Yesterday's edition of The Hill had a piece about an ongoing legal battle launched by Congressman John Boehner (R-OH) against Congressman Jim McDermott (D-WA).
McDermott’s legal predicament stems from his leaking to several newspapers a transcript of an audiotape recorded by a Florida couple with eves-dropping equipment of a conference call of GOP leaders on how to handle issues surrounding then-Speaker Newt Gingrich (R-Ga.).In these days of the DeLay scandal, it's easy to forget how contentious things were back in the heyday of Newt Gingrich. His hubris brought him down. And a few missteps along the way illuminated the issue. One of those missteps was that conference call among GOP House leaders that is at the subject of the case.
Boehner sued McDermott for violating his privacy and McDermott has since admitted that he provided the tape to reporters.
McDermott, however, has consistently argued that the First Amendment protected his decision to share confidential material with the media.
A couple in Florida overheard the conversation on their scanner. When they figured out what was going on, they taped it. They handed the tape to Rep. Jim McDermott who was the ranking Democrat on the Ethics Committee investigating Gingrich. McDermott gave the tape to the press.
So, why is Boehner suing? John Boehner was on that conference call from his cell phone in Florida. It's because of him that the call could be taped. Boehner (who is one of the "tort reformers" in the House - hypocrite) got a lawyer and sued McDermott back in 1998. This case has been up and down in the Courts for years. In the latest go round, Boehner prevailed for the first time. He was awarded $60,000 in damages and $50,000 in punitive damages -- plus legal fees which are over $600,000 so far. The D.C. Court of Appeals upheld that decision last week.
So why should this case interest bloggers -- on both sides of the spectrum? A Supreme Court case, Bartnicki v. Vopper, with similar facts found in favor of a reporter based on the First Amendment. However, despite that decision, a lower court determined that the facts in the McDermott case were different because he knew the tape was illegally obtained. In a law review article, "Tales of the Tapes" which appeared in the Fall 2004 issue of "News Media and the Law," author Grant Penrod explained the cases and how they affect journalists:
The issue is incredibly important for the news media, said Lee Levine, a media attorney who represented Vopper at the Supreme Court.Okay, you have to know this is serious if I am quoting law review articles. But this is key....McDermott got a very hot and salient piece of information -- which was factual -- and provided it to the media. And, it was a big, big story for the major newspapers at the time. But, the two folks who obtained it, did so illegally. McDermott had nothing to do with how the information was obtained. But now, McDermott may be found liable.
"Are we going to permit the government to regulate truthful transmission [of information] on matters of public concern because of someone else's illegality?" he said. On a practical level, reporters regularly receive information that arguably has some flaw in how it was obtained, such as through a leak or a whistleblower, he added.
It seems to me that Boehner is pursuing this case out of political vengeance. He desperately wants to be back in leadership. McDermott is a great target for the right wing. His position on the Ethics Committee helped bring down Gingrich which they've never forgotten. And, McDermottt is a stalwart liberal who never wavers.
This case impacts bloggers who get tips and information all the time. If Boehner's case holds, every blogger could be liable for the dissemination of information provided to them by sources.....if the source didn't get that info. legally and the blogger had any knowledge of how it was obtained. "Tales of the Tape" provided this analysis:
Before Boehner, Levine said it was assumed that if the media did not participate in an illegal interception or recording, publication of the contents of the recording was protected by the First Amendment, but that is no longer clear.Yikes. It doesn't sound that clear...and "should be OK" isn't all that comforting. This will have a chilling effect. Even the MSM gets it. The major papers and networks have filed amicus briefs in the case on McDermott's side.
"What is clear," Levine says, "is that if you receive an illegally obtained document . . . literally over the transom without any forewarning that it is coming and it is on a matter of public importance, you should be OK in publishing."
So Boehner is out for vengeance against McDermott. In that quest, he could seriously stifle the flow of information. Fortunately, this case isn't over yet. McDermott is appealing and it will probably end up in the Supreme Court. It is costing McDermott a bundle....which is probably part of the plan, too.
Pay attention to this one, folks.