April 9, 2013

(Andrew Harrer/Bloomberg)

Mitch McConnell’s political operation today grew in the estimation of the Erik Wemple Blog, thanks to Mother Jones magazine. The lefty outlet scored a secret audio recording of a Feb. 2 strategy session by the team seeking to reelect McConnell, the Kentucky Republican who leads his party in the Senate. The recording and its transcript detail the bare-knuckled yet fair-game attacks that the McConnell operation was prepping for possible opponents, including actor Ashley Judd (who has since declared she won’t run) and Kentucky Secretary of State Alison Lundergan Grimes. As the Washington Post’s Chris Cillizza has written, there’s nothing striking here.

The issue is not the McConnell campaign, its ethics or its viability; it’s all about how this tape came about.

Who recorded it? McConnell campaign manager Jesse Benton suggests subterfuge: “We’ve always said the Left will stop at nothing to attack Sen. McConnell, but Watergate-style tactics to bug campaign headquarters is above and beyond.” CNN is reporting that the McConnell camp “is working with” the FBI on the matter.

Mother Jones, meanwhile, contends that a less-exciting process netted the recording (Disclosure: My wife works at Mother Jones):

We are still waiting for Sen. Mitch McConnell to comment on the substance of the story. Before posting this article, we contacted his Senate office and his campaign office—in particular, his campaign manager, Jesse Benton—and no one responded. As the story makes clear, we were recently provided the tape by a source who wished to remain anonymous. We were not involved in the making of the tape, but we published a story on the tape due to its obvious newsworthiness. It is our understanding that the tape was not the product of a Watergate-style bugging operation. We cannot comment beyond that.

Okay, but Benton also says this: “It wasn’t a leak,” the spokesman has said, noting that the meeting in question went down “in a very private, closed, locked conference room. These are people who have been with McConnell for years. This was like a family meeting.” Master of surreptitious taping James O’Keefe cites “manned interference” in a certain part of the recording as evidence that it wasn’t a bug.

Let’s just roll with the bug scenario. For the sake of some legal entertainment, suppose that someone, in the wee hours of Feb. 2, broke into this secure location via ductwork, expertly fiddled with ceiling tiles and planted a pea-size device in one of the room’s grommets.

So long as Mother Jones wasn’t involved in such an operation, it has nothing to fear from the law. Bartnicki v. Vopper has it covered, that is.

That’s the title of a 2001 U.S. Supreme Court case that gives U.S. media outlets a glorious set of privileges when it comes to dicey recordings. Some background: In 1992 and 1993, a union that represented teachers at the Wyoming Valley West High School in Pennsylvania was involved in some adversarial collective-bargaining discussions with the local school board. In the heat of the conflict, a couple of the union negotiators held a phone conversation. One of them said this: “If they’re not gonna move for three percent, we’re gonna have to go to their, their homes . . . . To blow off their front porches, we’ll have to do some work on some of those guys. (PAUSES). Really, uh, really and truthfully because this is, you know, this is bad news. (UNDECIPHERABLE).”

Great stuff, in other words: Everything that the Mother Jones tape doesn’t give us.

Talk radio host Frederick Vopper got his mitts on the recording and played it. As the case record notes, the front-porch-destroying stuff spread to other news outlets. Gloria Bartnicki, a union official on the call, sued for all kinds of damages, alleging that Vopper “‘knew or had reason to know’ that the recording of the private telephone conversation had been obtained by means of an illegal interception.” Perhaps, but Vopper was a passive recipient, having gotten the tape from a local taxpayer advocate; media organizations that used the recording, according to the court, “never learned the identity of the person or persons who made the interception.”

In an opinion written by Justice John Paul Stevens, the court held harmless the media that trafficked in the material:

[A] stranger’s illegal conduct does not suffice to remove the First Amendment shield from speech about a matter of public concern. The months of negotiations over the proper level of compensation for teachers at the Wyoming Valley West High School were unquestionably a matter of public concern, and respondents were clearly engaged in debate about that concern. That debate may be more mundane than the Communist rhetoric that inspired Justice Brandeis’ classic opinion in Whitney v. California, 274 U.S., at 372, but it is no less worthy of constitutional protection.

Clay Calvert, a University of Florida law professor and frequent commentator on this blog, puts the rule this way: “If the news media lawfully obtain truthful information about a matter of public significance, then the government may not constitutionally punish publication of the information, absent an interest of the highest order.”

Stevens’s opinion in the case is a fascinating tour through all the complex and sometimes antagonistic considerations involved in such situations. For example, the court was mindful that giving free rein to media organizations to publish illegally made recordings could possibly encourage eavesdropping. But it slapped away that concern. Stevens:

The normal method of deterring unlawful conduct is to impose an appropriate punishment on the person who engages in it. If the sanctions that presently attach to a violation of [the law] do not provide sufficient deterrence, perhaps those sanctions should be made more severe. But it would be quite remarkable to hold that speech by a law-abiding possessor of information can be suppressed in order to deter conduct by a non-law-abiding third party.

And, hey, what about privacy? Shouldn’t a union official be able to get on the blower and fantasize about porch destruction without ever having to worry that a surreptitious recording could end up in the public realm? Heck no, ruled the court. As long as there’s a public interest behind the illegally recorded material, there’s a Supreme Court guarantee for news outlets. The court, again:

In this case, privacy concerns give way when balanced against the interest in publishing matters of public importance. As Warren and Brandeis stated in their classic law review article: “The right of privacy does not prohibit any publication of matter which is of public or general interest.” The Right to Privacy, 4 Harv. L. Rev. 193, 214 (1890).

In the case of Mother Jones’s McConnell recording, there can be little debate about its the public-interest merit, given that it establishes that Team McConnell is running a clean and aggressive operation.

More Supreme Court stuff:

One of the costs associated with participation in public affairs is an attendant loss of privacy.

“Exposure of the self to others in varying degrees is a concomitant of life in a civilized community. The risk of this exposure is an essential incident of life in a society which places a primary value on freedom of speech and of press. ‘Freedom of discussion, if it would fulfill its historic function in this nation, must embrace all issues about which information is needed or appropriate to enable the members of society to cope with the exigencies of their period.’ ” Time, Inc. v. Hill, 385 U.S., at 388 (quoting Thornhill v. Alabama, 310 U.S. 88, 102 (1940)).

The translation of all this legalese is that the United States is an excellent place to practice journalism. Yes, reporters, you may accept clandestine recordings from law-breaking scumbags. Just don’t help them do their work.

“Blank manila envelopes are your friend,” says Jay Ward Brown, a partner with the firm Levine Sullivan Koch & Schulz, LLP, and a lawyer for the media defendants in the Bartnicki Supreme Court case.

Erik Wemple writes the Erik Wemple blog, where he reports and opines on media organizations of all sorts.