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:
“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.
I
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
[465]*465On 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.
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.
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.”
The next day, January 9, 1997, McDer-mott gave copies of the tape to the New York Times, the Atlanta Journal-Constitution, 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.
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(l)(a) and 2511(4)(b)(ii).
Under § 2511(l)(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(l)(a), 2511(4). The Martins entered guilty pleas on April 23, 1997, and were each fined $500.
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 McDer-mott with violating 18 U.S.C. § 2511(l)(c):
(1) Except as otherwise specifically provided in this chapter any person who—
(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;
[466]*466shall be punished as provided in subsection (4) or shall be subject to suit as provided in subsection (5).
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
McDermott moved to dismiss the complaint, arguing that § 2511(l)(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
A
In mounting his First Amendment defense, McDermott obviously thinks he engaged in speech, speech for which he would suffer liability in damages if § 2511(l)(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 McDer-mott was exercising his freedom of speech when he gave copies of their tape to the newspapers.
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(l)(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 [467]*467“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(l)(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 ¶ 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(l)(c). McDer-mott’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.
“[E]ven on the assumption that there was [some] communicative element in” McDermott’s conduct, the Supreme Court has held that “when ‘speech’ and ‘non-speech’ 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, 88 S.Ct. 1673, 20 L.Ed.2d 672 (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(l)(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(l)(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 McDer-mott’s activity and on his activity alone. See Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 495, 102 S.Ct. 1186, 71 L.Ed.2d 362 (1982); Parker v. Levy, 417 U.S. 733, 756, 94 S.Ct. 2547, 41 L.Ed.2d 439 (1974); United States v. Raines, 362 U.S. 17, 21-22, 80 S.Ct. 519, 4 L.Ed.2d 524 (1960); contrast Broadrick v. Oklahoma, 413 U.S. 601, 615, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973).
B
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, 114 S.Ct. 2445, 129 L.Ed.2d 497 (1994); Ward v. Rock Against Racism, 491 U.S. 781, 791, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989); Clark v. Community for Creative Non-Violence, 468 U.S. 288, 293, 104 S.Ct. 3065, 82 L.Ed.2d 221 (1984). Section 2511(l)(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 con[468]*468duct § 2511(l)(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, 114 S.Ct. 2445; R.A.V. v. St. Paul, 505 U.S. 377, 386, 112 S.Ct. 2538, 120 L.Ed.2d 305 (1992); Time Warner Entertainment Co. v. FCC, 93 F.3d 957, 969 (D.C.Cir.1996) (per curiam).
The oft-repeated test laid down in O’Brien is as follows:
[A] government regulation is sufficiently justified if it is within the constitutional power of the Government; if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.
391 U.S. at 377, 88 S.Ct. 1673.
Here, the “substantial governmental interest” “unrelated to the suppression of free expression” is evident. Section 2511(l)(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 cer[469]*469tain 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(l)(e).
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, 105 S.Ct. 2218, 85 L.Ed.2d 588 (1985) (quoting with approval Estate of Hemingway v. Random House, Inc., 23 N.Y.2d 341, 296 N.Y.S.2d 771, 244 N.E.2d 250, 255 (1968)); see also Halperin v. Kissinger, 606 F.2d 1192, 1199 (D.C.Cir.1979), aff'd, 452 U.S. 713, 101 S.Ct. 3132, 69 L.Ed.2d 367 (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 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.
There are other substantial government interests underlying § 2511(l)(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 McDer-mott, 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, 88 S.Ct. 507, 19 L.Ed.2d 576 (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 [470]*470Wayne 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, 110 S.Ct. 1691, 109 L.Ed.2d 98 (1990); New York v. Ferber, 458 U.S. 747, 760, 102 S.Ct. 3348, 73 L.Ed.2d 1113 (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(l)(e)’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).
What we have just written also explains why whatever incidental restriction on speech § 2511(l)(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, 88 S.Ct. 1673. 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
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, 109 S.Ct. 2603, 105 L.Ed.2d 443 (1989), quoting Smith v. Daily Mail Publ’g Co., 443 U.S. 97, 103, 99 S.Ct. 2667, 61 L.Ed.2d 399 (1979).10
The district court, believing that Florida Star left it no other choice, reluctantly [471]*471adopted 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.
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, 109 S.Ct. 2603. The Sheriffs 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 Sheriffs Department and the newspaper for violating the statute. Before trial, the Sheriffs Department settled with the plaintiff. A jury awarded damages against the Florida Star and a state appellate court affirmed.
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 Sheriffs Department — had made this information available. See id. at 534-36, 109 S.Ct. 2603. 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, 109 S.Ct. 2603. The statute contained no scienter requirement; and the press was entitled to assume the government “considered dissemination lawful,” id. at 539, 109 S.Ct. 2603, because the information stemmed from a “government news release,” id. at 538, 109 S.Ct. 2603. 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, 109 S.Ct. 2603.
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, 109 S.Ct. 2603; the “future may bring scenarios which prudence counsels our not resolving anticipatorily,” id. at 532, 109 S.Ct. 2603; the Court is following the practice of resolving “this conflict only as it arose in a discrete factual context,” id. at 531, 109 S.Ct. 2603; “[o]ur holding today is limited,” id. at 541, 109 S.Ct. 2603.
Let us now compare the statute in Florida Star with § 2511(l)(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, 109 S.Ct. 2603 (quoting [472]*472Fla. 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(l)(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, 109 S.Ct. 2603. The federal law seeks to protect the privacy of communications. See, e.g., Gelbard v. United States, 408 U.S. 41, 51-52, 92 S.Ct. 2357, 33 L.Ed.2d 179 (1972). In that respect, the federal law — unlike the Florida statute — advances First Amendment interests for reasons already mentioned. See supra pp. 468-70. 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, 109 S.Ct. 2603. 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, 111 S.Ct. 2513, 115 L.Ed.2d 586 (1991). Here, the federal prohibition on disclosure is not dependent on the content of the communication. And of greatest importance, § 2511(l)(e) 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(l)(c). In contrast, the Florida statute had no scienter requirement, see Florida Star, 491 U.S. at 539, 109 S.Ct. 2603, and the government lawfully acquired the information — the victim’s identity-while investigating a crime.
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:
The Daily Mail principle does not settle the issue whether, in eases 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. United States, 403 U.S. 713, 91 S.Ct. 2140, 29 L.Ed.2d 822 (1971), and reserved in Landmark Communications, 435 U.S. [829,] 837, 98 S.Ct. 1535, 56 L.Ed.2d 1 [ (1978) ]. We have no occasion to address it here.
491 U.S. at 535 n. 8, 109 S.Ct. 2603.
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 McDer-mott’s “source.” It follows from footnote 8 that the “Daily Mail principle” and the [473]*473decision in Florida Star do not “settle” this case.
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(l)(a), but also for giving the tape to McDermott, in violation of § 2511(l)(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 Sheriffs 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, 109 S.Ct. 2603, 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, 92 S.Ct. 2646, 33 L.Ed.2d 626 (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.”
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, 91 S.Ct. 2140, 29 L.Ed.2d 822 (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 [474]*474Pentagon 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
McDermott also misreads Landmark Communications, Inc. v. Virginia, 435 U.S. 829, 837, 98 S.Ct. 1535, 56 L.Ed.2d 1 (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 [475]*475newspaper 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, 217 Va. 699, 233 S.E.2d 120, 123 n. 4 (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, 98 S.Ct. 1535.15
Footnote 8 of Florida Star, and the marked contrast between § 2511(l)(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.
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, 109 S.Ct. 2603. 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(l)(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, 85 S.Ct. 1271, 14 L.Ed.2d 179 (1965).
“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, 99 S.Ct. 2667.16 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.
“And” is emphasized in the last sentence because throughout this litigation, McDer-mott 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 [476]*476it 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.
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, 109 S.Ct. 2603. 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).
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, 109 S.Ct. 2603.17 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 Zucchini v. Scripps-Howard Broad. Co., 433 U.S. 562, 577-79 & n. 13, 97 S.Ct. 2849, 53 L.Ed.2d 965 (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, 105 S.Ct. 2218. In discovery, litigants lawfully acquire private information from their opponents. This does not mehn 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, 104 S.Ct. 2199, 81 L.Ed.2d 17 (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, 111 S.Ct. 2513; see also Snepp v. United States, 444 U.S. 507, 100 S.Ct. 763, 62 L.Ed.2d 704 (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 [477]*477or the existence of the electronic surveillance. United States v. Aguilar, 515 U.S. 593, 605, 115 S.Ct. 2357, 132 L.Ed.2d 520 (1995).18
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 nondisclosure, and the First Amendment does not preclude the enforcement of that duty.” Brief for Ap-pellee at 20. But this is no distinction at all. McDermott too obtained the tape under a duty of nondisclosure. In his case the duty arose from a statute— § 2511(l)(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, 105 S.Ct. 2218. 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(l)(c), promotes free expression.
D
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 [478]*478newspaper who published excerpts from the tape — who, in other words, engaged in speech — thus raises issues not before us.
Our dissenting colleague also thinks the statute “burdens speech based on its content — that is [§ 2511(l)(c) forbids] its publication because it contains information obtained at an earlier time in an illicit fashion.” Dissenting op. at 485. 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(l)(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(l)(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.
Our colleague cannot understand why Congress thought it necessary to prohibit not only the interception of communications, but also their disclosure. Dissenting op. at 485. 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 483-84. 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.
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 485. 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 nondisclosure. The duty stemmed of course from every citizen’s responsibility to obey the law, of which § 2511(l)(e) is a part.
For the reasons stated, we hold that § 2511(l)(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.
So ordered.