The following column, featuring a selected petition up for consideration at the Justices' private conference on November 30, appears in today's edition of Legal Times (available to subscribers here). To see the full list of "petitions to watch" for Friday's conference, click here.

Conference Call: GOP Spying Case Heads to Supreme Court

Justices asked to decide whether nearly $1 million in civil penalties against House Democrat should stand

In 1998, Rep. John Boehner (R-Ohio) filed what is believed to be the first lawsuit against a fellow member of Congress. The target was Rep. Jim McDermott (D-Wash.), who during the previous year had shared with reporters a tape of an embarrassing phone call involving Republican Party leaders originally recorded by a Florida couple using a police scanner from RadioShack.

While the making of the recording violated federal law, McDermott, who had merely received a copy of the conversation, has consistently maintained that the First Amendment protected his right to pass its contents along. Now, more than a decade after the original conference phone call – and more than six years after the Supreme Court remanded the case in light of another decision – the justices will decide on Nov. 30 whether to settle the matter once and for all. (The petition is No. 07-439, McDermott v. Boehner.)

The call in question occurred in 1996, just hours before then-House Speaker Newt Gingrich admitted wrongdoing in a House ethics subcommittee probe. In lieu of embarrassing hearings, members agreed to accept Gingrich’s mea culpa on the condition that Gingrich not launch a counterattack against the committee itself. On a December morning in Florida, however, John and Alice Martin overheard a conference call involving Boehner, who was talking on a nearby cell phone; Gingrich; and other Republican leaders orchestrating the GOP’s response to the charges.

Recognizing Gingrich’s voice, the couple recorded the conversation and, less than three weeks later, arrived in Washington to give it to McDermott, then the highest-ranking Democrat on the House Ethics Committee. Presented in a sealed envelope, the tape came with an attached letter stating that the call was “heard over a scanner” and indicating the couple’s belief that they would be granted immunity for turning it over. After listening to the tape, McDermott played it for reporters from The New York Times and Atlanta Journal-Constitution, while insisting they not name him in their stories.

Shortly thereafter, the Florida couple publicly acknowledged giving the tape to McDermott and paid a $500 fine for illegally recording the conversation. The following year, Boehner sued McDermott under the federal wiretapping statute for disclosing an illegally intercepted communication.

In the first round of proceedings, Chief Judge Thomas Hogan of the U.S. District Court for the District of Columbia dismissed the suit on First Amendment grounds. A divided panel of the U.S. Court of Appeals for the D.C. Circuit reversed. The Supreme Court granted the case, vacated the judgment, and remanded the decision in light of its 2001 opinion in Bartnicki v. Vopper, in which the Court – by a vote of 6-3 – held that radio commentators could not be prosecuted for their role in playing an illegally recorded tape they had received from an anonymous source.

On remand, Hogan ruled that because McDermott was aware the tape had been illegally intercepted, Bartnicki did not shield him from liability. The court imposed $60,000 in damages, plus attorney fees now estimated at nearly $900,000. A divided D.C. Circuit panel affirmed the judgment, as did the court last May, sitting en banc.

In a 5-4 opinion written by Judge A. Raymond Randolph, the majority reasoned that Bartnicki did not grant blanket First Amendment protection to disclose any information of public importance that a person had lawfully obtained – citing, among other examples, speech limits on grand jurors, intelligence officials, and Internal Revenue Service employees. Relying instead on the Court’s 1995 decision in United States v. Aguilar, the panel held that officials who accept “positions of trust” inherit special duties not to disclose information acquired while performing their responsibilities.

In McDermott’s case, Randolph noted that the House Ethics Committee itself had admonished him for violating a committee rule against disclosing evidence involving individuals under investigation. “If the First Amendment does not protect Representative McDermott from House disciplinary proceedings,” Randolph concluded, “it is hard to see why it should protect him from liability in this civil suit.”

McDermott’s petition for certiorari – filed by Christopher Landau of Kirkland & Ellis in Washington – contends that any sanction leveled by the House is wholly irrelevant to McDermott’s liability under the federal wiretapping statute. On the First Amendment question, the petition says, the D.C. Circuit opinion so blatantly disregarded Bartnicki as to threaten “the hierarchy of the federal court system.”

Landau further argues that the D.C. Circuit violated separation-of-powers principles by linking the Ethics Committee’s report to McDermott’s First Amendment claim. “The courts are not in the business of enforcing internal House rules, either directly or indirectly, or attaching adverse collateral consequences to internal legislative activity,” the petition says.

In any event, Landau contends, McDermott had no knowledge of the Florida couple or the tape before they handed it to him, and he could not recall whether he read the accompanying letter stating how they had recorded the conversation.

Boehner’s brief in opposition, filed by Michael Carvin of the D.C. office of Jones Day, counters that McDermott was unquestionably aware the conversation had been recorded illegally – as evidenced by the subsequent New York Times account stating that the couple told McDermott they heard the call over a radio scanner.

Carvin further contends that it makes “perfect sense” for public officials in sensitive positions to enjoy fewer First Amendment protections over the disclosure of illegally intercepted information. Such officials, he argued, “voluntarily relinquished any "right’ to disclose information that comes to them in the course of their job.” – Ben Winograd

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