Simply stated: Does the First Amendment provide protection to speech that discloses the contents of an illegally intercepted communication?
Yes. In a 6-3 opinion delivered by Justice John Paul Stevens, the Court held that the First Amendment protects the disclosure of illegally intercepted communications by parties who did not participate in the illegal interception. “In this case, privacy concerns give way when balanced against the interest in publishing matters of public importance,” wrote Justice Stevens. “[A] stranger’s illegal conduct does not suffice to remove the First Amendment shield from speech about a matter of public concern.” Noting that the negotiations were a matter of public interest, Justice Stevens wrote that the “debate may be more mundane than the Communist rhetoric that inspired Justice Brandeis’ classic opinion in Whitney v. California, but it is no less worthy of constitutional protection.”
Justice Brandeis in his famous concurring opinion in Whitney wrote thusly.
Those who won our independence believed that the final end of the State was to make men free to develop their faculties, and that, in its government, the deliberative forces should prevail over the arbitrary. They valued liberty both as an end, and as a means. They believed liberty to be the secret of happiness, and courage to be the secret of liberty. They believed that freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth; that, without free speech and assembly, discussion would be futile; that, with them, discussion affords ordinarily adequate protection against the dissemination of noxious doctrine; that the greatest menace to freedom is an inert people; that public discussion is a political duty, and that this should be a fundamental principle of the American government. They recognized the risks to which all human institutions are subject. But they knew that order cannot be secured merely through fear of punishment for its infraction; that it is hazardous to discourage thought, hope and imagination; that fear breeds repression; that repression breeds hate; that hate menaces stable government; that the path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies, and that the fitting remedy for evil counsels is good ones. Believing in the power of reason as applied through public discussion, they eschewed silence coerced by law — the argument of force in its worst form. Recognizing the occasional tyrannies of governing majorities, they amended the Constitution so that free speech and assembly should be guaranteed. Whitney, 274 US 376 (1927).
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