Wiretap claim based on disclosure to press reinstated against congressman

Wiretap claim based on disclosure to press reinstated against congressman

• A federal appellate court has revived the civil lawsuit filed against a congressman who provided the contents of an illegally recorded telephone conversation to the media

A three-judge panel of the U.S. Court of Appeals in Washington, D.C. (D.C. Cir.) reinstated in late September a civil lawsuit filed by Congressman John A. Boehner (R-Ohio) against Congressman Jim McDermott (D-Wash.) for disclosing to the press the contents of an intercepted telephone call, allegedly in violation of federal wiretapping laws.

The panel reversed a 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 as applied in this case.

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 of course from every citizen’s responsibility to obey the law, of which [the federal wiretap law] is a part.”

Boehner was in Florida on vacation in 1996 when residents John and Alice Martin intercepted a conference call in which Boehner and other House Republicans discussed the House Ethics Committee’s investigation of then Speaker Newt Gingrich. The Martins later delivered a tape of the conversation to McDermott, who was then the ranking Democrat on the House Ethics Committee.

McDermott later provided copies to The New York Times, The Atlanta-Journal Constitution, and Roll Call, a newspaper that covers Congress. All three newspapers ran stories about the conversation, which included a discussion of Gingrich’s alleged ethical improprieties, and The New York Times ran the story on the front page.

Boehner subsequently sued McDermott under provisions of the federal wiretap law, which prohibits the interception and disclosure of private telephone conversations. In late July 1998, the federal District Court in Washington, D.C., dismissed Boehner’s claim against McDermott for civil damages, concluding that McDermott’s receipt of the tape recording did not violate wiretapping laws, which prohibit only interception and disclosure, and that disclosure of the tape to the news media also was protected by the First Amendment.

(Boehner v. McDermott; McDermott’s Counsel: Frank Cicero Jr., Chicago)

© 1999 The Reporters Committee for Freedom of the Press

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