Wiretap law beats First Amendment challenge

From the Fall 1999 issue of The News Media & The Law, page 4.

In late September, a three-judge panel of the U.S. Court of Appeals in Washington, D.C. (D.C. Cir.), reinstated a civil lawsuit between two members of Congress over the disclosure to the press of the contents of an illegally intercepted telephone call.

The panel reversed a Washington, D.C., federal District Court’s dismissal of the claim and sent the case back for trial, holding that federal wiretap laws do not violate First Amendment principles of free press and free speech.

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Rep. John Boehner (R-Ohio) was in Florida on vacation in 1996 when Florida residents John and Alice Martin intercepted a conference call in which Boehner and other House Republicans discussed the House Ethics Committee’s investigation of Newt Gingrich.

The Martins later delivered a tape of the conversation to Rep. James McDermott (D-Wash.), then the ranking Democrat on the House Ethics Committee, who later provided copies to The New York Times, the Atlanta Journal and Constitution, and Roll Call, a newspaper that covers Congress. All of the newspapers ran stories about the conversation, and The New York Times ran the story on the front page.

Boehner subsequently sued McDermott for civil damages under provisions of the federal wiretap law, which prohibits the interception and disclosure of private telephone conversations.

The District Court in late July 1998 held that regardless of the originally unlawful interception of the recorded telephone conversation, McDermott’s receipt of the tape was not prohibited by wiretap laws, and his disclosure of the tape to the media was protected by the First Amendment. (See NM&L, Fall 1998)

Boehner appealed to the U.S. Court of Appeals in Washington, D.C. (D.C. Cir.), arguing that Congress may impose a duty of nondisclosure on individuals who receive illegally acquired and disseminated information. Furthermore, he argued that the federal wiretap law does not infringe on First Amendment freedoms. According to Boehner, McDermott is “a ‘government official in a sensitive confidential position’ who has access to confidential information as a consequence of that office and took an ‘oath’ to preserve the ‘confidentiality’ of any information so obtained.”

McDermott asserted in his brief that the lawsuit filed against him was an attempt to punish him for disclosing truthful information that was lawfully obtained regarding a matter of public significance. While conceding that the government can punish the interception of private communications, McDermott argued that the case filed against him “involves speech at the very core of the First Amendment: one political leader is seeking to punish another political leader for allegedly disclosing a conversation among some of the Nation’s top political leaders on a political topic.”

In late September 1999, the appellate court reinstated Boehner’s lawsuit against McDermott. The court explained that by accepting an illegally intercepted tape of a telephone conversation between Boehner and other House Republicans, McDermott voluntarily assumed a “duty, if not of ‘confidentiality,’ then of nondisclosure. The duty stemmed . . . from every citizen’s responsibility to obey the law.” (Boehner v. McDermott)