The eight-year legal dispute between U.S. Reps. John Boehner and James A. McDermott has the elements and plot twists of the most intriguing kinds of Capitol Hill dramas, and it still has no final episode.
First, there was the over-the-phone strategy session among top House Republicans just before their leader began tumbling from power — a call illegally intercepted and taped by a Florida couple on their police scanner.
Then, the couple’s secret delivery of the tape to McDermott of Washington state, the ethics committee’s top Democrat, who leaked it to the press, got caught and was later slapped with a lawsuit by Boehner of Ohio, now the House Republican leader, whose cell-phone conversation was the one intercepted.
As the case has spiraled up and down in the courts _ with a panel of U.S. appeals court judges giving Boehner the most recent victory in March _ it has raised serious concerns for news organizations about whether an eventual win by the majority leader could endanger both sources who hand over information they’ve obtained illegally and the reporters who disclose it.
McDermott’s supporters note that some of history’s biggest scoops _ the Pentagon Papers, the Watergate and Clinton-Lewinsky scandals _ have come from sources who may have broken rules to make information public. For that reason, 18 major news organizations and journalism groups, including the New York Times, Dow Jones & Co., ABC, NBC and CBS, have backed McDermott.
They argue there was legitimate public interest in the illegally taped conversation, because then-House Speaker Newt Gingrich, R-Ga., was discussing how to contain the political fallout from his admission that he had broken House rules, a violation of an agreement he had made with the House ethics panel, which had asked Gingrich not to orchestrate his own defense.
In a friend-of-the-court brief, the news groups argued to the appeals court last year that a Boehner win could “jeopardize and chill traditional newsgathering.”
The lawyer representing those media groups, Theodore J. Boutrous Jr., said in a phone interview that the case’s most recent ruling could embolden government officials and private litigants to sue news organizations for publishing information that reporters gain from sources who have arguably broken the law. He described the March ruling by a three-judge panel of the U.S. Court of Appeals for the District of Columbia _ which McDermott is now asking the full appeals court to review _ as “extremely disturbing.”
“It threatens free-speech and free-press rights in a very grave way,” he said. “It really contradicts a long line of Supreme Court decisions that protect the ability of journalists and other individuals to speak freely about truthful information of public concern.”
The same three-judge panel issuing the March ruling sided with Boehner back in 1999, in the case’s first go-round through the federal courts. But McDermott appealed that earlier decision to the Supreme Court, and it subsequently took up a similar wiretapping case out of Pennsylvania, known as Bartnicki v. Vopper. The Supreme Court then sent the Boehner-McDermott case back to the lower courts, directing the judges to review the case again in light of the Bartnicki decision. That is how it ended up back in the appeals court this year.
In Bartnicki, a radio commentator and several other media organizations were sued after broadcasting an anonymously taped cell-phone conversation between a negotiator for the Pennsylvania State Education Association and the union’s president, who were representing teachers at Luzerne County’s Wyoming Valley West High School in negotiations with the local school board. During that May 1993 conversation, the union president said that if the school board didn’t give in, “we’re gonna have to go to their … homes … to blow off their front porches.”
The radio host, Frederick W. Vopper, aired the tape after getting it from an activist who found it in his mailbox.
The Supreme Court weighed whether free-speech rights protected those who knowingly disclosed the contents of an illegally intercepted phone conversation, which is prohibited under federal law. The majority decided that the radio commentator and other media parties in Bartnicki were protected and could not be sued by the union officers.
Writing for that majority, Justice John Paul Stevens said “privacy concerns give way when balanced against the interest in publishing matters of public importance.”
The question for lower courts after that decision was whether similar conclusions should be drawn in Boehner-McDermott. Both the federal district and the appeals courts have ruled in favor of Boehner. The appeals court judge who wrote the majority opinion said the Bartnicki case was different because, while the commentator got the tape from an anonymous source, McDermott “did not lawfully obtain the tape” from the couple.
In finding for Boehner, Judge A. Raymond Randolph wrote for the majority that the difference between the two cases “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.
“The former has committed no offense; the latter is guilty of receiving stolen property, even if the ring was intended only as a gift.”
But in a dissent that McDermott’s supporters hope will help persuade the full court to review the panel’s decision, Judge David B. Sentelle warned that the majority’s decision could be “fraught with danger.” He explained: “Just as Rep. McDermott knew that the information had been unlawfully intercepted, so did the newspapers to whom he passed the information. I see no distinction, nor has Rep. Boehner suggested one, between the constitutionality of regulating the communication of the contents of the tape by McDermott or by the Washington Post or The New York Times or any other media resource.
“For that matter, every reader of the information in the newspapers also learned that it had been obtained by unlawful intercept. Under the rule proposed by Rep. Boehner, no one in the United States could communicate on this topic of public interest” because of the initial illegal interception.
Boutrous said the appeals panel’s decision was alarming to newsgatherers because it could arguably be extended to news organizations and to newspaper readers.
But Michael A. Carvin, Boehner’s lawyer, argues that the appeals court has already rejected McDermott’s requests for a full-court hearing, and that the panel’s decision that McDermott broke the law should stand.
Asked about the news organizations’ concerns, Carvin said he believed that question would still be unresolved if the appeals court allows the three-judge panel’s ruling to stand without rehearing the case.
In his most recent brief on behalf of Boehner, Carvin noted that unlike the Bartnicki conversation, the privacy of his client’s conversation should be protected because it “involved no wrongdoing.”
“The intercepted call was a private communication among leaders of Congress about congressional business, and is therefore in special need of protection against illicit disclosure,” Carvin wrote in a brief filed May 18.