D.C. Circuit Grants New Hearing in Cell Phone Taping Case
 
July 10, 2006
 
Leo Rydzewski - Washington

The Court of Appeals for the District of Columbia Circuit has granted a request from United States Rep. James A. McDermott, a Washington state Democrat, to rehear his appeal of Boehner v. McDermott, a case involving the leak of an illegally taped cell phone call to the press. On March 28, 2006, a divided panel of the D.C. Circuit affirmed a finding that McDermott violated the federal Electronic Communications Privacy Act (ECPA) by providing the press with a taped, intercepted cell phone call that McDermott knew to be illegally obtained. The ECPA prohibits private parties from intercepting wire, oral and electronic communications, as well as from disclosing the contents of such communications if the party knows that it was illegally intercepted. At issue in Boehner is whether the First Amendment protects McDermott from liability under the ECPA.

The case was brought by Rep. John A. Boehner, a Republican from Ohio. On December 21, 1996, while driving in Florida, Boehner participated via cell phone in a telephone call with his fellow Republican leaders. The call concerned how to address then-House Speaker Newt Gingrich’s decision to accept a reprimand and pay a fine in exchange for the House Committee on Standards of Official Conduct’s agreement not to hold a hearing about his alleged ethics violations. The discussion revealed that Gingrich may have violated the agreement reached with the House Committee.

A couple, living near where Boehner was driving, listened in to the conversation on a radio scanner and tape recorded it. A few weeks later, the couple delivered the tape to McDermott, who at that time was serving as the ranking Democrat on the House Ethics Committee. The next day, McDermott delivered the tape to three newspapers and discussed the circumstances surrounding his receipt of the communication. Each newspaper ran a news story.

After an investigation by the Department of Justice, the Florida couple pled guilty to violating the ECPA and paid a fine. Boehner subsequently sued McDermott under the ECPA’s civil liability provision, contending that McDermott disclosed the contents of a taped telephone communication that he knew to be illegal.

The trial court granted McDermott’s motion to dismiss, finding that the First Amendment does not allow punishment for the disclosure of truthful information on a matter of public concern where someone else obtained the information unlawfully. The court found that McDermott had legally obtained the tape recording and that the tape recording contained newsworthy conversations that involved a matter of public concern. In 1999, the D.C. Circuit reversed the trial court, finding that in providing the tape to the media, McDermott did not engage in protected speech, but rather had engaged in conduct that was not protected under the First Amendment.

In 2001, the Supreme Court granted certiorari, but then remanded to the D.C. Circuit for reconsideration in light of Bartnicki v. Vopper, the 2001 case in which the Supreme Court concluded that First Amendment rights outweigh the ECPA’s privacy goals and held that the disclosure of contents of another illegally recorded cell phone conversation deserved First Amendment protection.

After sending the case back to the trial court, where an order granting summary judgment in Boehner’s favor was issued, the D.C. Circuit affirmed the judgment in an opinion issued by Judge Raymond Randolph and Chief Judge Douglas Ginsberg. The majority distinguished the case from Bartnicki on the basis that McDermott knew the source of the taped telephone call and had actual knowledge that the call was illegally intercepted, whereas the party in Bartnicki received the recorded communication anonymously and had no knowledge regarding its legality.

In his dissent, Judge David Sentelle concluded that McDermott’s knowledge is irrelevant to the First Amendment inquiry. He went on to declare the majority’s decision “fraught with danger” because it extends liability even beyond the original recipient.

McDermott requested that the entire D.C. Circuit rehear arguments. In granting this request, the Court vacated the panel decision. The case is being closely watched by media companies and organizations concerned about the potential limits the court’s ruling places on their First Amendment rights to gather and report the news.

For more information, e-mail Leo Rydzewski at leo.rydzewski@hklaw.com or call toll free, 1-888-688-8500.