Appellate judges send wiretapping case back to trial court

From the Winter 2002 issue of The News Media & The Law, page 46.

A dispute between two congressmen involving an intercepted phone conversation that was leaked to newspaper reporters will return to a federal trial court for arguments.

The U.S. Court of Appeals in Washington, D.C. (D.C. Cir.) on Dec. 21 remanded Rep. John Boehner’s (R-Ohio) lawsuit against Rep. James McDermott (D-Wash.) to the federal District Court in Washington, D.C.

The appellate court declined to decide whether the Supreme Court’s decision last May in Bartnicki v. Vopper disposed of Boehner’s civil complaint. Instead, the three-judge appellate panel said Boehner should be allowed to amend his complaint. In addition, “we would benefit from having the district court pass upon the arguments that have taken on new-found importance after Bartnicki,” the judgment said.

In Bartnicki, the Supreme Court ruled that a radio talk show host was not liable for airing information of public concern that was obtained unlawfully by an unknown source but without the help of the radio host. Michael Carvin, Boehner’s attorney, argued before the appeals court in November that his client’s case is different. Unlike the radio host in Bartnicki, who did not know who had illegally intercepted a phone call, McDermott knew who had intercepted the call to which Boehner was a party, Carvin argued.

Boehner sued McDermott in 1998 for violating a federal wiretapping law by illegally disclosing the contents of an illegally intercepted phone call. A Florida couple had recorded a cell-phone conference call in late 1996 among House Republicans — including Boehner — who were discussing an ethics investigation of then-Speaker of the House Newt Gingrich (R-Ga.).

The couple gave a copy of the tape to McDermott, the ranking Democrat on the House Ethics Committee that was investigating Gingrich. McDermott gave the tape to The New York Times, the Atlanta Journal-Constitution and Roll Call, a newspaper that covers Congress, all of which published stories about the conversation. (Boehner v. McDermott) — MD