NEWS MEDIA UPDATE · WASHINGTON, D.C. · Privacy · May 3, 2007
Congressman can be sued for leaking tape to media
May 3, 2007 · A divided federal appeals court in Washington, D.C., ruled Tuesday that a Democratic congressman can be sued for leaking an illegally taped phone call to the media, but most of the judges indicated the First Amendment should provide protection for most people, including journalists.
The case arose when Rep. John Boehner (R-Ohio) sued Rep. Jim McDermott (D-Wash.) in 1998 after a Florida couple illegally recorded a 1996 telephone conference call between Republican leaders. Boehner was part of the call, in which the leaders discussed ethics allegations against then-House Speaker Newt Gingrich and Gingrich’s instructions on how to react to allegations.
The couple intercepted the call using a radio scanner and gave the tape to McDermott, who was the ranking Democrat on the House Ethics Committee at the time. McDermott gave the tape to reporters at The New York Times, Atlanta Journal-Constitutional and Roll Call, which published stories about the conversation in January 1997.
Boehner sued McDermott under a federal wiretapping law that not only made the Florida couple’s interception illegal but also prohibited disseminating the information.
After Boehner filed suit in 1998, the case weaved through the federal court system over the next decade, even reaching the Supreme Court. In 2001, the high court set aside the Washington appeals court’s first ruling backing Boehner and asked the court to reconsider in light of a decision in a similar case, Bartnicki v. Vopper.
In that case, the Supreme Court found that the part of the wiretapping law prohibiting disclosure could not be constitutionally applied to a media organization that took no part in the wiretapping and that was reporting on a matter of public importance.
But that provision of the law applies to McDermott, the federal appeals court ruled this week, because of his membership on the House Ethics Committee.
“When Representative McDermott became a member of the ethics committee, he voluntarily accepted a duty of confidentiality that covered his receipt and handling of the . . . illegal recording,” Judge Raymond Randolph wrote for the court. “He therefore had no First Amendment right to disclose the tape to the media.”
Crucially for the media, one of the judges in the majority wrote a separate opinion saying that McDermott’s situation was exceptional and that the First Amendment would normally offer protection in situations like this.
Judge Thomas Griffith found McDermott liable only because he had “voluntarily relinquished” the “First Amendment shield” as a member of the House Ethics Committee.
In doing so, Griffith agreed with the four members of the court who dissented from Wednesday’s ruling in recognizing the applicability of the First Amendment in this case. The four dissenters did not agree with Griffith that McDermott had waived his rights.
That could ease the concerns of members of the media, who will be able to argue in future cases that, as Griffith pointed out, “a majority of members of the Court . . . would have found his actions protected by the First Amendment” had McDermott not been subject to the ethics committee’s rules.
News organizations, including The Reporters Committee for Freedom of the Press, had filed a friend-of-the-court brief arguing that a ruling against McDermott could chill the media’s ability to gather information on matters of public interest.
“It’s a huge win in terms of the free speech and free press interests,” Theodore Boutrous, an attorney for the media, said in a New York Times report.
The final decision upheld a lower court ruling awarding Boehner $60,000 in damages and upwards of $600,000 in legal fees.
(Boehner v. McDermott, Amicus Counsel: Theodore J. Boutrous Jr., Gibson, Dunn & Crutcher LLP, Los Angeles) — NC