A couple of
caveats: I'm not an expert on First Amendment issues; and I hadn't heard of
Bartnicki until now - but I am an attorney, and I have identified a couple of chinks in the proverbial
Bartnicki armor. And, I love to take on new legal questions.
First, those asserting the precedence of
Bartnicki are not wrong, but a) it is narrower in scope than asserted; b) it may not be applicable to the
National Inquirer questions; and c)
Bollea may inapposite. For fun, let me get all pedantic up here:
1)
participation. Bartnicki involved a chain of acquisition for the tape in question, which attenuated the culpability of the publisher/broadcaster, who had no direct knowledge of how the tape came into being. The
Inquirer has a reputation for encouraging the acquisition of questionable material, and may, in some instances, have participated in the illegality. That is likely to have been the case here, given the content and target (it forms a pattern). That is a distinction with great significance.
Second,
Bartnicki can be
interpreted pretty narrowly, despite its broad implications. It was what is called an "as applied" decision, which alone limits its application to how the material is used. What that generally means is that each instance is reviewed independently, rather than in a broad-brush manner - the same rule applies, but the facts change the outcome significantly. The law wasn't changed, the interpretation of the law is different.
Third, the
public interest exception. There is a longstanding "public interest" exemption that applies in First Amendment (and certain other) cases. The more significant the "public interest" the more leeway courts give to First Amendment arguments.
The Pentagon Papers are a good example of a strong public interest leak. Whistleblower statutes are the embodiment of the concept. As we know from recent cases, however, punishing the leakers is a growing trend.
Government Leaks to the Press Are C...e We Suddenly Punishing Them So Harshly? (
TIME). The
Inquirer would have a hard time arguing much public interest in publishing this material to begin with, especially once the story has been told. Does being a billionaire mean a lack of privacy? But, that leads to the last distinction:
How the material was used. In
Bartnicki the illegally obtained tape was simply published. The
Inquirer (it is alleged) was actually using it for a non-publication purpose (blackmail). That, in itself, is unprotected (as is all revenge porn).
Finally, the Hulk Hogan case was a State court case, and it doesn't appear
Bartnicki was addressed there, as it was resolved before appeals were completed. Arguments about whether
Bartnicki is applicable could go either way.
As a final point, I think it is an open question whether the explicit material itself would be within the
Bartnicki exemption.
Perhaps the fact of an affair is of public interest (which I would generally argue against), and
perhaps the creation of material (exposure pics, tapes, etc.) has some "news" value, depending on the nature of the victim, but the exposure of that material
itself to public view adds very little value to the public, but perhaps makes it a better tool for blackmail.
Overall, I think the
Inquirer has exposed themselves to a lot of pain (maybe it likes that), and perhaps
Gawker-level punishment. I think the bigger issue, though, is ancillary criminal exposure (e.g., prosecution and/or loss of immunity). Oh! My popcorn is ready!
