Boehner, John A. v. McDermott, James A.
2007 WL 1246438, 376 U.S. App. D.C. 75, 484 F.3d 573 (2007)
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Rule of Law:
The First Amendment does not protect an individual from liability for disclosing an illegally intercepted communication if that individual holds a position of trust that imposes a duty of confidentiality regarding the information disclosed.
Facts:
- On December 21, 1996, Representative John Boehner participated in a conference call with Republican leadership, including Speaker Newt Gingrich, using a cellular telephone.
- John and Alice Martin, residents of Florida, used a police radio scanner to illegally intercept and record the conference call.
- The Martins first delivered a tape of the recording in a sealed envelope to the office of Representative Karen Thurman.
- After consulting legal counsel who advised against accepting the tape, Thurman's staff returned the unopened envelope to the Martins.
- On January 8, 1997, the Martins delivered the sealed envelope, along with a letter explaining the tape's origin, to Representative James McDermott, who was the ranking Democrat on the House Ethics Committee.
- Later that evening, McDermott listened to the tape and subsequently provided it to reporters from The New York Times and The Atlanta Journal-Constitution.
- On January 10, 1997, The New York Times published a front-page article detailing the contents of the illegally recorded conversation, citing an anonymous Democratic congressman as the source.
Procedural Posture:
- John Boehner sued James McDermott in the U.S. District Court for the District of Columbia for violating federal wiretapping laws.
- A panel of the D.C. Circuit Court of Appeals initially held that McDermott's disclosure was not protected by the First Amendment.
- The U.S. Supreme Court granted certiorari, vacated the D.C. Circuit's judgment, and remanded the case for further consideration in light of its decision in Bartnicki v. Vopper.
- On remand, the district court granted summary judgment in favor of Boehner, holding that McDermott had not lawfully obtained the tape.
- McDermott, as appellant, appealed to the D.C. Circuit, where Boehner was the appellee.
- A divided three-judge panel of the D.C. Circuit affirmed the district court's decision.
- The D.C. Circuit then voted to vacate the panel decision and rehear the case en banc.
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Issue:
Does the First Amendment protect a member of the House Ethics Committee from liability under 18 U.S.C. § 2511(1)(c) for disclosing an illegally intercepted communication to the media, when House and Committee rules impose a duty of confidentiality on him?
Opinions:
Majority - Randolph
No. The First Amendment does not shield Representative McDermott from liability because his position on the House Ethics Committee imposed a special duty of confidentiality. The court assumed, for the sake of argument, that McDermott lawfully obtained the tape, but distinguished this case from Bartnicki v. Vopper. Citing United States v. Aguilar, the court reasoned that government officials in sensitive, confidential positions have special duties of nondisclosure that can limit their First Amendment rights. McDermott, as a member of the Ethics Committee, was subject to Committee Rule 9 and House Rule 23, which created a duty not to disclose evidence relating to an investigation. By voluntarily accepting this position of trust, he relinquished any First Amendment right to disclose the tape in violation of that duty. The court accepted the Ethics Committee's own report, which found McDermott's conduct inconsistent with the spirit of its rules, as a definitive interpretation that eliminated any ambiguity.
Dissenting - Sentelle
Yes. The First Amendment protects Representative McDermott's disclosure under the controlling precedent of Bartnicki v. Vopper. The dissent argues that Bartnicki established a clear rule: the government cannot punish the publication of lawfully obtained, truthful information of public concern, even if the original source obtained it illegally. McDermott lawfully received the information and did not participate in the illegal interception. The majority's reliance on House Ethics rules is a non sequitur; while the House might be able to discipline McDermott for a rule violation, that internal rule does not strip him of his First Amendment defense against liability under a separate federal statute. Furthermore, the dissent argues that the committee rule is ambiguous, and under United States v. Rostenkowski, courts should not interpret ambiguous congressional rules. Abrogating a constitutional right based on a violation of the 'spirit' of a rule is impermissibly vague.
Concurring - Griffith
No. Representative McDermott's actions were not protected by the First Amendment, but only because his disclosure violated his duty of confidentiality under House Ethics Committee Rule 9. The author writes separately to state that, absent this specific duty, McDermott's disclosure would have been protected speech under Bartnicki v. Vopper. He notes that a majority of the en banc court (the dissenters plus himself) agrees with the dissent's interpretation of Bartnicki. However, because McDermott voluntarily relinquished his First Amendment shield by accepting a position on the Ethics Committee, the majority's ultimate judgment is correct.
Analysis:
This decision establishes a significant 'position of trust' exception to the First Amendment protections articulated in Bartnicki v. Vopper. While Bartnicki broadly protected the publication of illegally obtained information by those not involved in the interception, this case narrows that protection for individuals with pre-existing duties of confidentiality, such as government officials or employees bound by internal ethics rules. The ruling suggests that such duties can override First Amendment defenses against generally applicable laws, like the federal wiretap statute. This precedent impacts future cases involving leaks by government employees, lawyers, and others in positions of trust, making it harder for them to claim First Amendment protection for disclosing newsworthy but confidential information.
