Media Law Prof Blog

Editor: Christine A. Corcos
Louisiana State Univ.

Wednesday, May 2, 2007

DC Circuit Rules Congressman Did Not Have First Amendment Right To Leak Phone Call To Media

The DC Circuit has ruled (again) that Congressperson Jim McDermott did not have a First Amendment right to leak a tape recording of a phone call to members of the media. The case was on remand from the U. S. Supreme Court. Alice and John Martin originally intercepted the call, made among several members of the House of Representatives, including then House Speaker Newt Gingrich, recorded it on their police radio scanner, and gave it to a Florida Congressperson's staffers.  From there the tape became quite a hot potato, making its way to the Congressperson's Washington office. At that point, since the Martins turned up in Washington, the Washington staff of the Congressional Representative returned the tape to the Martins. They subsequently gave it to Representative McDermott, a Democratic member of the House Ethics Committee.

Because Representative McDermott thought the tape had news value, particularly with regard to Speaker Gingrich's behavior, he released it to the media. When charged with a violation of 18 U.S.C. § 2511(1)(c), Representative McDermott claimed a defense under the First Amendment. Said the court, "All members of the Ethics Committee, including Representative McDermott, were subject to Committee Rule 9,
which stated that “Committee members and staff shall not disclose any evidence relating to an investigation to any person or organization outside the Committee unless authorized by the
Committee.”5 This rule recognizes the unique role of the Ethics Committee and reflects a desire “to protect the rights of individuals accused of misconduct, preserve the integrity of the
investigative process, and cultivate collegiality among Committee members...If the First Amendment does not protect Representative McDermott from House disciplinary proceedings, it is hard to see why it should protect him from liability in this civil suit. Either he had a First Amendment right to disclose the tape to the
media or he did not. If he had the right, neither the House nor the courts could impose sanctions on him for exercising it. If he did not have the right, he has no shield from civil liability or from discipline imposed by the House. In that event, his civil liability would rest not on his breach of some ethical duty, but on his violation of a federal statute for which he had no First Amendment defense...."

The case is Boehner v. McDermott, U.S.C.A. (2007)(No. 98cv00594); 2007 U. S. App. LEXIS 10001; 2007 WL 1246438 (C.A.D.C.).

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