NEWS MEDIA UPDATE · WASHINGTON, D.C. · Prior Restraints · March 31, 2006
Congressman violated laws by releasing tape to media
March 31, 2006 · State and federal wiretapping laws prevent the dissemination of illegally recorded material to journalists or anyone else even if it is obtained legally, a federal appeals court ruled this week in affirming a lower court’s decision against a congressmen who gave reporters an unlawfully recorded conversation.
The U.S. Court of Appeals in Washington, D.C., in a 2-1 decision Tuesday, upheld the ruling that Rep. James A. McDermott (D-Wash.) violated the civil rights of Rep. John A. Boehner (R-Ohio) by giving reporters from the Atlanta Journal-Constitution and The New York Times a tape of a conversation involving Boehner and then-House Speaker Newt Gingrich (R-Ga.).
The case “is the difference between someone who discovers a bag containing a diamond ring on the sidewalk and someone who accepts the same bag from a thief, knowing the ring inside to have been stolen,” wrote Judge A. Raymond Randolph, who was joined by Chief Judge Douglas H. Ginsburg in the majority. “The former has committed no offense; the latter is guilty of receiving stolen property, even if the ring was intended only as a gift.”
The majority said that the “eavesdropping statute may not itself make receiving a tape of an illegally-intercepted conversation illegal. But it does not follow that anyone who receives a copy of such a conversation has obtained it legally and has a First Amendment right to disclose it.”
Judge David B. Sentelle’s dissent argues that the decision ignores the U.S. Supreme Court’s 2001 ruling in Bartnicki v. Vopper, which found that when information is illegally intercepted, federal wiretap laws are unconstitutional when applied to a third party who legally receives the information and discloses it to the media.
“The Supreme Court underlined the lack of constitutional significance of the communicator’s knowledge that the interception had been unlawfully conducted,” Sentelle wrote.
The tape in the Boehner v. McDermott case was illegally recorded in 1996 by Florida residents, John and Alice Martin, who made the tape when their police scanner intercepted a cellular phone conference call involving Gingrich and Boehner. The Martins recorded the conversation and gave the tape to McDermott, who in turn gave it to the press.
Boehner filed a civil suit in 1998 against McDermott claiming that McDermott violated state and federal wiretapping laws. The suit was originally dismissed by the District Court in Washington, D.C., but Boehner appealed and the decision was reversed in 1999 by the same three-judge panel.
However, the Supreme Court vacated the judgment in 2001 and remanded the case in light of its decision in Bartnicki v. Vopper.
“It seems that Judges Randolph and Ginsburg believe that Bartnicki was wrongly decided,” said Lee Levine, who argued for the media defendants before the Supreme Court in Bartnicki.
Randolph and Ginsburg differentiated this case from Bartnicki by focusing on the fact that McDermott knew the tape was illegally recorded while in Bartnicki, the person received the illegally recorded tape from an anonymous source.
“Unfortunately, it puts us back several steps from where we found ourselves after Bartnicki,” Levine said. “After Bartnicki, we had a collective sigh of relief. If we had lost it would have been virtually impossible to report on information that arguably had been wrongfully acquired. A lot of important journalism depends on that type of information.”
A coalition of news media organizations, including The Reporters Committee for Freedom of the Press, filed an friend-of-the-court brief arguing that the lower court’s ruling misinterpreted the Bartnicki standard, and that the decision would have serious negative consequences for newsgathering.
In his dissent, Sentelle also worried about the effect the decision might have on the ability of the press to report on information of public importance where the source of the information is not perfectly clear.
“Just as Representative McDermott knew that the information had been unlawfully intercepted, so did the newspapers to whom he passed the information,” Sentelle wrote. “I see no distinction, nor has Representative Boehner suggested one, between the constitutionality of regulating communication of the contents of the tape by McDermott or by The Washington Post or The New York Times or any other media source. For that matter, every reader of the information in the newspapers also learned that it had been obtained by unlawful intercept. Under [this rule], no one in the United States could communicate on this topic of public interest . . . .”
For now, at least, the media’s victory in Bartnicki still stands.
“It’s not nearly as bad as a Supreme Court decision saying this,” Levine said. “But unless the Supreme Court takes this case or other courts reject it, it’s a terrible case to have on the books.”
(Boehner v. McDermott, Amicus Counsel: Theodore J. Boutrous, Jr., Los Angeles) — CM