D.C. Circuit Rules Against Representative McDermott in Cell Phone Case, But Upholds First Amendment Principle
May 15, 2007
Leo Rydzewski - Washington
A sharply divided U.S. Court of Appeals for the District of Columbia Circuit has ruled that Representative Jim McDermott, a Democrat from Washington, D.C., may be held liable for damages for leaking an illegally intercepted cell phone call. The court held that Representative McDermott had a First Amendment right to disclose the information, but that he voluntarily relinquished that First Amendment “shield” from liability by virtue of his membership in the House Ethics Committee, which by rule prohibits disclosures like these.
The case was brought by Representative John A. Boehner, a Republican from Ohio who, while driving in Florida on December 21, 1996, 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 Representative McDermott. Representative McDermott subsequently provided the tape to three newspapers, and each ran a news story reporting the tape’s contents.
The trial court ruled that Representative 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, upheld the trial court’s decision without addressing a House Ethics Committee rule that would have prohibited Representative McDermott from releasing the information. The panel held that Representative McDermott was liable because he knew who intercepted the telephone call and had actual knowledge that the tape recording was illegally intercepted. In a strong dissent, Judge David Sentelle concluded that Representative McDermott’s knowledge was irrelevant to the First Amendment inquiry. Judge David Sentelle concluded that the panel decision was “fraught with danger” because it extends liability beyond the original recipient.
The full District of Columbia Court of Appeals, in its May 1, 2007, decision, ruled in a 5-4 en banc vote to uphold the trial court’s decision on the alternative grounds that the House ethics rules were violated. But one of the five judges in that majority then sided with the four dissenters, in an opinion again authored by Judge Sentelle that held the otherwise-lawful receipt of unlawfully obtained information remains in itself lawful, even when the receiver knows or has reason to know that the source obtained the information unlawfully. Therefore, a majority of the members of the court would have found Representative McDermott immune from suit under the First Amendment.
The five-judge majority concluded that the House Ethics Committee rules, which prohibited Committee members from disclosing “any evidence relating to an investigation to any person or organization outside the Committee unless authorized by the Committee,” trumped Representative McDermott’s First Amendment rights. According to the court, when Representative McDermott joined the House Ethics Committee, “he voluntarily accepted a duty of confidentiality that covered his receipt and handling of the []illegal recording” and thus “had no First Amendment right to disclose the tape to the media.” Therefore, the court concluded, given the ongoing proceedings before the Ethics Committee and Representative McDermott’s position as a member of the Committee, Representative McDermott had a duty not to disclose the information that he lawfully acquired while performing his responsibilities, and thus could not rely upon a First Amendment right to disclose that information to the media.
In his vigorous dissent, Judge Sentelle concluded that the First Amendment protections should be available to Representative McDermott because the House Ethics Committee rules do not create a private right of action upon which Representative Boehner may rely. According to Judge Sentelle, it does not follow that McDermott’s violation of a House Ethics Committee rule deprives him of a First Amendment defense to every other nondisclosure law, including the ECPA, which Judge Sentelle found “unrelated” to the “special duty of nondisclosure” that McDermott may have had as a member of Congress.
The net effect of the decision is that Representative Boehner prevails on his claim that McDermott violated Boehner’s rights in leaking the tape, but that previous precedent about the First Amendment right to communicate information a person lawfully obtains remains intact.
For more information, e-mail Leo G. Rydzewski at leo.rydzewski@hklaw.com or call toll free, 1-888-688-8500.