Wiretapping case involving congressmen gets another hearing

November 1, 2001

NMU

D.C. CIRCUIT

Privacy

Nov 1, 2001

Wiretapping case involving congressmen gets another hearing

A three-judge appellate court panel heard arguments in a case over an illegally intercepted phone call, after the U.S. Supreme Court ordered it to reconsider whether the recipient’s disclosure of the tape to the media was protected by the First Amendment.

Attorneys for two congressmen returned today to the U.S. Court of Appeals in Washington, D.C. (D.C. Cir.) to debate whether a recent U.S. Supreme Court decision on intercepted phone conversations leaked to reporters renders a trial in their case unnecessary.

The appellate court must decide whether the Supreme Court’s decision in May in Bartnicki v. Vopper disposes of Rep. John A. Boehner’s (R-Ohio) lawsuit against Rep. James A. McDermott (D-Wash.).

The dispute began after a Florida couple recorded a cell-phone conference call in late 1996 among House Republicans — including Boehner — who were discussing an ethics investigation of then-Speaker Newt Gingrich (R-Ga.). The couple gave a copy of the tape to McDermott, the ranking Democrat on the House Ethics Committee that was investigating Gingrich. McDermott gave the tape to The New York Times, The Atlanta Journal-Constitution and Roll Call, a newspaper that covers Congress, all of which published stories about the conversation.

Boehner sued McDermott in 1998 for violating a federal wiretapping law by illegally disclosing the contents of an illegally intercepted conference call. A federal district court dismissed the case, but the D.C. appellate court reversed.

McDermott then asked the Supreme Court to review the lawsuit.

On May 29, the high court ordered the D.C. appellate court to reconsider Boehner’s lawsuit in light of Bartnicki. In Bartnicki, the Supreme Court ruled that a radio talk show host was not liable for publishing information of public concern that was obtained unlawfully by an unknown source but not with the help of the radio host.

At oral arguments today before a three-judge appellate panel, Michael A. Carvin, attorney for Boehner, said his client’s case is different from Bartnicki. Unlike the radio host in Bartnicki who did not know who had illegally intercepted a phone call, McDermott knew the identities of the Florida couple, Carvin argued.

“The question becomes, was McDermott acting illegally in accepting the tape?” Judge A. Raymond Randolph said.

Carvin argued that McDermott “aided, abetted and encouraged” the Florida couple, John and Alice Martin. One issue is whether McDermott promised the Martins immunity from charges of breaking the federal wiretapping law. The Martins eventually were charged, pleaded guilty and paid a fine of $500 each.

Randolph asked Frank Cicero Jr., McDermott’s attorney, whether it would be a crime for someone to pay the Martins for information they had obtained illegally.

“That’s not the case here. There’s no allegation of quid pro quo” against McDermott, Cicero said.

Randolph responded, “We don’t know whether it happened because we haven’t heard any evidence.”

The comment was consistent with the court’s previous opinion, written by Randolph, that the case should be remanded to the federal district court for trial.

Cicero argued that the case is identical to Bartnicki. McDermott did not participate in the illegal interception of the phone call, and the conversation involved a matter of public concern. He said it doesn’t matter that McDermott acquired the tape directly from the person who intercepted the call.

A friend-of-the-court brief submitted by several media companies and the Reporters Committee for Freedom of the Press argues that the First Amendment interest in publishing matters of public importance outweighs Boehner’s privacy concerns.

A ruling could take several months, Carvin said.

(Boehner v. McDermott; McDermott’s counsel: Frank Cicero Jr., Chicago) — MD

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