Court Settles Fight Between Boehner, McDermott
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A 10-year-old political dispute was resolved today at the federal appeals court here in Washington, D.C.
As NPR's Ari Shapiro reports that the case about politics, free speech and privacy rights and it may be the first time one member of Congress has sued another.
ARI SHAPIRO: The case started with an illegally recorded telephone conversation. A couple in Florida intercepted a conference call among Republican congressional leaders. One was Newt Gingrich, who was House Speaker at the time. And the discussion was about allegations that he had violated ethics rules.
The couple in Florida taped the conversation in violation of the law and they gave the tape to the top Democrat on the House Ethics Committee: Congressman Jim McDermott of Washington. Taping the call was clearly illegal, no question there.
The couple pleaded guilty and paid a fine. The question that's been bouncing around the courts for the last 10 years is whether what happens next was illegal, too. Congress Jim McDermott played the tape for a New York Times reporter who published an account of the call the next day.
Congressman John Boehner, who is among those on the callback in 1996, sued, saying McDermott violated his privacy. McDermott says he was exercising his freedom of speech. Today's 5-4 ruling from the D.C. Circuit Appeals Court says Boehner was right. McDermott broke the law when he played the tape for the New York Times.
But there's a catch. The court said McDermott is only guilty because he was a member of the House Ethics Committee. The majority opinion reads, when Representative McDermott became a member of the Ethics Committee, he voluntarily accepted a duty of confidentiality that covered his receipt and handling of the illegal recording.
He, therefore, had no First Amendment right to disclose the tape to the media. Neil Richards teaches just First Amendment and Privacy Law at Washington University in St. Louis.
Professor NEIL RICHARDS (First Amendment and Privacy Law, Washington University): The D.C. Circuit made clear that it was the role of McDermott on the House Ethics Committee, which has duty the confidentiality for its members and where the House itself had found that there was a violation (unintelligible). That that was the wrong here, not the illegal interception.
SHAPIRO: So does that mean the New York Times is breathing a sigh of relief today?
Prof. RICHARDS: I think so. Was the New York Times is on the House Ethics Committee?
SHAPIRO: The New York Times is one of more than a dozen media organizations that file brief supporting McDermott. And while McDermott personally lost today, the news organizations won on the larger question of their legal liability when they distribute, what, someone else obtained illegally.
Stanley Brand used to be counsel to the House of Representatives. He advised the member who first received the tape to hand it over to the House Ethics Committee. Now, more than 10 years later, he thinks this case will have little consequence beyond political bragging rights?
Mr. STANLEY BRAND (Former Counsel, House of Representatives): This case was always about the unique context that occurred in, which was a fight under the dome between two political factions. And I think it doesn't really advance the law, the First Amendment, one way or the other.
SHAPIRO: At least not so resolved of today's ruling, which may still be reviewed by the Supreme Court.
Ari Shapiro, NPR News, Washington.
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