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Wednesday, November 28, 2007

Cert in Boehner v. McDermott?

SCOTUSBlog reports on the cert petition in Boehner v. McDermott, which the Justices will take up in Conference on Friday. The case involves civil action under the Federal Wiretapping Statute filed by Republican Rep. John Boehner against Democratic Rep. Jim McDermott after McDermott disclosed to reporters an audio recording of a conference call involving GOP House members that had been intercepted and passed along to him by an unknown couple in Florida. The lawsuit, originally filed in 1996, has been up and down the federal system for a decade, including one prior stop in the Supreme Court, where the Court granted, vacated a decision in Boehner's favor, and remanded for reconsideration in light of Bartnicki v. Vopper.

Bartnicki had rejected a similar civil action under the wiretap statute for unlawful disclosure of a telephone conversation that had been intercepted by an unknown and unconnected third party and passed along anonymously. The Court applied the principle, frequently associated with Smith v. Daily Mail Publ'g, that government cannot punish the publication of truthful, lawfully obtained information on a matter of public concern, except to serve a governmental interest of the highest order. And protecting individual privacy is not a sufficiently important interest. The Court thus held that the wiretap statute, although content-neutral, was unconstitutional as applied to the conduct at issue, where the discloser did not know the interceptor and was not involved in the interception.

Boehner appears to be on all fours with and indistinguishable from Bartnicki. Both involve actions for statutory damages from the public disclosure by defendants of intercepted telephone conversations touching on matters of public import, where there was no connection or involvement between the disclosing defendants and those who did the actual (unlawful) interception. I never have understood how, since the remand, the district court and the D.C. Circuit have worked so hard to distinguish these identical cases. Initially, the lower courts distinguished them on the grounds that McDermott knew the identities of the interceptors, since they had signed their names when they sent the tape, while the tape in Bartnicki was send anonymously. Of course, that does not change that McDermott had not connection to them or knowledge of how they obtained the recording. In the en banc decision on which review is sought, a sharply divided en banc court held that McDermott's speech was not within Smith/Bartnicki protection because McDermott was under a special obligation, as a member of the House and the House Ethics Committee, not to disclose information such as this. The court emphasized that McDermott was disciplined by the Committee. The majority concluded that, if the First Amendment does not protect McDermott from House discipline, it does not protect him from civil suit or liability.

This is a potentially significant First Amendment case. Bartnicki is one of the great recent speech-protective and press-protective cases, expansively applying Smith to an otherwise-valid content-neutral statute, so long as the disclosing speaker was uninvolved in the original interception. This doctrine enables the press and individuals to publish, with consitutional impunity, leaked information about the (often unlawful) activities of government, about grand jury proceedings, and other information of public concern that might not otherwise be disclosed to the people. The disclosed telephone call in Boehner was a conversation among House members discussing ways to stonewall an ethics investigation of then-Speaker Newt Gingrich, certainly the sort of information we want the public to learn.

On the other side of the coin are personal privacy interests in keeping the contents of conversations private. Although intercepting phone calls is unlawful, Congress (and privacy advocates) supported the law on a "dry-up-the-market" theory. The prohibition on disclosure by even unconnected individuals is necessary to deter unlawful interception. There is no disincentive for a person with bad motives if he can pass the recording along anonymously to someone who can disclose the recording with impunity. By prohibiting downstream disclosure, Congress dries up the market for upstream interception. The Bartnicki majority rejected this as a valid approach under the First Amendment.

I believe the Court will take the case and probably will reverse. Although there is no circuit split, Boehner simply is impossible to reconcile with Court precedent. And the Court has been known to take the occasional First Amendment case simply for purposes of error correction, in this case the notion that the imposition of House discipline for some expression also pushes that expression outside the bounds of the First Amendment. Bartnicki was a 6-3 decision, with Justice O'Connor in the majority (and joining a narrowing concurrence by Justice Breyer) and Chief Justice Rehnquist writing the dissent. So this does not appear to be a situation in which change of Court membership will change the outcome.

Posted by Howard Wasserman on November 28, 2007 at 09:20 AM | Permalink

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