Panel hears arguments on release of phone call tapes

D.C. CIRCUIT–A federal trial judge erroneously dismissed Rep. John Boehner’s (R-Ohio) lawsuit against Rep. James McDermott (D-Wash) over disclosure to The New York Times and other news organizations of a tape recording of an intercepted telephone conversation, Boehner’s attorney argued before a three-judge panel of the U.S. Court of Appeals in Washington (D.C. Cir.) in late April.

The taped conversation between Boehner and other House Republicans included discussions of then-Speaker Newt Gingrich’s alleged ethical improprieties.

During a late-April hearing, Boehner’s attorney, Michael Carvin, told Judges Douglas Ginsburg, David Sentelle, and A. Raymond Randolph that Boehner’s privacy interests had been invaded and that his private speech had been chilled by the disclosure of the contents of the cellular telephone conversation to multiple newspapers and, subsequently, to the public.

McDermott’s attorney, Frank Cicero Jr., countered Carvin’s argument by stressing the public importance of the contents of a conversation between elected leaders regarding an ongoing investigation of ethical improprieties in government and characterized Boehner’s purported privacy interest as “particularly weak, if not entirely ephemeral.”

Boehner was in Florida on vacation in 1996 when Florida residents John and Alice Martin intercepted a conference call in which Boehner and other House Republicans discussed the House Ethics Committee’s investigation of Gingrich. The Martins later delivered a tape of the conversation to McDermott, then the ranking Democrat on the House Ethics Committee, who later provided copies to The New York Times, The Atlanta Journal-Constitution, and Roll Call, a newspaper that covers Congress. All three newspapers ran stories about the conversation, and The New York Times ran the story on the front page. Boehner subsequently sued McDermott for civil damages under provisions of the federal wiretap law, which prohibits the interception and disclosure of private telephone conversations.

After hearing free-speech arguments by counsel for both parties, all three judges on the appellate panel questioned whether “disclosure” in the context of the federal wiretap law constitutes speech at all, thus questioning whether punishing McDermott’s disclosure of the contents of the recorded conversation even raises First Amendment concerns.

Sentelle specifically asked when “handing over a piece of plastic” becomes protected speech under the First Amendment, and Randolph reiterated the question, asking “Where’s his [McDermott’s] speech?”

Cicero answered that the disclosure was speech, as McDermott had handed over the contents of a conversation when he handed over the “piece of plastic.” Likewise, Theodore Boutrous, arguing on behalf of various media organizations who filed an amicus brief in support of McDermott, including The Reporters Committee for Freedom of the Press, said the disclosure clearly was protected speech because disseminating the tape was a political act intended to convey information on a matter of public interest. Boutrous asked the court to protect truthful speech about a matter of public interest and warned that the value of information brought before the public should not be judged by its source.

Ginsburg, however, stated that he saw no conflict between free speech and privacy in punishing McDermott’s disclosure of the illegally intercepted communication because the federal wiretap statute, in his opinion, does protect the free flow of speech by encouraging people to speak freely during private conversations.

In the final moments of argument, Carvin likened the contents of the intercepted conversation to personal property or copyrighted information. Carvin asserted that McDermott was not engaged in speech protected by the First Amendment when he turned over the contents of Boehner’s conversation to the press, but rather, was repeating speech that “belonged” to others.

The panel was considering Boehner’s appeal from a late July ruling from federal district Judge Thomas Hogan in Washington, D.C. Hogan had dismissed Boehner’s claim against McDermott for civil damages, concluding that McDermott’s receipt of the tape recording did not violate wiretapping laws, which prohibit only interception and disclosure.

For purposes of McDermott’s motion to dismiss, Hogan presumed that McDermott violated the letter of the wiretapping laws by disclosing the tape recordings with knowledge of the unlawful interception. However, Hogan then concluded that disclosure of the tape to the news media was protected by the First Amendment. (Boehner v. McDermott; McDermott’s Counsel: Frank Cicero Jr., Chicago; Counsel for amici: Theodore J. Boutrous Jr., Washington, D.C.)