By Jim Schutze
By Rachel Watts
By Lauren Drewes Daniels
By Anna Merlan
By Lee Escobedo
U.S. District Judge Jerry Buchmeyer ruled last week that the Observer cannot be sued for printing a transcript of secretly recorded telephone conversations in which Peavy made racist and derogatory remarks about DISD administrators and school board members.
The Observer's right to publish the transcript outweighed Peavy's right to privacy, Buchmeyer ruled, even though the tape was apparently recorded illegally by someone who provided it to school board members. The Observer played no role in making the tape and obtained the transcript legally through an open records request to DISD.
Buchmeyer's ruling is the first in the country by a federal judge attempting to strike a balance between press rights and federal wiretap statutes intended to protect the privacy of telephone conversations. If it stands on appeal, the decision will break new legal ground on First Amendment rights.
Peavy is vowing to appeal the decision. "I was disappointed in the ruling," Peavy says. "I know that Judge Buchmeyer is a very fair and honorable judge, and I respect his decision, but we are most concerned about seeking relief at the Fifth Circuit [Court of Appeals] and the Supreme Court if necessary."
Charles Babcock, the Observer's lead attorney in the case, predicted that Buchmeyer's ruling will have "national significance" since it is the first federal precedent involving a newspaper's right to publish information obtained through surreptitious tape recordings.
"It is the first of its kind in the country," Babcock says.
James Morris, one of Peavy's attorneys in the case, criticized Buchmeyer's decision. "I have the utmost respect for the First Amendment and the freedom of the press, but I think we have crossed the line," Morris says. "I want this to go up [on appeal], and when it does I think we're going to see that the press has stepped one little bit too far, and they're going to have to be reeled in."
At issue in the lawsuit is a largely unexplored legal question--when may the press report the contents of conversations that were illegally tape-recorded? (The same issue arose earlier this year when a Florida couple recorded House Speaker Newt Gingrich discussing strategy for his response to a Congressional investigation of Gingrich's ethical violations. The couple provided a copy of the tape to a member of Congress, and reports of the conversation were published in many newspapers.)
Peavy was a member of the DISD board in 1995 when surreptitiously obtained recordings of his private telephone conversations surfaced. Some tapes were made by a neighbor of Peavy's who was feuding with the school board member and used a scanner to record Peavy's conversations on a cordless phone. The neighbor later pleaded guilty to a minor federal charge for making the tapes.
The neighbor, however, denied making the tapes on which Peavy was captured making racial slurs, and their origins remain unknown.
In September 1995, transcripts of several short portions of Peavy's private conversations were given to two members of the Dallas school board, who read them into the record at a public board meeting. According to the transcript, Peavy referred to DISD administrators as "ignorant motherfucking niggers" and derided black school board members Yvonne Ewell and Kathlyn Gilliam for talking about "nigger rights."
Although The Dallas Morning News and local television stations reported on the transcript, they provided few exact quotes from the obscenity-laced conversations. The Observer requested a full transcript of the comments under state open records laws, and was the only newspaper to print it verbatim, leaving out only the names of some of the people Peavy insulted.
Shortly after the tapes became public, Peavy apologized for the remarks and resigned his seat on the board. (At the time, Peavy also was under investigation for allegedly taking kickbacks on district insurance contracts. Peavy was later acquitted by a federal jury on all the charges.)
Peavy then sued the Observer and its former editor Peter Elkind for printing the transcript. Peavy's suit argued that--even though the paper obtained the transcript legally--the tape recording itself was illegal, and therefore the paper was barred from publishing the comments.
Peavy's case was based on federal wiretap statutes designed, in part, to protect conversations held on cordless or cellular telephones. The law prohibits anyone from listening to and recording such conversations. It also makes it illegal for anyone else to use or disclose the contents of illegally intercepted communications if they know or should have known that the conversations were illegally obtained.
Peavy's lawyers argued that, offensive or not, Peavy's conversations were absolutely private. No matter how many other hands the transcript passed through, they contended, the Observer broke the law by publishing it. "Our constitution protects the right to say things even though they may be distasteful, crass, and offensive," Morris says.
Observer attorneys, however, argued that since Peavy's remarks had been read into a public record--and the paper obtained the transcript through an open records request--the Observer could not be sued for publishing the remarks.
In his ruling, Buchmeyer agreed. "Once true information is disclosed in public school board documents open by law to public inspection, the press cannot be sanctioned for publishing that information," Buchmeyer wrote.
Buchmeyer's ruling also pressed further into the question of press rights and privacy. "It is undisputed that Elkind obtained the tape transcripts lawfully from school board records, open to the public," Buchmeyer wrote. "It is also without question that elected official Peavy's racist views on how a district heavily populated with minorities should be run is a matter of public concern to the citizens of Dallas."
Buchmeyer's ruling continued: "Protecting the statutory privacy rights of Peavy, an elected official, is not compelling enough to warrant infringement on the constitutional rights of [the Observer] to publish matters of paramount public import."
Babcock says Buchmeyer's ruling makes it clear that newspapers are protected if they truthfully report the contents of intercepted conversations, as long as the paper itself obtains the information by lawful means.
Since Peavy was an elected official, Babcock says, the paper was wholly within its rights to publish the transcript. "An elected official using the N-word is a matter of considerable public interest," Babcock says.
Morris, however, disagrees vehemently, saying the contents of Peavy's conversations should have had no bearing on the case. "Would this ruling have been the same had that telephone call been genteel and polite and had no vulgarity in it? I think not," Morris says. "What Dan Peavy said he had an absolute, unequivocal right to say...It's obvious Judge Buchmeyer got off on the content of that tape. Judge Buchmeyer found it offensive and wanted to punish somebody for it."
Morris contends that Buchmeyer went too far in his ruling and predicts it will be overturned on appeal. "In my view [the decision] constitutes a finding that federal wiretap statutes are unconstitutional as applied to the press," he says. "I think the Fifth Circuit, I think the Supreme Court, will have a real difficult time swallowing that."
Babcock disagrees. "I'd say on appeal it's solid gold. I can't imagine a court reaching any other decision under these facts," he says. "I really do feel strongly that the Observer did nothing wrong here."
Peavy says he is determined to continue his pursuit of the case. He has already hired new lawyers to handle the appeal.