Section V

On-Line Issues: B

B.  Release of Intercepted Tape 

Sparks Capitol Hill Legal Battle 


      A federal statute prohibits private parties from intentionally intercepting wire, oral, and electronic communications, and forbids any person from disclosing the contents of such a communication if the person knows it was intercepted illegally.  In a high-profile case involving members of Congress, a third party passed an illegally obtained communication to the press.  The question became whether privacy concerns would trump freedom of speech.  By the end of 2002, the case of Boehner v. McDermott had gone from federal district and appellate courts to the U.S. Supreme Court and back again without answering this question.



      This case dripped with political overtones because it pitted an influential House Republican, Rep. John A. Boehner (R-Ohio), against Rep. James A. McDermott, a Democrat from Washington State.  On Dec. 21, 1996, Rep. Boehner participated in a conference call with members of the Republican Party leadership, including Reps. Dick Army and Tom DeLay, and Speaker of the House Newt Gingrich.  At the time of the conversation, Rep. Gingrich was being investigated by the House Committee on Standards of Official Conduct.  Rep. Boehner was chairman of the House Republican Conference. The participants discussed strategy regarding an expected Ethics Subcommittee announcement of Rep. Gingrich’s agreement to accept a reprimand and to pay a fine in exchange for the committee’s promise not to hold a hearing.

      Rep. Boehner was driving through northern Florida when he joined the conference call via the cellular telephone in his car.  John and Alice Martin, who lived in Florida, used a radio scanner to eavesdrop on the conversation.  They tape recorded the call and later met with Rep. Karen Thurman (D-Fla.) to discuss both the tape and the possibility of their receiving immunity for their illegal interception of the call.

      At Rep. Thurman’s suggestion, on Jan. 8, 1997, the Martins personally delivered the tape to Rep. McDermott because he was the ranking Democratic member of the House Ethics Committee.  The Martins’ cover letter explained that the tape contained “a conference call heard over a scanner,” and closed with this statement: “We understand that we will be granted immunity.”  The next day, Rep. McDermott gave copies of the tape to the New York Times, the Atlanta Journal-Constitution, and Roll Call (a Capitol Hill newspaper).  Because the tape revealed Rep. Gingrich engaging in conduct that might have violated the terms of the agreement, it had great news value for the three newspapers, and each ran a story on the party leaders’ conversation.

      After the newspaper accounts appeared, the Martins publicly confessed their role in recording the conversation and admitted giving a copy of their tape to Rep. McDermott.  On Jan. 13, 1997, Rep. McDermott provided his fellow Ethics Committee members with the Martins’ tape (or a copy of it) and resigned from the committee.  The committee chairman, Rep. Nancy Johnson (R-Conn.), forwarded the tape to the Department of Justice.  The Justice Department prosecuted the Martins, who pled guilty to violating the federal statute and paid a $500 fine.


Rep. Boehner Sues Rep. McDermott

      But that was not the end of the case.  One year later Rep. Boehner brought suit against Rep. McDermott, invoking the civil liability provisions of the Electronic Communications Privacy Act.  Claiming that Rep. McDermott had illegally disclosed the contents of the conference call, knowing it to have been illegally intercepted, Rep. Boehner sought statutory damages of  $10,000 pursuant to 18 U.S.C. Sec. 2520(c)(2)(B).  Crucially, Rep. Boehner also brought a claim under a Florida statute identical to the federal law (18 U.S.C. Sec. 2511(1)(c)).

      The district court found ample reason to dismiss Rep. Boehner’s claim without considering the Florida statute because Rep. McDermott argued that the complaint issued from Sec. 2511(1)(c), as applied to him, violated the Free Speech Clause of the First Amendment.  He claimed, and the district court agreed, that the First Amendment “prohibits the punishment under any of the statutes cited in the Complaint for the disclosure of truthful and lawfully obtained information on a matter of substantial public concern.”  Motion to Dismiss at 1.  

      Thus, the district court concluded that Rep. Boehner’s complaint failed to meet its burden of proof: No relief could be granted because the First Amendment precluded holding Rep. McDermott civilly liable under 18 U.S.C. Sec. 2511(1)(c) for his alleged disclosure of the illegally intercepted tape.  The district court ruled that the federal prohibition on disclosure violated the First Amendment in this case because: (1) Rep. McDermott had legally obtained the tape recording regardless of how it was made; and (2) the tape contained conversations relating to matters of public concern that were newsworthy.

      However, the U.S. Court of Appeals for the District of Columbia Circuit reversed the lower court in Boehner v. McDermott, 191 F.3d 463 (1999).  The D.C. Circuit questioned whether an individual’s giving of a tape to a newspaper was protected speech.  The court did not buy Rep. McDermott’s defense; instead, the judges ruled that what he did was not speech per se.  In fact, the court of appeals argued that if Rep. McDermott’s defense was to be taken seriously, it could have applied to the Martins (although no one suggested they should be let off on First Amendment grounds). 

      The court argued that Rep. McDermott’s liability rested on the truth of two allegations: that he “caused a copy of the tape” to be given to the newspapers; and that he “did so intentionally and with knowledge and reason to know that the recorded phone conversation had been illegally intercepted (as the cover letter on its face disclosed).”  Id. at 467.  The court claimed that while Rep. McDermott’s behavior may have conveyed a message, it was essentially conduct and therefore not protected by the First Amendment.

      Using United States v. O’Brien, 391 U.S. 367 (1968), as a rationale, the court held that the federal statute protecting private conversations advanced a substantial governmental interest: Rather than chilling speech it actually promoted speech.  Said the court: “Eavesdroppers destroy the privacy of conversations.  The greater the threat of intrusion, the greater the inhibition on candid exchanges.  Interception itself is damaging enough.  But the damage to free speech is all the more severe when illegally intercepted communications may be distributed with impunity.”  Boehner, 191 F.3d at 468. 

      The Supreme Court granted certiorari in Boehner v. McDermott.  But in May 2001 the Court remanded the case to the D.C. Circuit for further consideration in light of the Supreme Court’s ruling in Bartnicki v. Vopper, 532 U.S. 514 (2001).  The Bartnicki ruling held that the First Amendment trumped the privacy goal of the federal statute.  In Bartnicki, the Court ruled that the First Amendment protected the disclosure of the contents of a cellular telephone conversation about a labor dispute, despite the fact that the conversation had been obtained through a third party’s interception in violation of 18 U.S.C. Sec. 2511(1).  (See The First Amendment and the Media – 2002 at 209.)

      In December 2001, the D.C. Circuit issued a new ruling reflecting the influence of the Bartnicki decision.  The court believed the constitutional issues raised by the Supreme Court could more readily be decided if Rep. Boehner were given an opportunity to amend his complaint, which he was free to do under FRCP 15(a) because Rep. McDermott had not yet filed an answer to the complaint.  The court of appeals also concluded that it would benefit from having the district court pass upon the arguments that had taken on new importance after Bartnicki.  Thus, the D.C. Circuit remanded the case to the district court, but not before calling upon Congress to clarify 18 U.S.C. Sec. 2511(1) of the criminal code.  The district court, which had already come down on the First Amendment side, was expected once again to rule in favor of Rep. McDermott.

      The Bartnicki ruling was a significant victory for the press and for the protection of matters of public concern.  The question in the Boehner case is whether it will be a setback for those seeking to protect the privacy of telephone and other broadcast conversations, or another victory for the First Amendment.


--Craig R. Smith   

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