A federal appeals court yesterday reinstated a civil lawsuit filed by Rep. John A. Boehner (R-Ohio) against a Democratic House member who allegedly leaked the contents of a highly sensitive taped telephone call to the press.
The 2 to 1 ruling by the D.C. Circuit Court of Appeals rekindles Boehner's fight against Rep. Jim McDermott (D-Wash.). The appellate judges said McDermott "took part in an illegal transaction" when he obtained a tape recording made by a Florida couple who intercepted the call. If McDermott himself didn't break the law, the judges wrote, "he was at least skirting the edge."
The decision reverses a ruling by U.S. District Judge Thomas F. Hogan, who threw out the suit. The case marked a rare instance of one member of Congress suing another in his personal capacity. Boehner wants $10,000 in damages.
The tape was of a Dec. 21, 1996, conference call among GOP leaders and then-House Speaker Newt Gingrich (R-Ga.) over how to handle the fallout of the ethics sanctions against Gingrich. Boehner, vacationing in Florida, participated in the conversation using a cellular phone from his car parked in a restaurant lot.
John and Alice Martin, Democratic activists from Florida, overheard the discussion on a police scanner they kept in their car and tape-recorded it. The Martins, who gave the tape to McDermott, later pleaded guilty to illegally intercepting the call and were fined $500 each. Boehner, however, targeted his ire at McDermott, who he said leaked the contents of the tape to the New York Times and other news organizations in a blatant invasion of privacy.
Boehner declined comment on the ruling yesterday.
McDermott issued a statement saying, "We're disappointed in the result, and I'm discussing with my attorney what my options are and what I can do next."
The suit hinged upon an interpretation of the Electronic Communications Privacy Act, which bars the disclosure of illegally intercepted communications. In throwing out the case, Hogan had found that McDermott broke no laws in obtaining the tape and, therefore, could choose to release its contents. In his ruling, Hogan chastised Boehner and McDermott for political grandstanding.
The appellate court disagreed, especially taking issue with McDermott's claim that he was protected by a First Amendment right to free speech. The Washington Post, the New York Times and other news organizations filed briefs in support of McDermott's right to release the contents to the media.
Judge A. Raymond Randolph wrote that Boehner had free speech issues, including the right to speak privately. He added, "Comparing the Martins' conduct with McDermott's, one might rank the Martins as more culpable. Yet in terms of damage to the privacy of conversations and to the freedom of speech, McDermott's alleged actions had a far more devastating impact."
Randolph found that McDermott's actions were a form of conduct, not speech. The ruling made no determination about whether the news organizations could be found liable for their part, saying that issue was not before the court.
Judge Douglas H. Ginsburg joined in the opinion, and Judge David B. Sentelle issued a dissent. While saying that McDermott engaged in the "politics of personal destruction" by releasing the contents, Sentelle said that he nonetheless was protected by the First Amendment.
Staff writer Juliet Eilperin contributed to this report.