D.C. Circuit to Again Rehear Congressman’s Leaked Cell Phone Call Case
January 2, 2007
Leo Rydzewski - Washington
In a rare procedural move, the U.S. Court of Appeals for the District of
Columbia Circuit has ordered a second rehearing en banc to review the
decision of a divided panel of the court in a dispute between two congressmen
over the leak of an illegally intercepted cell phone call. The case was brought
by Congressman John A. Boehner, a Republican from Ohio. On December 21, 1996,
Representative Boehner, while driving in Florida, participated in a cell phone
call with fellow Republican leaders in which they discussed how to address
ethics charges pending before then-Speaker of the U.S. House of Representatives,
Newt Gingrich. A Florida couple driving by picked up the call inside their car,
taped it, and provided the tape to their congresswoman, who furnished it to
Democratic Congressman James A. McDermott of Washington. McDermott provided the
tape to three newspapers and each ran a news story reporting the tape’s
contents.
The trial court in Rep. Boehner’s lawsuit last year ruled that Rep. McDermott
violated the federal Electronic Communications Privacy Act (ECPA) when he
provided the tape to the media. The ECPA prohibits private parties from
intercepting wire, oral and electronic communications, as well as disclosing the
contents of such communications if the person knows that it was illegally
intercepted. A panel of the D.C. Circuit, in a 2-1 ruling last year, upheld the
trial court’s decision. In a separate proceeding, the House Committee on
Standards of Official Conduct concluded that Rep. McDermott violated House
ethics standards by giving reporters access to the illegally taped cell phone
call because he had risked undermining the ethics process regarding Gingrich.
The original October 2006 en banc rehearing by the entire D.C. Circuit
centered on whether McDermott’s knowledge that the intercepted call was illegal
deprived the Democrat of First Amendment protection for disseminating the
communication. In its order setting a second rehearing, the court has asked the
parties to brief whether Rep. McDermott had an obligation, under the 1995
Supreme Court decision United States v. Aguilar, not to forward the
illegal communication. In Aguilar, the Supreme Court held that a federal
judge had an obligation not to disclose information concerning a secret wiretap,
even after the conclusion of the government’s surveillance.
This is the second time that Boehner v. McDermott has been to the D.C.
Circuit. After the trial court originally held in 1998 that Rep. McDermott had
a constitutional right to give the tapes to the media, the D.C. Circuit
reversed, finding that McDermott’s act was unprotected conduct, not First
Amendment protected speech. The U.S. Supreme Court granted review, but then in
2001 remanded the case to the D.C. Circuit, without issuing a ruling, to
reconsider the case in light of another decision in which the Supreme Court held
that a Pennsylvania radio-show host had not violated the ECPA when he broadcast
an illegally taped cell phone conversation involving a matter of public concern
that he received anonymously.
In the ruling that the entire D.C. Circuit is rehearing for the second time,
a panel of the D.C. Circuit – over a strong dissent – held that McDermott was
liable because he knew who intercepted the telephone call and had actual
knowledge that the tape recording was illegally intercepted. In his dissent,
Judge David Sentelle concluded that McDermott’s knowledge was irrelevant to the
First Amendment inquiry. Judge Sentelle concluded that the panel decision was
“fraught with danger” because it extends liability beyond the original
recipient. The second en banc rehearing, which the court scheduled for January
25, 2007, is highly unusual and suggests that the court may be exploring ways to
decide the case on grounds other than the First Amendment.
For more information, e-mail Leo G. Rydzewski at
leo.rydzewski@hklaw.com or call
toll free, 1-888-688-8500.
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