Journalists as accomplices to theft?

November 1, 2006 at 7:49 am Leave a comment

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Journalists who disclose information that their sources obtained illegally could be prosecuted as accomplices to theft, according to arguments heard last month in Boehner v. McDermott before the full U.S. District Court of Appeals for the D.C. Circuit in Washington.

The case concerns free-speech rights on both sides: the right to expect private conversations to remain private vs. the right of public officials – and by implication, the media – to freely publish newsworthy matters of public concern.

“Courts are increasingly sensitive to these issues in a post-9/11 world,” said Thomas H. Dupree Jr., who filed a friend-of-the-court brief in Boehner on behalf of 18 media organizations including Dow Jones, Tribune Company and the New York Times. “This case has the potential to be very significant to the future of newsgathering.”

The controversy began with the surreptitious taping of a Dec. 21, 1996, conference call. Using a cellular telephone, U.S. Rep. John Boehner (R-Ohio) joined Newt Gingrich and other Republican strategists to prepare for the then-House Speaker Gingrich’s admission of ethics violations.

John and Alice Martin, a Florida couple unsympathetic to Gingrich, intercepted the call using a police scanner. They also taped the conversation in violation of Federal Statute 2511, commonly known as the wiretapping statute. It forbids unauthorized interception of “wire, oral or electronic communication.”

On Jan. 8, 1997, the couple gave the tape to U.S. Rep. James A. McDermott (D-Washington) who was the top Democrat on the House Ethics Committee evaluating Gingrich. Later that evening McDermott listened to the tape and called several reporters including Adam Clymer, who wrote a story which published its contents on the front page of the New York Times on Jan. 10, 1997.

Boehner sued McDermott for essentially trafficking in stolen goods – his presumed private conversation. Boehner said that when McDermott disclosed the tape to the reporter he violated 2511 (1) (c), a subsection of the wiretapping law that makes intentional disclosure of an illegally intercepted communication a crime.

Possible ramifications of the politicos’ tussle extended far beyond Capitol Hill.

If Boehner prevailed, journalists could fear prosecution for “disclosing” by publishing information they suspect has been illegally obtained by a source, even if the source did not directly participate in the unlawful interception. This could lead to a chill in reporting and self-censorship.

If McDermott won, private citizens could fear their easily intercepted electronic communications could be passed along with impunity in perpetuity.

All sides would have to wait.

For nearly a decade, Boehner v. McDermott has ping-ponged its way through the system. The federal appeals court judges heard it twice and twice found for Boehner. In the most recent 2-1 decision, issued March 28, 2006, the court ordered McDermott to pay $10,000 in fines, $50,000 in punitive damages and Boehner’s legal fees – now totaling over $500,000.

However, a 2001 Supreme Court decision in a similar “mystery tape” case, Bartnicki v. Vopper, has kept Boehner in play.

In Bartnicki, the Supreme Court decided 6-3 that a radio commentator who broadcast an anonymously supplied, illegally intercepted tape was protected under the First Amendment. Wrote Justice Paul Stevens, “Privacy concerns give way when balanced against the interest in publishing matters of public importance.”

McDermott petitioned for and won an en banc hearing – a rare procedure where all judges in an appellate court weigh in – saying that when the divided D.C. Circuit decided for Boehner, it erred by not following Bartnicki as Supreme Court precedent.

During oral arguments on Oct. 31, 2006, Christopher Landau, representing McDermott, said that even if information is illegally intercepted, there is no such thing as tainted information when it comes to truthful matters of public concern.

“Go after the thief to the hilt,” Landau told the nine judges, “but not after the First Amendment.”

Michael Carvin, representing Boehner, sought to distinguish the case from Bartnicki by focusing on the whether McDermott knew or had reason to know the tape was illegally obtained.

In Bartnicki, the Supreme Court found that the disclosers of the tape did not know its origins and lawfully obtained its contents.

“Here the information was not lawfully obtained,” Carvin said. McDermott knew the tape had been created illegally, he said, and therefore had served as a “fence” for a stolen conversation and had “aided and abetted” the Martins when he disclosed the tape to the reporter.

Judge David B. Sentelle asked, “Assuming [McDermott] told Adam Clymer it was illegally obtained, would you say the New York Times could be prosecuted [for disclosing it to its readers]?”

“The New York Times is in a position where it could be constitutionally liable,” Carvin said.

In his rebuttal, Landau said that since the 1971 Pentagon Papers case, the Supreme Court has left open the issue of whether disclosing speech could be made criminal conduct. Bartnicki didn’t decide this. And here the Martins were charged, pleaded guilty and fined $1000 for their interception; their disclosure to McDermott was not prosecuted.

“We need a bright line to protect the First Amendment or this court will be haunted by Boehner cases for years to come,” Landau said, urging the judges to define how freely speech may or may not be distributed.

The court reserved decision and will rule at a later date.

Experts monitoring the case are anxious for guidance on which First Amendment rights shall rule – for now anyway.

“There are a million privacy statutes and lots of people who want to publish information,” said Marc Rotenberg, executive director of the Electronic Privacy Resource Center (EPIC) “It’s going to keep us [activists] all employed.”

EPIC supported the late Chief Justice William Rehnquist’s dissent in Bartnicki that argued that to avoid chilling the speech of millions who use technology to communicate, the law should deter disclosure of any intercepted information. Given the available gadgetry, Rehnquist said, interception is inevitable; disclosure is not.

Jim Harper, director of information policy studies at the Cato Institute, said he takes issue with Rehnquist’s assumption and chides Boehner for not encrypting his phone in the first place. “You’re supposed to secure your own communications,” he said, likening such electronic sloppiness to building a house without doors. “If you do that, you’ll find things disappearing.”

If, as here, it’s information that disappears, Harper said he believes the capturer violating the statute should be punished. However, once the information is out and being exchanged, “You can’t stuff the genie back into the bottle, “ he said. “You can’t apply [the law] down the chain.”

Not according to a strict reading of the wiretapping statute, said Jack King, director of public affairs and communications for the National Association of Criminal Defense Lawyers. If you disclose illegally intercepted communications, you’re breaking the law, he said.

King would like to see a federal reporter shield law with a good faith exception to protect the press from Justice Department contempt charges. But he would not shield the media from civil suits.

If a journalist obtains a spellbinding scoop of questionable origin, the choice is clear, King said. Dismiss it as illegal and thereby untouchable or publish and take the risk of a civil suit, fines or worse. “Some things are worth going to jail for.”

The prospect of bailing out journalists held on Boehner-related charges was not welcomed by Lucy Dalglish, executive director of The Reporters Committee for Freedom of the Press.

Her group is already busy fielding “not-so-veiled threats” from the Justice Department seeking to use the Espionage Act against journalists. A recent target is another New York Times reporter, James Risen, who broke the story about domestic wiretapping by the National Security Agency.

“I thought Bartnicki would put an end to this one,“ Dalglish said. “But it’s the case that refuses to die.”

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