electronic  Communications Privacy Act.  See 18 U.S.C. § 2520.  His  complaint charged McDermott with violating 18 U.S.C.  § 2511(1)(c):


10
(1) Except as otherwise specifically provided in this chapter any person who --


11
* * *


12
(c) intentionally discloses, or endeavors to disclose, to any other person the contents of any wire, oral, or electronic communication, knowing or having reason to know that the information was obtained through the interception of a wire, oral, or electronic communication in violation of this subsection;


13
* * * shall be punished as provided in subsection (4) or shall be subject to suit as provided in subsection (5).


14
Claiming that McDermott had illegally disclosed the contents  of the conference call, knowing it to have been illegally  intercepted, Boehner sought statutory damages of $10,000  pursuant to 18 U.S.C. § 2520(c)(2)(B).2


15
McDermott moved to dismiss the complaint, arguing that  § 2511(1)(c), as applied to him, violated the free speech clause  of the First Amendment.  He claimed, and the district court  agreed, that the First Amendment "prohibits the punishment  under any of the statutes cited in the Complaint for the  disclosure of truthful and lawfully obtained information on a matter of substantial public concern."  Motion to Dismiss at  1.

II

16
* In mounting his First Amendment defense, McDermott  obviously thinks he engaged in speech, speech for which he  would suffer liability in damages if § 2511(1)(c) were applied  to him.  What speech?  A simple question, but crucial.  Too  bad McDermott devotes only one sentence of his brief to the  answer:  "Because the disclosure of information is unquestionably speech, these provisions [of federal and state law] impose  a naked prohibition on speech."  Brief for Appellee at 11.But those who expose private activity to public gaze are not  necessarily engaging in speech, let alone "the freedom of  speech."  Otherwise, one might as well say the Martins were  exercising their right of free speech when they personally  handed over the product of their crime to McDermott;  or  that they would have been engaging in free speech if they had  surreptitiously dropped the tape on his doorstep, or mailed it  to him anonymously in a plain wrapper.  Not even McDermott goes so far.  See, e.g., Oral Arg. Tr. at 41, 43.3  If the  Martins were not exercising their right of free speech, as  McDermott seems to concede, it is difficult to see why  McDermott was exercising his freedom of speech when he  gave copies of their tape to the newspapers.


17
At one point in his brief, McDermott asserts that "[t]his is  core political speech, and lies at the very heart of the First  Amendment."  Brief for Appellee at 45.  His assertion, however, deals with the contents of the tape.  The tape does indeed contain speech about political matters.  But the  speech is not McDermott's and § 2511(1)(c) does not render  him liable for anything anyone said on the recording.  As to  McDermott's speech, it is safe to assume that he said something when he arranged for delivery of the tapes to the  newspapers.  The New York Times in fact attributed several  statements to him:4  a "Democratic Congressman hostile to  Mr. Gingrich ... insisted that he not be identified further";the "Congressman said the tape had been given to him on  Wednesday by a couple who said they were from northern  Florida";  the Congressman "quoted them as saying it had  been recorded off a radio scanner ... about 9:45 A.M. on  Dec. 21."  In making these remarks McDermott was undoubtedly engaging in speech.  But neither these statements,  nor any other statements he may have made to the newspapers in connection with his delivery of the tape, are the basis  of the complaint.  McDermott's liability under § 2511(1)(c)  rests on the truth of two allegations:  that he "caused a copy  of the tape" to be given to the newspapers;  and that he "did  so intentionally and with knowledge and reason to know that  the recorded phone conversation had been illegally intercepted (as the cover letter on its face disclosed)."  Complaint p 20.Although the circumstances of McDermott's transactions with  the newspapers, including who said what to whom, may  become evidence at trial, it is his conduct in delivering the  tape that gives rise to his potential liability under  § 2511(1)(c).  McDermott's behavior in turning over the tapes  doubtless conveyed a message, expressing something about  him.  All behavior does.  But not all behavior comes within  the First Amendment.


18
"[E]ven on the assumption that there was [some] communicative element in" McDermott's conduct, the Supreme Court  has held that "when 'speech' and 'nonspeech' elements are  combined in the same course of conduct, a sufficiently important governmental interest in regulating the nonspeech element can justify incidental limitations on First Amendment  freedoms."  United States v. O'Brien, 391 U.S. 367, 376  (1968).  The O'Brien framework is the proper mode of First  Amendment analysis in this case.  McDermott's challenge is  only to the statute as it applies to his delivery of the tape to  newspapers.  Whether a different analysis would govern if,  for instance, McDermott violated § 2511(1)(c) by reading a  transcript of the tape in a news conference, is therefore a  question not presented here.  Nor should we be concerned  with whether § 2511(1)(c) would be constitutional as applied  to the newspapers who published the initial stories about the  illegally-intercepted conference call.  The focus must be on  McDermott's activity and on his activity alone.  See Hoffman  Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 495  (1982);  Parker v. Levy, 417 U.S. 733, 756 (1974);  United  States v. Raines, 362 U.S. 17, 21-22 (1960);  contrast Broadrick v. Oklahoma, 413 U.S. 601, 615 (1973).

B

19
In its modern iteration, the O'Brien analysis applies to  statutes containing generally applicable, content-neutral prohibitions on conduct that create incidental burdens on speech. See Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 642, 662  (1994);  Ward v. Rock Against Racism, 491 U.S. 781, 791  (1989);  Clark v. Community for Creative Non-Violence, 468  U.S. 288, 293 (1984).  Section 2511(1)(c) is a statute fitting  that description.  It is one of several provisions constituting  "a comprehensive statutory scheme dedicated to preserving  personal privacy by sharply limiting the circumstances under  which surveillance may be undertaken and its fruits disclosed."  Lam Lek Chong v. DEA, 929 F.2d 729, 733 (D.C.  Cir. 1991).  It prohibits the disclosure of all illegally intercepted communications, without regard to the substance of  the communication or the identity of the person who does the  disclosing.  It reveals no governmental interest in distinguishing between types of speech based on content.  It  neither favors nor disfavors any particular viewpoint.  To the  extent that the particular type of conduct § 2511(1)(c) addresses--"disclosure"--may entail constitutionally protected speech, the statute regulates it without reference to content. See Lam Lek Chong, 929 F.2d at 733;  see also Turner  Broad., 512 U.S. at 642-43;  R.A.V. v. St. Paul, 505 U.S. 377,  386 (1992);  Time Warner Entertainment Co. v. FCC, 93 F.3d  957, 969 (D.C. Cir. 1996) (per curiam).


20
The oft-repeated test laid down in O'Brien is as follows:


21
[A] government regulation is sufficiently justified if it is within the constitutional power of the Government;  if it furthers an important or substantial governmental inter-est;  if the governmental interest is unrelated to the suppression of free expression;  and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that inter-est.


22
391 U.S. at 377.


23
Here, the "substantial governmental interest" "unrelated to  the suppression of free expression" is evident.  Section  2511(1)(c), rather than impinging on speech, as McDermott  supposes, promotes the freedom of speech.  Eavesdroppers  destroy the privacy of conversations.  The greater the threat  of intrusion, the greater the inhibition on candid exchanges. Interception itself is damaging enough.  But the damage to  free speech is all the more severe when illegally intercepted  communications may be distributed with impunity.5  This is  why § 2511 does not merely prohibit the unauthorized interception of wire, oral and electronic communications.  It is  why the federal statute also forbids the use and disclosure of  the illegally intercepted communication.6  It is why, in certain circumstances, the law also punishes disclosure even if the  interception was itself legal, as when a law enforcement  official has conducted a wiretap pursuant to a court order. See 18 U.S.C. § 2511(1)(e).


24
In all of this it is well to remember that although the  "essential thrust of the First Amendment is to prohibit  improper restraints on the voluntary public expression of  ideas," there is "a concomitant freedom not to speak publicly,  which serves the same ultimate end as freedom of speech in  its affirmative aspect."  Harper & Row, Publishers, Inc. v.  Nation Enters., 471 U.S. 539, 559 (1985) (quoting with approval Estate of Hemingway v. Random House, Inc., 244  N.E.2d 250, 255 (N.Y. 1968));  see also Halperin v. Kissinger,  606 F.2d 1192, 1199 (D.C. Cir. 1979), aff'd, 452 U.S. 713 (1981)  (per curiam).  The freedom not to speak publicly, to speak  only privately, is violated whenever an illegally intercepted  conversation is revealed, and it is violated even if the person  who does the revealing is not the person who did the intercepting.7  For his part, McDermott correctly concedes that  the Martins could have been punished not only for intercepting the conference call, but also for giving the tape to him. See Oral Arg. Tr. at 41, 43, 53.  But as we have indicated, he  offers no good explanation why, if he had a First Amendment  right to disclose the call, the Martins did not.  Comparing the  Martins' conduct with McDermott's, one might rank the


25
Martins as more culpable.  Yet in terms of damage to the  privacy of conversations and to the freedom of speech,  McDermott's alleged actions had a far more devastating  impact.


26
There are other substantial government interests underlying § 2511(1)(c), interests best illustrated through a hypothetical.  Suppose Boehner had tape recorded his conference  call.8  Suppose as well that the Martins later break into  Boehner's office, steal the tape and give it to McDermott, who  then acts exactly as he is alleged to have acted here:  he  accepts the tape from the Martins and delivers it to the press. In the hypothetical, there is no doubt that if McDermott knew  how the Martins acquired the tape, he could be prosecuted  for receiving stolen property.  See D.C. Code Ann. § 22-3832.With respect to McDermott, it is hard to see any practical  constitutional distinction between the hypothetical and the  facts alleged here.  In the one case the Martins steal the  tape;  in the other, they illegally "seize" the conversation. See Katz v. United States, 389 U.S. 347 (1967).  In both  instances, McDermott knows of the illegality.  The contents  of both tapes are identical;  what McDermott does with the  tape is the same;  and in both cases McDermott knows the  Martins' are giving him something they acquired illegally. Receiving stolen property is punished in order to remove the  incentive to steal, to dry up the market for stolen goods.  See Wayne R. LaFave & Austin W. Scott, Jr., Criminal Law § 93,  at 692 (1972).  For a similar reason--that is, "to dry up the  market"--states have made distribution and possession of  child pornography criminal offenses.  Osborne v. Ohio, 495  U.S. 103, 110 (1990);  New York v. Ferber, 458 U.S. 747, 760  (1982).  And for the same reason Congress has forbidden the  disclosure of the contents of illegally intercepted communications.  The district court was quite right in thinking that  without § 2511(1)(c)'s prohibition on disclosure, the government would have "no means to prevent the disclosure of  private information, because criminals like the Martins can literally launder illegally intercepted information" and there  would be "almost no force to deter exposure of any intercepted secret."  Boehner v. McDermott, Civ. No. 98-594 (TFH),  1998 WL 436897, at *4 (D.D.C. July 28, 1998).


27
What we have just written also explains why whatever  incidental restriction on speech § 2511(1)(c) imposes, it is "no  greater than is essential to the furtherance of that interest"-the final consideration in the O'Brien formulation.  391 U.S.  at 377.  Unless disclosure is prohibited, there will be an  incentive for illegal interceptions;  and unless disclosure is  prohibited, the damage caused by an illegal interception will  be compounded.  It is not enough to prohibit disclosure only  by those who conduct the unlawful eavesdropping.  One  would not expect them to reveal publicly the contents of the  communication;  if they did so they would risk incriminating  themselves.  It was therefore "essential" for Congress to  impose upon third parties, that is, upon those not responsible  for the interception, a duty of nondisclosure.

C

28
As against the foregoing analysis, McDermott maintains  that he "lawfully obtained" the tape recording from the  Martins because he committed no offense in accepting it;  that  the tape contained truthful information of public concern;  and  that the First Amendment therefore prohibits holding him  liable for handing the tape (or copies of it) over to the  newspapers.9  He believes the following "limited First Amendment principle" controls:  "If a newspaper lawfully  obtains truthful information about a matter of public significance, then [the government] may not constitutionally punish  publication of the information, absent a need to further a  state interest of the highest order."  Florida Star v. B.J.F.,  491 U.S. 524, 533 (1989), quoting Smith v. Daily Mail Publ'g  Co., 443 U.S. 97, 103 (1979).10


29
The district court, believing that Florida Star left it no  other choice, reluctantly adopted McDermott's line of reasoning.  Reluctantly because the court thought these decisions  had forced it into an "illogical" interpretation of the First  Amendment.  Boehner, 1998 WL 436897, at *4.  McDermott's  theory was, the court thought, "a slippery one, as it not only  defends, but even encourages, the circumnavigation of wiretap statutes, which are designed to prevent the disclosure of  private conversations."  Id. at *3.  By accepting this theory,  the district court had rendered the government powerless "to  prevent disclosure of private information, because criminals  like the Martins can literally launder illegally intercepted  information."  Id.


30
There are many reasons for disagreeing with McDermott  and with the district court about the significance of Florida  Star as applied to this case.  But first the facts of Florida  Star.  A Florida statute made it unlawful to publish the name  of a rape victim "in any instrument of mass communication."  491 U.S. at 526 n.1.  The Sheriff's Department in Duval  County, Florida, mistakenly included a rape victim's name in its publicly available police blotter.  A Florida Star reporter  took down the victim's name, and the newspaper published it. The victim sued the Sheriff's Department and the newspaper  for violating the statute.  Before trial, the Sheriff's Department settled with the plaintiff.  A jury awarded damages  against the Florida Star and a state appellate court affirmed.


31
The Supreme Court sustained the newspaper's First  Amendment attack on the statute.  The Court believed the  newspaper had "lawfully obtained" the rape victim's name  because the government--in the form of the Sheriff's Department--had made this information available.  See id. at 53436.  The Court then explained why there was no "need" for  the state to forbid the mass media from publishing the  victim's name.  The government had provided the information to the media and thus could more effectively have  "policed itself" to prevent dissemination of the information. Id. at 538.  The statute contained no scienter requirement; and the press was entitled to assume the government "considered dissemination lawful," id. at 539, because the information  stemmed from a "government news release," id. at 538.  And  last, the statute was under inclusive, prohibiting publication  only in "instruments of mass communication," while not prohibiting revelation of the victim's identity through other  means.  Id. at 540.


32
A comparison of Florida Star with this case reveals far  more significant differences than similarities.  And it is critical to recognize each of those differences.  The Supreme  Court did not intend to declare a universal First Amendment  principle in Florida Star.  The several phrases McDermott  has fastened upon are tempered, not only by other language  in the opinion, but also by the context in which they were  written.  Throughout, the Court stresses that it meant its  decision to be narrow.  The state of the law in this area is  "somewhat uncharted," id. at 531 n.5;  the "future may bring  scenarios which prudence counsels our not resolving anticipatorily," id. at 532;  the Court is following the practice of  resolving "this conflict only as it arose in a discrete factual  context," id. at 531;  "[o]ur holding today is limited," id. at  541.


33
Let us now compare the statute in Florida Star with  § 2511(1)(c).  One could say, as McDermott seems to, that  both provisions are alike in that both prohibit the "disclosure"  of "information."  But when we dig more deeply many critical  differences appear.  To ignore them would be to convert  Florida Star from a narrow decision into an expansive one. Consider first exactly what the statutes forbid.  The Florida  statute prohibited the act of printing, publishing or broadcasting "in any instrument of mass communication."  491 U.S. at  526 n.1 (quoting Fla. Stat. § 794.03 (1987)).  The federal law  is not, however, limited to those means of disclosure and it is  not aimed at the press.  Anyone who discloses, or endeavors  to disclose, illegally intercepted communications knowing of  the illegality violates § 2511(1)(c).  The objectives of the laws  are different too.  The Florida statute sought to protect the  privacy of rape victims.  See 491 U.S. at 537.  The federal law  seeks to protect the privacy of communications.  See, e.g.,  Gelbard v. United States, 408 U.S. 41, 51-52 (1972).  In that  respect, the federal law--unlike the Florida statute--advances First Amendment interests for reasons already mentioned.  See supra pp. 468-69.  The Florida statute dealt with  information in the government's possession;  release of the  information was therefore in the government's control.  See  491 U.S. at 534-36, 538-39.  The federal law deals with  communications between private persons, the content of  which will not be known to the government, unless it has  complied with the rigorous procedures needed to obtain a  court order allowing electronic surveillance for law enforcement purposes.  See 18 U.S.C. § 2518;  see also id.  §§ 2511(2)(b)-(f), 2515-2517, 2519.  The state law in Florida  Star (and in Daily Mail) "defined the content of publications  that would trigger liability."  Cohen v. Cowles Media Co., 501  U.S. 663, 670-71 (1991).  Here, the federal prohibition on  disclosure is not dependent on the content of the communication.  And of greatest importance, § 2511(1)(c) prohibits disclosure of the communication only if the original interception  was itself illegal and only if the person charged with unlawfully disclosing its contents knew of the illegality.  See 18 U.S.C.  § 2511(1)(c).  In contrast, the Florida statute had no scienter requirement, see Florida Star, 491 U.S. at 539, and the  government lawfully acquired the information--the victim's  identity--while investigating a crime.


34
This last distinction must be underscored because the  Supreme Court in Florida Star attached such great significance to it.  After citing cases for the proposition that when  "information is entrusted to the government, a less drastic  means than punishing truthful publication almost always exists for guarding against the dissemination of private facts,"  the Court dropped a footnote:


35
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, government may ever punish not only the unlawful acquisition, but the ensuing publication as well.  This issue was raised but not definitively resolved in New York Times Co. v. Unit-ed States, 403 U.S. 713 (1971), and reserved in Land-mark Communications, 435 U.S. [829,] 837 [(1978)]. We have no occasion to address it here.


36
491 U.S. at 535 n.8.


37
To understand this footnote correctly one must remember  that in the newspaper business, sources provide information,  but newspapers, not sources, are the publishers.  Suppose a  "source" breaks into an office, steals documents, gives them  to a newspaper and the newspaper, knowing the documents  were stolen, publishes them in violation of a state or federal  law.  We read footnote 8 to mean that the "Daily Mail  principle" would not determine if the newspaper had a First  Amendment right to publish the stolen documents.  What  takes this hypothetical case out of Daily Mail and Florida  Star?  The fact that the documents are the product of a  crime, committed by a "source."  McDermott thinks he  stands in the shoes of the "newspaper" in Florida Star.  He  treats a newspaper's "publication" as the equivalent of his  disclosure.  Given his press analogy, the Martins played the  role of McDermott's "source."  It follows from footnote 8 that  the "Daily Mail principle" and the decision in Florida Star  do not "settle" this case.


38
McDermott's effort to explain away the Florida Star footnote is thoroughly unconvincing.  He proposes that footnote 8  "simply reserved the question whether a person who discloses  unlawfully acquired information is subject to punishment only  for the unlawful acquisition or for both the unlawful acquisition and the disclosure."  Brief for Appellee at 31.  In other  words, all the Court left open is the question whether the  Martins could have been punished not only for intercepting  the call, in violation of § 2511(1)(a), but also for giving the  tape to McDermott, in violation of § 2511(1)(c).  This cannot  be correct.  For one thing, the Court did not have before it a  case in which the published information--the rape victim's  name--had been "acquired unlawfully ... by a source";  the  Sheriff's Department was the newspaper's "source" and it  acquired the victim's name both lawfully and with her consent.  Also, given the facts of Florida Star, and particularly  in light of the Court's resolve to confine the opinion to the  "discrete factual context" of the case, 491 U.S. at 531, the  Court necessarily did not decide the question before us.  For  another thing, McDermott's reading of the footnote could  make sense if and only if a "source" first illegally obtained  information and then did the "ensuing publication."  In the  context of the footnote, this is farfetched indeed.  Again, the  newspapers' sources do not publish;  the newspapers do.  The  point of the footnote is that regardless whether the illegality  is committed by a newspaper's reporter or by a source, if the  newspaper publishes the illegally obtained information, the  First Amendment may not shield it from punishment.  The  Court came close to holding as much in Branzburg v. Hayes,  408 U.S. 665, 691-92 (1972):  no matter how great "the  interest in securing the news," the First Amendment "does  not reach so far as to override the interest of the public in  ensuring that neither reporter nor source is invading the  rights of other citizens through reprehensible conduct forbidden to other persons."


39
Furthermore, if McDermott were right about the footnote,  there is no explaining the Court's citation to the "Pentagon  Papers" case--New York Times Co. v. United States, 403  U.S. 713 (1971).  At the time of that decision, everyone knew that a "source" (later identified as Daniel Ellsberg, a researcher at the RAND Corporation on contract with the  Department of Defense) had illegally obtained copies of classified Defense Department documents.  See generally David  Rudenstine, The Day the Presses Stopped:  A History of the  Pentagon Papers Case 33-65 (1996).11  The issue before the  Court was whether enjoining the New York Times and the  Washington Post from publishing the material amounted to a  prior restraint in violation of the First Amendment.  As the  Florida Star footnote stated, the Court left unresolved the  question whether the Post and the Times could be punished  for later publishing the documents Ellsberg had illegally  acquired.12  In short, McDermott's reading of footnote 8 in Florida Star is flatly contradicted by the Court's citation to  the Pentagon Papers case, by the Court's distinction between  a source and a newspaper, and by the Court's expressed  intent to confine its Florida Star opinion strictly to the facts  of the case.  Given footnote 8, McDermott is not correct in  arguing that the First Amendment precludes punishing an  individual for disclosing information illegally transmitted to  him, so long as the individual violated no law in receiving the  information.  Brief for Appellee at 30.13


40
McDermott also misreads Landmark Communications,  Inc. v. Virginia, 435 U.S. 829, 837 (1978), which the Florida  Star footnote also cited.  In that case a newspaper was  indicted for publishing an article about a pending investigation of a state judge.14  McDermott is right in describing  what Landmark did not decide.  The Court wrote:  "We are  not here concerned with the possible applicability of the  statute to one who secures the information by illegal means  and thereafter divulges it."  Id.  But McDermott is wrong in  describing what Landmark did decide.  The Court did not, as  he contends, determine that a newspaper has a First Amendment right to publish illegally acquired information.  The  record in Landmark contained no evidence regarding who  supplied the newspaper with the information or how they  obtained it.  See Landmark Communications, Inc. v. Commonwealth, 233 S.E.2d 120, 123 n.4 (Va. 1977) ("The record is  silent, however, concerning the manner in which Landmark  secured the information.").  The Court therefore decided only  that "the Commonwealth's interests advanced by the imposition of criminal sanctions [were] insufficient to justify the  actual and potential encroachments on freedom of speech and of the press which follow therefrom."  Landmark, 435 U.S. at  838.15


41
Footnote 8 of Florida Star, and the marked contrast  between § 2511(1)(c) and the Florida rape victim statute, are  enough to indicate that Florida Star cannot control this case. But this discussion should not end without mention of an  additional basis for rejecting the district court's analysis. The Supreme Court said in Florida Star that its application  of the Daily Mail principle rested on three considerations. Not one of them is present here.


42
The Court first pointed out that "when information is  entrusted to the government, a less drastic means than  punishing truthful publication almost always exists for guarding against the dissemination of private facts."  491 U.S. at  534.  In this case, the content of the conference call was not  information "entrusted to the government."  It was instead-in the Supreme Court's words--"sensitive information" in  "private hands" and, therefore, if the government forbids "its  nonconsensual acquisition," as it has in § 2511(1)(a), "the  publication of any information so acquired" is "outside the  Daily Mail principle."  Id.  "The right to speak and publish  does not," in other words, "carry with it the unrestrained  right to gather information."  Zemel v. Rusk, 381 U.S. 1, 17  (1965).


43
"A second consideration undergirding the Daily Mail principle is the fact that punishing the press for its dissemination  of information which is already publicly available is relatively  unlikely to advance the interests in the service of which the  State seeks to act."  Id. at 535.16  That consideration too is absent here.  The conference call was not "already publicly  available" when McDermott gave the tape to the newspapers. Apart from the participants (and those they informed), the  contents of the call were then known only to a select few,  including the Martins and McDermott.  And they--the Martins and McDermott--gained their knowledge of the call only  through illegal transactions.


44
"And" is emphasized in the last sentence because throughout this litigation, McDermott has attempted to portray himself as an innocent.  Again and again he insists that he  "lawfully obtained" the tape recording from the Martins.  By  this he means that he broke no law in taking possession of the  tape.  But this is hardly certain.  The Martins violated  § 2511 not once, but twice--first when they intercepted the  call and second when they disclosed it to McDermott.  By  accepting the tape from the Martins, McDermott participated  in their illegal conduct.  That transaction may have involved a  quid pro quo.  When they transmitted the tape to McDermott, the Martins expressed their understanding that they  would be receiving immunity for their illegal conduct.  The  inference is that someone promised this in return for the  tape.  Who?  The obvious candidate is McDermott, or someone acting in concert with him.  One need not go so far as to  say that the Martins and McDermott entered into a conspiracy, in violation of 18 U.S.C. § 371.  It is enough to point out,  as Boehner does, that in receiving the tape, McDermott took  part in an illegal transaction.  See Reply Brief for Appellant  at 11.  If he did not thereby break the law, he was at least  skirting the edge.


45
The Florida Star Court's third reason for applying the  "Daily Mail principle" was "the 'timidity and self-censorship' which may result from allowing the media to be punished for  publishing" "information released, without qualification, by  the government."  491 U.S. at 535-36.  McDermott is not the  "Media";  the government did not release this information; and it would not be out of "timidity [or] self-censorship" for  someone to alert the authorities after being handed evidence  of a crime by those who perpetrated the offense.  It would  instead be an act worthy of a responsible citizen.  See 18  U.S.C. § 3 (accessory after the fact);  18 U.S.C. § 4 (misprision of a felony).


46
In short, the illegal activity of the Martins, of which  McDermott was well aware when he took possession of the  tape, takes McDermott's actions "outside of the Daily Mail  principle" and the Florida Star line of cases.  491 U.S. at  534.17


47
Beyond those cases, one can find no firm First Amendment  right to disclose information simply because the information  was, in the first instance, legally acquired by the person who  revealed it.  For instance, a grand juror who lawfully obtains  knowledge of the testimony of witnesses may not disclose that  testimony to anyone else.  See Fed. R. Crim. P. 6(e);  see In re  Motions of Dow Jones & Co., 142 F.3d 496, 499-500 (D.C. Cir.  1998).  There appears to be no constitutional difficulty with  laws prohibiting the disclosure of lawfully obtained trade  secrets or with laws protecting proprietary interests in performances.  See Zacchini v. Scripps-Howard Broad. Co., 433  U.S. 562, 577-79 & n.13 (1977).  Congress may provide  remedies for the unauthorized publication of copyrighted  material even if the publisher broke no law in receiving the material.  See Harper & Row, 471 U.S. at 555-60.  In  discovery, litigants lawfully acquire private information from  their opponents.  This does not mean the First Amendment  precludes a court from issuing a protective order to prevent  disclosure of that information.  See Seattle Times Co. v.  Rhinehart, 467 U.S. 20, 31, 36-37 (1984).  Courts may enforce  a reporter's promise not to publish the lawfully obtained  name of a confidential informant.  See Cohen, 501 U.S. at  669-72;  see also Snepp v. United States, 444 U.S. 507 (1980)  (per curiam) (enforcing CIA agent's employment agreement  to submit his writings for prepublication review).  And a law  enforcement official who conducts a wiretap or a judge who  authorizes the interception has no First Amendment right to  disclose the contents of the intercepted call or the existence of  the electronic surveillance.  United States v. Aguilar, 515  U.S. 593, 605 (1995).18


48
One might try to distinguish these cases on the basis that  in each there was some pre-existing duty not to reveal the information lawfully received.  McDermott makes the attempt.  In each of these cases, he says, "a person or entity  obtains confidential information pursuant to a concomitant  duty of non-disclosure, and the First Amendment does not  preclude the enforcement of that duty."  Brief for Appellee at  20.  But this is no distinction at all.  McDermott too obtained  the tape under a duty of non-disclosure.  In his case the duty  arose from a statute--s 2511(1)(c).  The same was true in  Harper & Row, the only difference being that the duty there  stemmed from the copyright laws.  It is true that Congressional authority to pass copyright laws is provided specifically  in the Constitution (Article I, § 8) and that copyright itself  serves as an "engine of free expression."  Harper & Row, 471  U.S. at 558.  But much the same may be said of § 2511:  the  Commerce Clause of the Constitution gave Congress the  power to regulate interstate communications, and § 2511,  including § 2511(1)(c), promotes free expression.

D

49
Our dissenting colleague finds it difficult to draw any lines  between McDermott's disclosure of the tape and a newspaper's publication of the contents of the illegally acquired  conversation.  One line, clearly drawn in this case, is the line  between conduct and speech.  When a newspaper publishes,  it engages in speech.  In each of the cases our colleague  discusses--in Cox Broadcasting, in Oklahoma Publishing, in  Daily Mail, and in Florida Star19--there was no doubt the  defendant engaged in speech for which it was held liable.  As  explained earlier, here there is doubt, very real doubt.20  It is McDermott's conduct in handing over the tape to the newspapers, not anything he wrote or said, for which Boehner seeks  recovery under § 2511.  And because we are dealing with  conduct, McDermott's case falls squarely within the Supreme  Court's O'Brien analysis.  Whether the statute would be  constitutional as applied to a newspaper who published excerpts from the tape--who, in other words, engaged in  speech--thus raises issues not before us.


50
Our dissenting colleague also thinks the statute "burdens  speech based on its content--that is [§ 2511(1)(c) forbids] its  publication because it contains information obtained at an  earlier time in an illicit fashion."  Dissenting op. at 8. One  might as well say that prosecuting a dealer in stolen books  burdens his speech on the basis of the contents of the books.  That of course would be silly, but as far as content discrimination is concerned, there is no relevant difference here.  We  have already explained why McDermott's liability under  § 2511(1)(c) does not turn on who said what during the  conference call.  McDermott would have violated the law if he  had handed over the tape of an illegally intercepted communication between a husband and wife, or an investor and  stockbroker, or a judge and law clerk.  Each such conversation has in common that someone violated federal law to  intercept it, but this relates to the method of acquisition not  the contents of the communication.  In all of this, it is  important to keep McDermott's defense firmly in mind--he  claims that § 2511(1)(c) unconstitutionally burdens his speech  in this case.  One cannot possibly evaluate that claim without  making the effort to identify precisely what McDermott said,  or wrote, or did to incur liability.  Our dissenting colleague  has not made the effort, which may be why he has fallen into  the trap of equating the conversation on the tape with the  contents of McDermott's speech.


51
Our colleague cannot understand why Congress thought it  necessary to prohibit not only the interception of communications, but also their disclosure.  Dissenting op. at 9.  The reasons are apparent.  One is that prohibiting disclosure  furthers the freedom of speech, and reduces the damage  caused by unlawful eavesdropping.  Another is that prohibiting disclosure removes an incentive for illegal interceptions. But in our colleague's judgment, disclosure should never be  prohibited because illegal political espionage might uncover  misdeeds that would otherwise go undetected.  Dissenting op.  at 6. This is the old ends-justifies-the-means rationale. Worse still, it is a rationale willing to sacrifice everyone's  freedom not to have their private conversations revealed to  the world, because some criminal at some time might illegally  "seize" some politician's incriminating conversation.


52
Finally, our colleague believes that "the First Amendment  permits the government to enjoin or punish the release of  information by persons who have voluntarily entered into  positions requiring them to treat the information with confidentiality."  Dissenting op. at 9.  That describes this case  perfectly.  McDermott "voluntarily" entered into just such a  position when he accepted the illicit tape from the Martins. At that point he had a duty, if not of "confidentiality," then of  non-disclosure.  The duty stemmed of course from every  citizen's responsibility to obey the law, of which § 2511(1)(c)  is a part.


53
* * *


54
For the reasons stated, we hold that § 2511(1)(c) and the  Florida statute, see supra note 2, are not unconstitutional as  applied in this case.  Accordingly, the judgment of the district  court is reversed and the case is remanded.


55
So ordered.



Notes:


1
 Because this matter comes before the court as an appeal of the  district court's grant of a motion to dismiss, we take as true the  allegations made by Boehner in his complaint.  See Edmondson &  Gallagher v. Alban Towers Tenants Ass'n, 48 F.3d 1260, 1263 (D.C.  Cir. 1995).


2
 In a separate count, Boehner brought a claim under Fla. Stat.  Ann. § 934.03(1)(c)--which, in relevant respects, is identical to 18  U.S.C. § 2511(1)(c).  Because our analysis of the two statutes will  be the same with respect to McDermott's First Amendment claim,  whenever this opinion refers to the federal statute, we intend to  include the state statute as well.
In his motion to dismiss, McDermott also argued that the Florida  statute could not apply to his conduct because his alleged actions  occurred outside the state's borders.  Because the district court  dismissed the complaint on other grounds, it did not address this  argument.  See Boehner v. McDermott, Civ. No. 98-594 (TFH),  1998 WL 436897, at *3 n.2 (D.D.C. July 28, 1998).


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


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


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


6
 In addition to Florida, forty-four other states and the District of  Columbia prohibit not only the interception of electronic communications, but also the disclosure of those communications by persons  not acting under color of law.  Most of these statutes mirror the  wording of 18 U.S.C. § 2511.  See Ala. Code §§ 13A-11-31,  13A-11-35 (1994);  Alaska Stat. §§ 42.20.300 to 42.20.330 (Michie  1989 & Supp. 1995);  Ariz. Rev. Stat. Ann. §§ 13-3005, 13-3006  (West 1989) (limiting criminal disclosure liability to telecommunications employees and those acting in concert with them);  Cal. Penal  Code §§ 631, 632 (West 1999);  Colo. Rev. Stat. § 18-9-303 (1986 &  Supp. 1995);  Conn. Gen. Stat. §§ 53a-187, 53a-188, 53a-189, 54-41r  (1994) (allowing civil recovery from any unauthorized discloser, but  limiting criminal penalties to telecommunications employees and  those acting in concert with them);  Del. Code Ann. tit. 11, § 1336  (1996);  D.C. Code Ann. §§ 23-542, 23-554 (1996);  Ga. Code Ann.  §§ 16-11-62, 16-11-66.1 (1994);  Haw. Rev. Stat. § 803-42 (1995);Idaho Code § 18-6702 (1996);  720 Ill. Comp. Stat. Ann. 5/14-2  (1993);  Ind. Code Ann. § 35-45-2-4 (West 1994) (limiting criminal  disclosure liability to telecommunications employees);  Iowa Code  §§ 808B.2, 808B.8 (1994), as amended by Act of Apr. 28, 1999, 1999  Iowa Legis. Serv. S.F. 309 (West);  Kan. Stat. Ann. § 21-4002  (1996);  Ky. Rev. Stat. Ann. §§ 526.020, 526.060 (Michie 1998);  La.  Rev. Stat. Ann. §§ 15:1303, 15:1312 (West 1992);  Me. Rev. Stat.  Ann. tit. 15, §§ 710, 711 (West 1998);  Md. Code Ann., Cts. & Jud.  Proc. § 10-402 (1998);  Mass. Gen. Laws Ann. ch. 272, § 99(c) (West  1990);  Mich. Comp. Laws Ann. §§ 750.539c, 750.539e, 750.539h (West  1991 &  Supp. 1995);  Minn. Stat. Ann. §§ 626A.02, 626A.13 (West  1998);  Mo. Rev. Stat. §§ 542.402, 542.418 (1996);  Mont. Code Ann.  § 45-8-10 213 (1997);  Neb. Rev. Stat. §§ 86-702, 86-707.02 (1995);Nev. Rev. Stat. §§ 200.620, 200.630, 200.650, 200.690 (1994);  N.H.  Rev. Stat. Ann. § 570-A:2 (1995);  N.J. Stat. Ann. §§ 2A-156A-3,  2A-156A-24 (West 1985 & Supp. 1999);  N.M. Stat. Ann.  §§ 30-12-14 1, 30-12-11 (Michie 1994);  N.Y. Penal Law §§ 250.05,  250.25 (McKinney 1989 & Supp. 1995);  N.C. Stat. Ann. § 15A-287  (1996);  N.D. Cent. Code § 12.1-15-02 (1994);  Ohio Rev. Code Ann.  §§ 2933.52, 2933.65 (Banks-Baldwin 1998) (prohibiting interception  and use, authorizing civil damages for interception, disclosure, and  use);  Okla. Stat. Ann. tit. 13, §§ 176.2 to 176.5 (West 1994);  Or.  Rev. Stat. §§ 165.540, 165.543 (1998);  18 Pa. Cons. Stat. Ann.  §§ 5703, 5725 (West 1999);  R.I. Gen. Laws § 11-35-21 (1998);Tenn. Code Ann. §§ 39-13-601 to 39-13-603 (1994);  Tex. Penal  Code Ann. §§ 16.02, 16.05 (West 1994);  Utah Code Ann.  §§ 77-23a-4, 77-23a-11 (1994);  Va. Code Ann. §§ 19.2-62, 19.2-69  (Michie 1990);  W.Va. Code §§ 62-1D-3, 62-1D-12 (1990);  Wis. Stat. Ann. § 968.31 (West 1985 & Supp. 1999);  Wyo. Stat.  §§ 7-3-602, 7-3-609 (1987);  see also Russell G. Donaldson, Annotation, Construction and application of state statutes authorizing  civil cause of action by person whose wire or oral communication  is intercepted, disclosed, or used in violation of statutes, 33  A.L.R.4th 506 (1998).  Arkansas does not separately prohibit the  disclosure of intercepted communications, but its laws achieve a  similar effect by making it a crime "to record or possess a recording  of such communication."  Ark. Code Ann. § 5-60-120(a) (Michie  1994).


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


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


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


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


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


12
 Justice White, joined by Justice Stewart, put it this way in his  concurring opinion:
The Criminal Code contains numerous provisions potentially relevant to these cases....  If any of the material here at issue is of [the kind described in 18 U.S.C. § 797 or § 798], the newspapers are presumably now on full notice of the position of the United States and must face the consequences if they publish.  I would have no difficulty in sustaining convictions under these sections on facts that would not justify the intervention of equity and the imposition of a prior restraint.403 U.S. at 735-37 (White, J., concurring) (footnotes omitted);  see  also id. at 730 (Stewart, J., joined by White, J., concurring) (noting  that "several [criminal laws] are of very colorable relevance to the  apparent circumstances in these cases" and acknowledging the  possibility of future criminal or civil proceedings);  id. at 744-45  (Marshall, J., concurring) (noting that "equity will not enjoin the  commission of a crime" and identifying two statutes under which "a  good-faith prosecution could have been instituted");  id. at 752  (Burger, C.J., dissenting) (expressly agreeing with Justice White's  comments concerning "penal sanctions");  id. at 759 (Blackmun, J.,  dissenting) (expressing "substantial accord" with Justice White's  comments concerning criminal sanctions).  In dissent, Justice Harlan, joined by Chief Justice Burger and Justice Blackmun, listed  among "questions [which] should have been faced"--"Whether the  newspapers are entitled to retain and use the documents notwithstanding the seemingly uncontested facts that the documents, or the  originals of which they are duplicates, were purloined from the  Government's possession and that the newspapers received them  with knowledge that they had been feloniously acquired."  Id. at  753-54 (Harlan, J., dissenting) (citing Liberty Lobby, Inc. v. Pearson, 390 F.2d 489 (D.C. Cir. 1967, amended 1968) (holding that  plaintiffs were not entitled to a preliminary injunction)).


13
 McDermott also relies on the following passage in Florida Star:
[U]nder Florida law, police reports which reveal the identity of the victim of a sexual offense are not among the matters of"public record" which the public, by law, is entitled to inspect....  But the fact that state officials are not required to disclose such reports does not make it unlawful for a newspaper to receive them when furnished by the government.  Nor does the fact that the Department apparently failed to fulfill its obligation under [the Florida statute] not to "cause or allow to be ... published" the name of a sexual offense victim make the newspaper's ensuing receipt of this information unlawful. Even assuming the Constitution permitted a State to proscribe receipt of information, Florida has not taken this step.491 U.S. at 536.  It appears to us that the Court intended to confine  these remarks to information "furnished by the government."  Id. The quoted passage follows the Court's point, made in the previous  paragraph, that "depriving protection to those who rely on the  government's implied representations of the lawfulness of dissemination, would force upon the media the onerous obligation of sifting  through government press releases, reports, and pronouncements  to prune out material arguably unlawful for publication."  Id.


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


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


16
 The Florida Star Court described the Daily Mail formulation  as a "synthesis of prior cases involving attempts to punish truthful  publication."  491 U.S. at 533.  In two of those cases--Oklahoma  Publishing Co. v. Oklahoma County District Court, 430 U.S. 308  (1977), and Cox Broadcasting Corp. v. Cohn, 420 U.S. 469 (1975)-the published information had, like the information in Florida Star,  been placed in the public domain by the government.  In Daily  Mail, the newspapers had "obtained [the information] from witnesses, the police, and a local prosecutor," 491 U.S. at 531, and the  state sought to punish the printing of the information after it had  already been broadcast on the radio.  See Daily Mail, 443 U.S. at  104-05.


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


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


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


20
 It is good that our dissenting colleague believes the press has  no greater First Amendment rights than anyone else.  The Supreme Court agrees with him.  So do we.  See New York Times Co.  v. Sullivan, 376 U.S. 254, 265-66 (1964);  First Nat'l Bank of Boston v. Bellotti, 435 U.S. 765, 777 (1978);  Davis v. Schuchat, 510 F.2d  731, 734 n.3 (D.C. Cir. 1975).



56
Opinion filed by Circuit Judge Ginsburg concurring in the  judgment and in Parts I, II.B, and II.D (except the first and  last paragraphs) of the opinion for the Court:


57
Although I agree that § 2511(1)(c)* is not unconstitutional  as applied in this case, I find it unnecessary, in order to reach that conclusion, to address a number of the questions addressed by Judge Randolph.  Specifically, I assume rather  than decide that (1) McDermott's delivery of the tape to the  newspapers constitutes speech protected by the First Amendment to the Constitution of the United States--a proposition  that no party to the case disputes;  and (2) the holding of  Florida Star, namely, that publication of "lawfully obtain[ed,]  truthful information about a matter of public significance ...  may not constitutionally [be] punish[ed] ... absent a need to  further a state interest of the highest order," 491 U.S. 524,  533 (1989) (quoting Smith v. Daily Mail Publ'g Co., 443 U.S.  97, 103 (1979)), applies in principle to this case.  Because  McDermott did not in fact lawfully obtain the tape, however,  he may be punished under § 2511(1)(c), as he concedes, if the  statute as applied to him survives intermediate scrutiny.  I  conclude it does for the reasons stated in the opinion for the  Court.


58
Although by its terms Florida Star does not apply to all  cases involving privately held information, see 491 U.S. at 534  ("To the extent sensitive information rests in private hands,  the government may under some circumstances forbid its  non-consensual acquisition, thereby bringing outside of the  Daily Mail principle the publication of any information so  acquired"), we may assume, as McDermott argues, that Florida Star does apply here.  Therefore, there is no need to  decide whether "publication," as used in footnote 8 of that  case, must mean "publication by the media" and cannot mean  "divulged by an individual," as it does in the context of libel  law.  See Op. at 17-22.  Nor need we delve into the ambiguities in the Court's dictum regarding privately held information--under what circumstances?  what is "sensitive information"?--because even if Florida Star applies to McDermott's  dissemination of the privately held information contained in the illegal wiretap, he did not lawfully acquire that information.  McDermott therefore does not satisfy an essential  element of the Florida Star test.  See 491 U.S. at 536 ("The  first inquiry is whether the newspaper 'lawfully obtain[ed]  [the] information' ").


59
Indeed, McDermott concedes that the Martins, who violated § 2511(1)(a) in acquiring the information they passed on to  him, are not protected by the principle of Florida Star.  See  Op. at 11.  Nonetheless, he argues that he lawfully obtained  the tape from them because no federal statute prohibits  receiving the contents of an illegal wiretap.  That does not  mean, however, that McDermott "lawfully obtain[ed]" the  information.  Though the Congress has not prohibited the  receipt of information obtained by means of an illegal wiretap,  it has prohibited the intentional and knowing disclosure of the  contents of such a wiretap.  Not only was the transaction in  which McDermott obtained the tape therefore illegal--albeit  only the Martins could be punished for effectuating it--but  McDermott knew the transaction was illegal at the time he  entered into it.  See Op. at 4, 24.  One who obtains information in an illegal transaction, with full knowledge the transaction is illegal, has not "lawfully obtain[ed]" that information in  any meaningful sense.**  And the Court's decision in Florida  Star was not an exercise in empty formalism.  See Op. at 15.


60
McDermott points nonetheless to this passage in Florida  Star:


61
[T]hat the [Police] Department apparently failed to fulfill its obligation under [state law] not to "cause or allow to be ... published" the name of a sexual offense victim [does not] make the newspaper's n suing receipt of this information unlawful.  Even assuming the Constitution permitted a State to proscribe receipt of information, Florida has not taken this step.


62
491 U.S. at 536 (emphasis in original).  The Court's reference  to a State "proscrib[ing] receipt of information" must be read  in light of Florida's decision not to prohibit all disclosures of  the name of a rape victim.  See id. at 540 (noting that statute  prohibits only publication in mass media, but "does not prohibit the spread by other means of the identities of victims of  sexual offenses").  Accordingly, the transaction in which the  newspaper obtained the name was not illegal per se;  if the  newspaper had not later published the name, the police  department would have violated no law.  By contrast, the  Congress prohibited the transaction in which McDermott  obtained the tape, without regard to whether its contents  were subsequently published as a result.


63
In any event, as noted in the opinion for the Court at 20-21  n.13, the remarks upon which McDermott relies are apparently confined to information furnished by the Government.  The  Court recognized in Florida Star that when information is in  the hands of the Government "a less drastic means than  punishing truthful publication almost always exists for guarding against the dissemination of private facts."  491 U.S. at  534.  When sensitive information is in private hands, however, the same cannot be said;  the Government has at once less  power to prevent non-consensual acquisition of the information  and more need to prohibit its subsequent dissemination,  whether by the thief or by one such as McDermott who  received it from the thief.  Cf. id.


64
In sum, nothing in Florida Star requires us to accept  McDermott's claim that he "lawfully obtain[ed]" the tape  simply because no statute prohibited his receiving it.  Nor  does McDermott provide us with any reason to extend Florida Star in a manner that, as the district court put it, permits  "a criminal [to] launder the stains off illegally obtained property simply by giving it to someone else, when that other  person is aware of its origins."  Boehner v. McDermott, No.  Civ. 98-594, 1998 WL 436897, at *4 (D. D.C. July 28, 1998).  I  therefore conclude only that one does not "lawfully obtain[ ]," within the intendment of that phrase in Florida Star, information acquired in a transaction one knows at the time to be  illegal.  See United States v. Riggs, 743 F. Supp. 556, 559  (N.D. Ill. 1990) (criminal defendant who "did not actually steal  the [information, but] was completely aware that it was stolen  when he received it" did not "lawfully obtain[ ]" it).


65
McDermott concedes, and both Boehner and the Government agree, that if Florida Star does not require the application of strict scrutiny in this case, then we should apply at  most intermediate scrutiny.  I agree the statute passes that  test for the reasons given in the opinion for the Court at 8-13.



Notes:


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


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



66
Sentelle, Circuit Judge, dissenting:  "


67
Hard cases make  bad law," is a cliche.  Phrases become cliches through much  repetition.  Much repetition sometimes results from the inherent truth in the phrase much repeated.  I fear that by not  making the hard choice, the court today once again proves  that hard cases still make bad law.


68
A statute of the United States makes it a felony for anyone  to "intentionally intercept[ ] ... any wire, oral, or electronic  communication...."  18 U.S.C. § 2511(1)(a) (1994).1  Further subsections of the same act render it felonious to "intentionally disclose[ ] ... to any other person the contents of any  wire, oral, or electronic communication, knowing or having  reason to know that the information was obtained through the  interception of" such communication;  or to "intentionally  use[ ] the contents" of any such intercepted communication.18 U.S.C. § 2511(1)(c)-(d) (1994).  On the undisputed record  before us, Alice and John Martin committed at least two and  probably three of the felonies created by this Act of Congress.  Knowing of these felonies, a Member of the Congress  of the United States, the elected representative of his people,  the sworn servant of the law, dealt with the felons, received  from them their feloniously obtained communications, and  converted it to his own use.  He obtained these communications not for the purpose of disclosing the felonies or assisting  in the enforcement of law, but solely for the purpose of using  the contents of the communications in the pursuit of the  politics of personal destruction.  To compound the wrong, this  was not just any congressman, but the co-chair of the House  Ethics Committee.  In other words, a public official charged  with the oversight of the ethics of his colleagues willfully  dealt with felons and knowingly received unlawfully obtained  evidence on the chance that he might be able to use something contained therein to embarrass one of the colleagues  whose ethics he was charged with policing.  Protecting such an official in such an act cannot be an easy thing to do. Nonetheless, it is, I think, that hard task that the Constitution compels us to undertake.


69
The first element of the dispute between the parties, and  perhaps the decisive one, is the level of scrutiny applicable to  a constitutional review of the statutes.  McDermott contends,  and I agree, that this case is controlled by a line of Supreme  Court cases dealing with various gradations of the question: Under what circumstances may state officials constitutionally  punish publication of information?2  As I read those cases,  the answer is that the state may do so, if at all, only when the  regulation survives a test of strict scrutiny--it must "further  a state interest of the highest order."  Smith v. Daily Mail  Publ'g Co., 443 U.S. 97, 103 (1979).


70
The line of relevant Supreme Court cases begins with Cox  Broadcasting Corp. v. Cohn, 420 U.S. 469 (1975).  In Cox  Broadcasting, the Supreme Court reviewed a judgment in  favor of the family of a rape-murder victim against a broadcast corporation which had published the name of the victim  in violation of a Georgia statute, Ga. Code Ann. § 26-9901  (1972), which made it a misdemeanor to publish or broadcast  the name or identity of a rape victim.  Although the Georgia  courts vacillated between reliance on the statute and common  law tort theories " 'for the invasion of the ... right of privacy,  or for the tort of public disclosure,' " in the end the Georgia  Supreme Court did pass on the constitutionality of the statute  and sustained it as a " 'legitimate limitation on the right of  freedom of expression contained in the First Amendment.' "  420 U.S. at 474, 475 (quoting Cox Broadcasting Corp. v.  Cohn, 200 S.E.2d 127 (Ga.1973)).  The high court, noting that  the broadcasting company had obtained the published information from public records, declared itself "reluctant to embark on a course that would make public records generally  available to the media but forbid their publication if offensive  to the sensibilities of the supposed reasonable man."  Id. at  496.  Then, in an opinion narrowed to the issue most squarely  before it, held that "[a]t the very least, the First and Fourteenth Amendments will not allow exposing the press to  liability for truthfully publishing information released to the  public in official court records."  Id.  Cox Broadcasting thus  left open the question of the state's ability to impose liability  for publishing information not released to the public in official  court records.


71
Two years after Cox Broadcasting, in Oklahoma Publishing Co. v. District Court, 430 U.S. 308 (1977), the Supreme  Court reached the same result as to information not released  in public records, but otherwise publicly available.  Several  reporters, including those employed by the petitioner company, had been present in the courtroom during the hearing of  an eleven-year-old boy charged with second degree murder. The district court of Oklahoma County enjoined members of  the news media from " 'publishing, broadcasting, or disseminating, in any manner, the name or picture of [a] minor  child' " in coverage of pending juvenile court proceedings. Id. at 308 (quoting pretrial order).  Citing Cox Broadcasting,  as well as Nebraska Press Ass'n v. Stewart, 427 U.S. 539  (1976), as compelling its result, the Supreme Court held that  "the First and Fourteenth Amendments will not permit a  state court to prohibit the publication of widely disseminated  information obtained at court proceedings which were in fact  opened to the public."  Id. at 310.  The respondent had  attempted to distinguish Cox Broadcasting on the basis that a  state statute provided that juvenile hearings would be closed  unless the court specifically opened them to the public, and  that the record did not reflect a specific opening in the instant  case.  The Supreme Court found that this made no difference, but held that the critical fact was that the information published, that is "[t]he name and picture of the juvenile"  were " 'publicly revealed in connection with the prosecution of  the crime[.]' "  Id. at 311 (quoting Cox Broadcasting, 420 U.S.  at 471).  While Oklahoma Publishing, like Cox Broadcasting,  is still not factually identical to the instant case, it moves one  step further toward compelling the result sought by McDermott.


72
Smith v. Daily Mail Publishing Co., 443 U.S. 97 (1979),  goes yet another step.  That case involved the publication of  the identity of a juvenile offender obtained by reporters  lawfully monitoring a police scanner.  The reporters were  indicted under a statute, W.Va. Code § 49-7-3 (1976), making  it unlawful to knowingly publish the name of a juvenile  involved in a juvenile court proceeding.  The United States  Supreme Court upheld the West Virginia Supreme Court  decision prohibiting prosecution of the indictment on constitutional grounds.  The Supreme Court expressly declared its  holding a narrow one.  Proclaiming that there was "no issue  ... of unlawful press access to confidential judicial proceedings, [and] no issue ... of privacy or prejudicial pretrial  publicity," id. at 105 (citation omitted), it declared that "[a]t  issue is simply the power of a state to punish the truthful  publication of an alleged juvenile delinquent's name lawfully  obtained by a newspaper."  Id. at 105-06 (footnote omitted).In Cox Broadcasting and Oklahoma Publishing, the information sought to be suppressed was released by the court itself,  either in public record or by opening access to the public.  In  Daily Mail, the information came from a scanner, but it was  lawfully obtained.  The holding was narrow one, but it moved  narrowly toward encompassing the protection sought by  McDermott today.


73
Closer still comes Florida Star v. B.J.F., 491 U.S. 524  (1989).  In Florida Star, a woman referred to by her initials,  BJF, had been robbed and sexually assaulted by an unknown  assailant.  The investigating law enforcement department  prepared and placed in its pressroom an incident report  identifying her by her full name.  Employees of the Florida  Star newspaper obtained the report and published an account  of the sexual assault, including her name, in violation of a  Florida statute which "ma[de] it unlawful to 'print, publish, or broadcast ... in any instrument of mass communication' the  name of the victim of a sexual offense."  Florida Star, 491  U.S. at 526 (quoting Florida Stat. § 794.03 (1987)) (footnote  omitted).  BJF sued civilly, relying on the statute for a  standard of negligence per se.  She obtained a judgment  which stood through the state appellate process.  The newspaper appealed to the United States Supreme Court arguing  that imposing civil liability on the newspaper, pursuant to the  statute, violated the First Amendment.  The Supreme Court  agreed.


74
The Supreme Court in Florida Star recognized that it had  articulated in Daily Mail a principle derived from a synthesis  of its prior cases:  " '[I]f a newspaper lawfully obtains truthful  information about a matter of public significance then state  officials may not constitutionally punish publication of the  information, absent a need to further a state interest of the  highest order.' "  491 U.S. at 533 (quoting Daily Mail, 443  U.S. at 103).  Thus, the Supreme Court made it plain that the  fact of constitutional significance in Cox Broadcasting, Oklahoma Publishing and Daily Mail was not that the publishers  in those cases had obtained the information at issue from  public record or public hearings, or publicly available communications from official sources, but that they had lawfully  obtained the information.  Even in Florida Star, the Court  expressly limited the scope of its ruling, holding:  "only that  where a newspaper publishes truthful information which it  has lawfully obtained, punishment may lawfully be imposed, if  at all, only when narrowly tailored to a state interest of the  highest order...."  491 U.S. at 541.  Because I believe this  holding of the Supreme Court instructs our decision on the  facts before us, I would hold that 18 U.S.C. § 2511 cannot  constitutionally be applied to penalize McDermott's publication of the contents of the unlawfully intercepted communication.


75
I concede at the outset that there are distinctions between  our case and the cases in the Cox Broadcasting-Florida Star  line.  However, I think none of the distinctions permits a  difference in result.  First, I think it is of no constitutional  significance that the holding in Florida Star expressly covered the situation "where a newspaper publishes truthful  information," while McDermott is not a newspaper.  I have  never believed that the First Amendment protection of "the  freedom ... of the press," afforded greater protection to  professional publishers than it does to anyone who owns a  typewriter, or for that matter than its protection of "the  freedom of speech" affords those who communicate without  writing it down.  Indeed, it is safe to say that when the  Framers of the Constitution used the expression "the press,  they did not envision the large, corporate newspaper and  television establishments of our modern world," but rather,  "refer[red] to the many independent printers who circulated  small newspapers or published writers' pamphlets for a fee."McIntyre v. Ohio Elections Comm'n, 514 U.S. 334, 360 (1995)  (Thomas, J., concurring).  Therefore, as the court holds today  that the state can punish the release by McDermott based on  the manner in which his source obtained that information, in  a later day the state can burden the publishers of newspapers  and the broadcasters of television and radio on the same  basis.


76
I can envision felonious eavesdroppers like the Martins in  this case obtaining not marginally embarrassing information  about congressmen but information of critical public importance about, for example, some public official's accepting a  bribe or committing perjury or obstruction of justice.  Even  if those hypothetical felons dumped information of that critical nature not into the hands of politicians but of a newspaper  publisher or a television news network, the public could never  know of the wrongdoing, because under today's ruling, those  news media would be barred from further publication of that  information.  Therefore, I cannot think that the identity of  the communicator can be a distinction of difference.


77
Judge Randolph's repeated attempt to distinguish between  "newspapers" on the one hand and "sources" (apparently  meaning all those who are not newspapers but might communicate information to a newspaper) on the other is without  substance or force.  His attempt to extend to newspapers  some First Amendment protection not available to all those  others who might communicate by stating that "sources do not publish;  newspapers do," creates a hierarchy of First  Amendment protection for a publishing aristocracy nowhere  suggested in the Amendment, its history, or the cases applying it.  As I noted above, the Framers' use of the expression  "the press" does not connote a protected entity, but rather a  protected activity.  See McIntyre, 514 U.S. at 360 (Thomas,  J., concurring).  The First Amendment protections of speech  and press extend to those who speak and those who write,  whether they be press barons, members of Congress, or other  sources.


78
Judge Randolph's further attempt to pass off what McDermott did as unprotected conduct rather than protected speech  is likewise unconvincing.  Contrary to Judge Randolph's essential position, it was not McDermott's "conduct in delivering the tape that gives rise to his potential liability under  § 2511(1)(c)."  Maj. Op. at 7.  What made his conduct punishable under the statute was the information communicated on  the tapes.  He could have provided the two newspapers with  all the tapes in Washington on a given day and incurred no  liability but for the speech contained on the tapes.  Indeed,  the majority's hypothetical concerning the Martins breaking  into Boehner's office stealing a tape and giving it to McDermott illustrates the weakness of the majority's position, not  its strength.  Had the Martins broken into the office and  stolen such a tape and given it to McDermott, he would have  received stolen property without regard to its contents.  Had  he then copied its contents to other tapes and passed those  copies off to The New York Times and The Washington Post,  he would have incurred no liability under 18 U.S.C. § 2511,  nor would he have aggravated his crime of receiving stolen  property.  What he is being punished for here is not conduct  dependent upon the nature or origin of the tapes;  it is speech  dependent upon the nature of the contents.


79
Next, and of somewhat greater persuasion, is the distinction that the information was unlawfully obtained somewhere  in the chain.  That is to say, the Florida Star Court limited  its holding to truthful information, lawfully obtained.  Indeed,  the Court in Florida Star expressly reserved "the issue  whether, in cases where information has been acquired unlawfully by a newspaper or by a source, government may  ever punish not only the unlawful acquisition, but the ensuing  publication as well."  Florida Star, 491 U.S. at 535 n.8  (additional emphasis added) (noting further that "[t]his issue  was raised but not definitively resolved in New York Times  Co. v. United States, 403 U.S. 713 (1971), and reserved in  Landmark Communications, 435 U.S. at 837.").  That is the  question.  The second half of that question is the one we must  answer today.  Where the punished publisher of information  has obtained the information in question in a manner lawful in  itself but from a source who has obtained it unlawfully, may  the government punish the ensuing publication of that information based on the defect in a chain?  I say not.  This  separates me from the majority.


80
As the Court held in Florida Star, "punishment may  lawfully be imposed, if at all" upon the publisher of truthful  information, lawfully obtained, "only when narrowly tailored  to a state interest of the highest order...."  491 U.S. at 541.The Supreme Court has elsewhere described "the 'now settled approach' that state regulations 'imposing severe burdens on speech ... [must] be narrowly tailored to serve a  compelling state interest."  Buckley v. American Constitutional Law Found., 119 S. Ct. 636, 642 n.12 (internal quotations and punctuation omitted) (quoting Thomas, J., concurring).


81
Otherwise put, the statutes before us burden speech based  on its content--that is they forbid its publication because it  contains information obtained at an earlier time in an illicit  fashion.  It is established Supreme Court law that when the  state "establishes a financial disincentive to ... publish works  with a particular content ... 'the State must show that its  regulation is necessary to serve a compelling State interest  and is narrowly drawn to achieve that end.' "  Simon &  Schuster, Inc. v. New York State Crime Victims Board, 502  U.S. 105, 118 (1991) (quoting Arkansas Writers' Project, Inc.  v. Ragland, 481 U.S. 221, 231 (1987)).  I will not dispute that  the protection of the privacy of electronic communication is a  compelling state interest.  I will concede for purposes of the  present case that punishment of an unlawful interceptor, both criminally and by the allowance of civil damages, may well be  sufficiently narrowly tailored to survive even the strict scrutiny required here.  I do not, however, see that either the  United States or the State of Florida has established that an  undifferentiated burden on the speech of anyone who acquires  the information contained in the communication from the  unlawful interceptor is necessary to accomplish the state's  legitimate goal or narrowly tailored to serve that end.  I do  not see how we can draw a line today that would punish  McDermott and not hold liable for sanctions every newspaper, every radio station, every broadcasting network that  obtained the same information from McDermott's releases  and published it again.  Not only is this not narrow tailoring,  this is not tailoring of any sort.  As I recognized above, we  are not squarely within the language of Florida Star.  I think  we must answer the question reserved in that decision, and I  think we must answer it against the burdening of publication.


82
Although appellant offers other distinctions from the reasoning of Florida Star, I find none compelling, or worth more  than passing mention.  It is true, as appellant and the United  States as intervenor argue, that the Supreme Court has held  that the First Amendment permits the government to enjoin  or punish the release of information by persons who have  voluntarily entered into positions requiring them to treat that  information with confidentiality.  See, e.g., Snepp v. United  States, 444 U.S. 507 (1980) (upholding constructive trust  against all profits of the publication of truthful information of  public importance lawfully obtained through petitioner's employment at the CIA, where he had contracted to keep the  same confidential);  United States v. Aguilar, 515 U.S. 593  (1995) (allowing punishment of a federal judge who disclosed  sensitive information concerning statutorily authorized wiretap);  Seattle Times Co. v. Rhinehart, 467 U.S. 20 (1984)  (upholding restrictions on disclosure of otherwise confidential  information obtained by court order in civil discovery).  Appellant and intervenor argue that McDermott can be punished for his disclosure because of his having, intheir view,  obtained the information at issue in his capacity as a member  of the House Ethics Committee.  I cannot agree.  McDermott did not in fact obtain the information in his official  capacity.  The felons who communicated it to him were not  looking for him to use his official ethical capacity but rather  his unofficial political capacity to disseminate their unlawfully  obtained information.  It may well be the case that had he  obtained the same information, for example, by Committee  subpoena, he could not have lawfully disclosed it and his  disclosure would not be constitutionally protected.  Indeed,  that is perhaps more likely than not.  But those are not the  facts before us.

Conclusion

83
For the reasons set forth above, I would uphold the judgment of the district court and I respectfully dissent from the  decision of the court to the contrary.



Notes:


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


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


