Congressman pursues case despite high court ruling on wiretapped conversations

Wednesday, May 30, 2001

Ohio congressman John Boehner plans to pursue his four-year-old case against Rep. Jim McDermott for releasing the contents of an illegally intercepted cellular phone conversation even though the U.S. Supreme Court last week determined that the First Amendment trumped privacy rights in a similar case.

The justices, in a 6-3 decision in the joined cases of Bartnicki v. Vopper and U.S. v. Vopper, said that a radio host cannot be sued for airing an illegally taped telephone conversation that he obtained legally.

But Michael Carvin, an attorney representing Boehner, said the exploits of a radio jockey don’t compare with that of a congressman doling out tapes of an intercepted conference call among Republican leaders. The Bartnicki case, he contends, is hardly a guiding light for Boehner v. McDermott.

“This is not a controlling case for us mainly because congressman McDermott is a public official, and so he could be told not to disclose stuff that comes to him,” Carvin said in a telephone interview.

But Frank Cicero, McDermott’s attorney, said his client hardly gives up his First Amendment rights to publicize matters of public interest simply because he holds a political office.

The Supreme Court appears to agree. Yesterday, it waived a ruling by the U.S. Circuit Court of Appeals for the District of Columbia that revived Boehner’s lawsuit against McDermott, D-Wash. The justices instructed the lower court to resolve the case in light of the Bartnicki ruling.

Boehner first filed his lawsuit in 1997 after a Florida couple, using a scanner, intercepted and recorded a conference call of Republican House members discussing an ethics investigation of then-House Speaker Newt Gingrich, R-Ga.

McDermott, then the ranking Democrat on the House Ethics Committee, received a copy of the tape, the content of which eventually surfaced in articles by The New York Times, The Atlanta Journal-Constitution and Roll Call.

In his lawsuit, Boehner, a participant in the intercepted phone call, claims that McDermott broke a federal wiretapping law by releasing the contents of an illegal tape. The couple later pleaded guilty to intercepting the call and paid fines of $500 each.

But McDermott argued that the First Amendment protected his right to distribute the information, particularly since he didn’t procure it illegally.

A federal judge dismissed the lawsuit in 1998, but the appeals court revived it in a 2-1 ruling in 1999. One judge wrote that McDermott’s duty not to disclose the tape stemmed from “every citizen’s responsibility to obey the law.”

McDermott appealed to the U.S. Supreme Court. But the justices, faced with several related cases, opted to hear Bartnicki first.

In that decision, Justice John Paul Stevens, writing for the majority, wrote that in cases such as Bartnicki, “privacy concerns give way when balanced against the interest in publishing matters of public importance.”

He wrote further that: “A stranger’s illegal conduct does not suffice to remove the First Amendment shield from speech about a matter of public concern.”

But the court’s three most conservative justices, William Rehnquist, Antonin Scalia and Clarence Thomas, dissented, arguing that Congress had the power to protect the public’s privacy right by enacting the wiretap law.

“Surely the interest in individual privacy, at its narrowest, must embrace the right to be free from surreptitious eavesdropping on, and involuntary broadcast of, our cellular telephone conversations,” Rehnquist wrote.

Press advocates cheered the ruling even though the court declined to offer a broader ruling on the constitutionality of any restrictions on publication of truthful information.

Barbara Cochran, executive director of the Radio-Television News Directors Association, said the Bartnicki decision was a strong one, despite being restricted to material of compelling public interest that was obtained legally.

“We’re encouraged that they did rule this way,” Cochran said in a telephone interview. “But it’s not crystal clear. There could be another instance where a news organization published something that had come from a wiretap or recorded cell phone conversation that didn’t have an overriding public interest and the court might cast out on it.”

She hesitated to speculate whether the Boehner case might be one of those. But she noted that the content of the intercepted phone conversation clearly was of public interest.

That doesn’t matter, said Chris Hoofnagle, counsel for the Electronic Privacy Information Center, a group that contends that privacy interests should have won out in the Bartnicki case.

“There is a greater interest, and, I think, a larger free-speech interest in the person who wants to communicate privately even on a matter of public concern,” Hoofnagle said in a telephone interview.

He said he worried that rulings such as the one in Bartnicki might result in the escalated use of surveillance equipment to obtain information about people.

But noted First Amendment attorney Floyd Abrams said the Bartnicki decision stands consistent with prior rulings of the Supreme Court regarding the press when it lawfully gathers information about newsworthy events. Abrams prepared a friend-of-the-court brief on behalf of more than a dozen news organizations arguing that the news media should not be held responsible for what the cell-phone eavesdropper did.

“It is a significant ruling, and it would have been a disastrous loss if the court had ruled otherwise,” Abrams said in a telephone interview. “Indeed, it would have been the first time the Supreme Court had ever found the press liable when it published truthful information, lawfully obtained, about newsworthy material.”

And he figures the court system eventually will side with McDermott in the Boehner case.

“Factually, there are distinctions, but there is nothing that should lead the Court of Appeals on remand to refuse to apply Bartnicki,” Abrams said. “If anything, the information in Boehner is more newsworthy than the information in Bartnicki.”

Abrams also said he doubted that the courts would make distinctions between whether the speaker or publisher is a member of the press, the government or some other group.

“I think speakers will be treated the same and that congressmen are unlikely to be held to experience less of a right to First Amendment free speech than anyone else,” he said.

Carvin disagreed, saying in a telephone interview that McDermott, as a government official, enjoys different liberties and obligations. He said McDermott had a responsibility to keep the tape close to his vest instead of circulating it among the news media.

But Cicero said such a rationale is wrong and that people don’t give up some aspects of free speech just because they seek office.

“I don’t think there are any distinctions here that creates a public-official exemption,” he said.

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