Ban Snooping, Not Speech

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Saturday, April 8, 2006

THE U.S. COURT of Appeals for the D.C. Circuit issued a troubling opinion last week in a case involving two prominent Republican leaders in the House of Representatives -- one who preceded and one who came after Tom DeLay. The case involves the illegal interception of a cellphone call featuring then-House Speaker Newt Gingrich by a Florida couple in 1996 and the disclosure of its contents to the New York Times by Rep. Jim McDermott (D-Wash.), to whom they gave a tape. One of the participants in the call was the man who recently became House majority leader, Rep. John A. Boehner (R-Ohio). He sued Mr. McDermott under a law that forbids unauthorized recording of telephone communications or the disclosure of such recordings. The case has been kicking around for years, but the D.C. Circuit by a divided vote recently handed Mr. Boehner a big and dangerous win.

We have no brief for Mr. McDermott's conduct in this matter. A member of the House ethics committee at the time, he received what was clearly an illegally obtained recording and used it for political advantage. Still, he did not play any role in intercepting the call, and there's no law against receiving information from an illegal interception. So the case poses the question of when the law can forbid the transmission of newsworthy information by someone who played no role in the underlying offense.

The Supreme Court has addressed this question before, in a 2001 case similar to the Boehner-McDermott fight. In that case, the court wrote that "a stranger's illegal conduct does not suffice to remove the First Amendment shield from speech about a matter of public concern." Yet the D.C. Circuit contends that this case is different because Mr. McDermott knew the tape had been made illegally -- whereas in the high court's case, the person who passed it along had received it anonymously. "It is the difference," explains Judge A. Raymond Randolph, "between someone who discovers a bag containing a diamond ring on the sidewalk and someone who accepts the same bag from a thief, knowing the ring inside to have been

stolen."

Yet, as Judge David B. Sentelle argued in a compelling dissent, this distinction is far less clear than it may seem. For one thing, the tape in the Supreme Court's case quite clearly had been illegally recorded as well. What's more, Judge Sentelle rightly points out that under the majority's reading, the newspapers that published the story were just as legally culpable as Mr. McDermott: "For that matter, every reader of the information in the newspapers also learned that it had been obtained by unlawful intercept," so any of these readers would violate the same law if they "communicate[d] on this topic of public interest because of the defect in the chain of title." (Numerous press organizations, including The Post, jointly submitted a friend-of-the-court brief on Mr. McDermott's side of the argument.)

This ruling can't be right; the full court ought to intervene.


© 2006 The Washington Post Company

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