A divided DC Circuit Court today upheld a lower court judgment for GOP Majority Leader
John Boehner (R-OH) in his
perpetual legal battle with Rep.
Jim McDermott (D-WA).
In a case with vast implications for freedom of speech, press, blogs and whistleblowers of every description, three conservative Republican members of the "Little Supreme Court" split 2-1.
With failed SCOTUS nominee Judge Ginsburg concurring, Judge Randolph crafts a narrowly-reasoned, hair-splitting "fine print" opinion that labors to ensnare McDermott without utterly perforating the First Amendment.
In response, Judge Sentelle (yes, that Judge Sentelle) authors a BOOMING dissent (excerpts below the fold).
Core question: Can journalists, bloggers or anyone else repeat or republish information that originally became available via some breach of legal duty?
This decision catches Jim literally up in the air ... I'll update this post with context and developments through the day.
The case stems from Rep. McDermott's action in blowing the whistle on a GOP plot to circumvent agreements between Newt Gingrich and the House Ethics Committee. Rep. Boehner took part in a leadership conference call, a tape of which found its way into Jim's hands and from there to the New York Times front page.
See Jim's firsthand dKos account, The Fall of the House of Ethics.
This case will cost the loser at least $1,000,000. Your help is needed. Please making at least a token contribution (append the $.01) to signal netroots support for this progressive champion, and sign up for our e-mail newsletter to get the facts and updates as the case progresses. (Jim's monthly newsletter is also one of the best-ever collections of under-reported progressive issues).
Here's the concluding paragraph of Sentelle's dissent:
The Supreme Court having decided the very issue of this case, that is, whether the United States (or Florida) can constitutionally bar the publication of information originally obtained by unlawful interception but otherwise lawfully received by the communicator, my opinion on whether that decision is correct or incorrect matters little. Nonetheless, I will venture to say that an opposite rule would be fraught with danger. Just as Representative McDermott knew that the information had been unlawfully intercepted, so did the newspapers to whom he passed the information. I see no distinction, nor has Representative Boehner suggested one, 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. For that matter, every reader of the information in the newspapers also learned that it had been obtained by unlawful intercept. Under the rule proposed by Representative Boehner, no one in the United States could communicate on this topic of public interest because of the defect in the chain of title. I do not believe the First Amendment permits this interdiction of public information either at the stage of the newspaper-reading public, of the newspaper-publishing communicators, or at the stage of Representative McDermott’s disclosure to the news media. Lest someone draw a distinction between the First Amendment rights of the press and the First Amendment speech rights of nonprofessional communicators, I would note that one of the communicators in Bartnicki was himself a news commentator, and the Supreme Court placed no reliance on that fact.
UPDATE: The following
statement appears on Rep. McDermott's House website, also echoing Judge Sentelle's dissent:
There is no greater responsibility for a Member of Congress than to defend the Constitution, and I fully accept my duty to protect the First Amendment, which is what this case is all about. That's why 18 major U.S. media companies from across the country joined together and filed a brief in strong support of my position.
The American people have a right to know when their government's leaders are plotting to deceive them, and that is exactly what was happening during a telephone call in 1996 involving Republican House leaders, including then Speaker of the House Newt Gingrich and Rep. John Boehner.
Despite prior court decisions, including the U.S. Supreme Court, upholding my position, the Circuit Court of Appeals for the District of Columbia issued a split 2-1 decision today against my position, with a strong dissenting opinion by Judge Sentelle:
I see no distinction, nor has Representative Boehner suggested one, 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. For that matter, every reader of the information in the newspapers also learned that it had been obtained by unlawful intercept. Under the rule proposed by Representative Boehner, no one in the United States could communicate on this topic of public interest because of the defect in the chain of title. I do not believe the First Amendment permits this interdiction of public information either at the stage of the newspaper-reading public, of the newspaper-publishing communicators, or at the stage of Representative McDermott's disclosure to the news media.
We respect the court, but respectfully disagree with two judges. We believe that Judge Sentelle's strong opinion in support of the First Amendment and my position rightly defends freedom of the press and free speech in America.
Our legal counsel is studying the decision, and we will decide on a course of action in the days ahead.