The U.S. Court of Appeals for the D.C. Circuit may have narrowed the issues in a complex First Amendment case to whether a Democratic congressman had a “special duty” not to disclose the contents of an illegally recorded phone conversation.

Rep. James McDermott (D-Wash.) was the ranking Democrat on the House Ethics Committee when a Florida couple gave him the tape of a conversation among Republican congressmen which they had intercepted with a police scanner. After he gave a copy to The New York Times, one of the Republicans, John Boehner of Ohio, sued him for violating a federal wiretap law.

A three-judge panel of the appeals court ruled by a 2-1 majority in March that McDermott's disclosure was not protected under the First Amendment because he received the tape knowing it had been intercepted illegally. The court granted rehearing en banc and heard argument Oct. 31.

But that, apparently, wasn't enough for the nine judges to make up their minds. In a highly unusual Dec. 5 order, they scheduled more argument for Jan. 25 and invited briefing

limited to the issue whether United States v. Aguilar, 515 U.S. 593 (1995), limits First Amendment protection of McDermott’s disclosure.

The U.S. Supreme Court case involved a federal judge accused of illegally disclosing a wiretap. In the plurality opinion, Chief Justice William H. Rehnquist noted that the judge was not “simply a member of the general public who happened to lawfully acquire possession of information about the wiretap” and

Government officials in sensitive confidential positions may have special duties of nondisclosure.

The D.C. Circuit's panel opinion in Boehner v. McDermott contains no discussion of that precedent, but Boehner's attorney has argued that McDermott's conduct was especially egregious because, as an ethics committee member, he was sworn to confidentiality.

The en banc court's interest in Aguilar suggests the judges are willing at least to grant First Amendment protection to those who receive illegally obtained information as long as they are not in “sensitive confidential positions.”

That wouldn't do much for McDermott, who has a trial judge's $60,000 damages award looming over him. But it would certainly be good news for the media, which has weighed in heavily on the defendant's side, and would accommodate the concerns of Judge David B. Sentelle, the dissenter to the panel majority, who saw

no distinction ... between the constitutionality of regulating communication of the contents of the tape by McDermott or by The Washington Post or The New York Times or any other media resource.

By Matthew Heller
12/8/06