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Full D.C. Circuit Rules McDermott Had No First Amendment Right to Leak Phone Tape Due to Ethics Committee Rules

In the most recent segment of a 10-year legal battle, the full panel of the U.S. Court of Appeals for the District of Columbia Circuit ruled May 1, 2007 that the First Amendment does not protect Rep. Jim McDermott (D-Wash.) from liability for disclosing an illegally recorded audiotape.

The split 4 to 1 to 4 en banc decision in Boehner v. McDermott, 484 F.3d 573 (D.C. Cir. 2007), affirmed a March 28, 2006 ruling by a three-judge panel, but on different grounds. (See “Federal Appeals Court Finds McDermott in Violation of Wiretap Law” in the Winter 2006 issue of the Silha Bulletin.)

The case began in December 1996 when a Florida couple, John and Alice Martin, used a police scanner to intercept and record a conference call involving several Republican leaders including Rep. John Boehner (R-Ohio), who participated by cell phone, and then-House Speaker Newt Gingrich (R-Ga.), court documents said. In the recording, the officials discussed strategy for dealing with allegations of ethics violations against Gingrich. McDermott, then-ranking Democrat on the House Ethics Committee, acquired the tape from the Martins and shared it with reporters at The Atlanta Journal-Constitution, Roll Call, and The New York Times. Both The Times and The Journal-Constitution published stories based on the recording in January 1997, but neither named McDermott or the Martins.

After the newspaper stories ran, the Martins held a press conference and identified McDermott as the congressman to whom they gave the tape, court documents said. The Martins pleaded guilty to illegally intercepting the telephone conversation under the federal wiretap law, 18 U.S.C. § 2511(1)(a), and were fined $500. McDermott turned the tape over to the House Ethics Committee and resigned from his position on the committee. Shortly after McDermott’s resignation from the ethics committee, Boehner filed a civil suit in Federal District Court in Washington D.C. seeking damages for McDermott’s disclosure of the illegally intercepted communications.

Federal law, 18 U.S.C. § 2511(1)(c), prohibits intentional disclosure of any communication a person knows or has reason to know was illegally recorded. It also provides for civil liability under 18 U.S.C. § 2520.

In the 2006 ruling on Boehner’s suit, a three-judge panel of the D.C. Circuit Court affirmed the lower court ruling that McDermott had illegally disseminated the tape because he knew it was unlawfully obtained. Judge A. Raymond Randolph, writing for the majority of the panel held that “[b]ecause there was no genuine dispute that Representative McDermott knew the Martins had illegally intercepted the conversation, he did not lawfully obtain the tape from them.”

The court affirmed the $10,000 damage award along with $50,000 in punitive damages and attorney fees. According to published reports, the total award amounts to more than $600,000.

On June 23, 2006 the court vacated the ruling and agreed to rehear the case en banc. (See “Boehner v. McDermott Reheard Before Full D.C. Court of Appeals” in the Fall 2006 issue of the Silha Bulletin.) After rehearing the case, the full court issued its split decision.

In an opinion written by Randolph, four judges agreed with the majority in the 2006 case that McDermott had illegally disclosed an unlawfully obtained tape. Because the tape was unlawfully obtained, they reasoned, its disclosure was not protected by the First Amendment. Judge Thomas B. Griffith concurred in the result, but on narrower grounds. He wrote in a separate opinion that had McDermott’s conduct not been a violation of the U.S. House’s ethics rules, he would have agreed with the four dissenters that disclosure of the tapes was protected under Bartnicki v. Vopper, 532 U.S. 514 (2001).

In Bartnicki, a radio talk show host was sued after broadcasting portions of an illegally recorded cell phone conversation. The U.S. Supreme Court held in 2001 that the First Amendment protected the radio host because the information on the tape was in the public interest and he had played no part in the illegal interception of the conversation.

[Lee Levine, the attorney who represented the media defendants in Bartnicki, delivered the Annual Silha Lecture in October 2001. For more on the case see “U.S. Supreme Court Rules In Historic Bartnicki Case” in the summer 2001 issue of the Silha Bulletin.]

In the 2006 Boehner ruling, the three-judge panel had distinguished Bartnicki by holding that McDermott knew, or should have known, that the conversation had been illegally intercepted. In Bartnicki, the tape in question was left anonymously in the radio host’s mailbox, whereas McDermott received the tape with a letter detailing how it was recorded.

After rehearing the case en banc, only four judges agreed Bartnicki could be distinguished on that point. A majority of the court agreed that Bartnicki controlled and the government may not punish a person for disclosing illegally intercepted communication so long as that person did not participate in the illegal interception. “There is no distinction of legal, let alone constitutional, significance between our facts and those before the Court in Bartnicki,” Judge David B. Sentelle wrote for the court.

But Randolph, also writing for a majority on a separate issue, held that Bartnicki did not apply to the facts before the court because McDermott had voluntarily accepted a duty not to disclose the communication and waived his First Amendment protections when he took an oath to comply with House Rules. House Ethics Committee Rule 9 imposes a duty not to “disclose any evidence relating to an investigation to any person or organization outside the Committee unless authorized by the Committee.”

Randolph cited confidentiality rules for lawyers and grand jurors as examples of similar prohibitions on disclosure of lawfully acquired communication that do not violate the constitution.

The court further relied on United States v. Aguilar, 515 U.S. 593 (1995), where the U.S. Supreme Court held that certain government officials “may have special duties of non-disclosure.” In Aguilar, a federal judge learned of an investigative wiretap from another judge and told the subject of the wiretap of its existence. He challenged his conviction for violating 18 U.S.C. 2232(c) on First Amendment grounds but lost.

Like Aguilar, the court held, McDermott had a “special duty” of confidentiality based on the House Ethics Committee rule. “If the First Amendment does not protect Representative McDermott from House disciplinary proceedings, it is hard to see why it should protect him from liability in this civil suit. Either he had a First Amendment right to disclose the tape to the media or he did not,” Randolph wrote.

The Martins delivered the tape to McDermott because of his position on the House Ethics Committee, so his conduct regarding the tape was bound by House rules. “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 Martins’ illegal recording. He therefore had no First Amendment right to disclose the tape to the media,” the court held.

In a short concurring opinion, Griffith emphasized the limits of the court’s holding. “I believe it is worth noting that a majority of the members of the Court – those who join Part I of Judge Sentelle’s dissent – would have found [McDermott’s] actions protected by the First Amendment. Nonetheless, because Representative McDermott cannot here wield the First Amendment shield that he voluntarily relinquished as a member of the Ethics Committee, I join Judge Randolph’s opinion in concluding that his disclosure of the tape recording was not protected by the First Amendment,” he wrote.

Judge David B. Sentelle and three other judges dissented. Sentelle argued that Aguilar and other cases cited by the court were not helpful and that determination of the Bartnicki issue should settle the matter.

The dissent recognized that the cases cited by the majority might be persuasive had the court considered the validity of the congressional rules as applied to McDermott’s conduct. But the court sat to decide whether a statute imposed civil liability, not whether congressional rules apply. “We are reviewing a case governed by Bartnicki, and Bartnicki’s holding should prevail,” Sentelle wrote.

According to a May 2, 2007 story by Adam Liptak in The New York Times, news organizations greeted the ruling with relief. Theodore J. Boutrous Jr., a lawyer for the news organizations, was quoted as saying “[i]t’s a huge win in terms of the free speech and free press interests.” Had the opinion of the three-judge panel been upheld, the newspapers that printed the stories could have been liable as well as McDermott, he said.

The Associated Press (AP) reported on July 9, 2007 that McDermott will seek an appeal before the U.S. Supreme Court. “With all due respect to the Court of Appeals, the constitutional issues involved here are much too important to be confused by a split decision,” McDermott said in a July 6 statement to the AP. The case reached the Supreme Court once before in 2001, but the high court remanded for reconsideration in light of the then-recently decided Bartnicki case.

The Seattle Post-Intelligencer reported on May 28, 2007 that if the ruling stands, it could cost McDermott more than $1 million in damages and legal fees. Boehner offered to settle the case early on for $10,000 donated to charity and an apology, but McDermott refused, the Post-Intelligencer reported.

The May 2, 2007 New York Times story also quoted a statement from Boehner following the ruling. “When you break the law in pursuit of a political opponent, you’ve gone too far. Members of Congress have a responsibility not only to obey the laws of our country and the rules of our institution, but also to defend the integrity of those laws and rules when they are violated,” Boehner said.

– Michael Schoepf, Silha Research Assistant