Boehner v. McDermott
| Decision Date | 28 March 2006 |
| Docket Number | No. 04-7203.,04-7203. |
| Parties | John A. BOEHNER, Appellee v. James A. McDERMOTT, Appellant. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Appeal from the United States District Court for the District of Columbia (No. 98cv00594).
Frank Cicero, Jr. argued the cause for appellant. With him on the briefs was Christopher Landau.
Theodore J. Boutrous, Jr. and Thomas H. Dupree, Jr. were on the brief of amici curiae Dow Jones & Company, Inc., et al. in support of appellant.
Michael A. Carvin argued the cause for appellee. With him on the brief was Louis K. Fisher.
Before: GINSBURG, Chief Judge, and SENTELLE and RANDOLPH, Circuit Judges.
Opinion for the court filed by Circuit Judge RANDOLPH.
After the Supreme Court vacated our decision in Boehner v. McDermott, 191 F.3d 463 (D.C.Cir.1999) (Boehner I), and returned the case to us for further consideration in light of Bartnicki v. Vopper, 532 U.S. 514, 121 S.Ct. 1753, 149 L.Ed.2d 787 (2001), see 532 U.S. 1050, 121 S.Ct. 2190, 149 L.Ed.2d 1022 (2001), we remanded the case to the district court; the parties engaged in discovery; and, on cross motions, the district court granted summary judgment in favor of Representative John A. Boehner, awarding him $10,000 in statutory damages, see 18 U.S.C. § 2520(c)(2), $50,000 in punitive damages, and reasonable attorney fees and costs. The issue on appeal is whether undisputed facts prove that Representative James A. McDermott "unlawfully" obtained the tape recording of an illegally-intercepted conversation in which Representative Boehner participated. See Bartnicki, 532 U.S. at 532 n. 19, 121 S.Ct. 1753.
Plaintiff John A. Boehner represents Ohio's Eighth District; defendant James A. McDermott represents Washington's Seventh District. The complaint alleged that Representative McDermott violated 18 U.S.C. § 2511(1)(c) when he disclosed an illegally-intercepted conversation in which Representative Boehner participated. The record developed in discovery showed the following.
On December 21, 1996, Representative Boehner participated in a conference call with members of the Republican Party leadership, including then-Speaker of the House Newt Gingrich. At the time of the conversation Gingrich was the subject of an investigation by the House Committee on Standards of Official Conduct, commonly known as the House Ethics Committee. Representative Boehner was chairman of the House Republican Conference. The participants discussed various strategies regarding how to deal with an expected Ethics Subcommittee announcement of Gingrich's agreement to accept a reprimand and to pay a fine in exchange for the Committee's promise not to hold a hearing.
Representative Boehner was driving through Florida when he joined the conference call. He spoke from a cellular telephone in his car. John and Alice Martin, who lived in Florida, used a police radio scanner to eavesdrop on the conversation, in violation of 18 U.S.C. § 2511(1)(a). They recorded the call and delivered a tape of the conversation in a sealed envelope to the Florida office of then-Representative Karen Thurman. The tape was forwarded to Thurman's Washington office. Thurman's chief of staff learned from her, on January 8, 1997, that the Martins would be visiting her office in Washington. Both Thurman and her chief of staff sought legal advice about accepting the tape. At some point they consulted then-Representative David Bonior's chief of staff and legislative director. Stan Brand, former General Counsel to the House of Representatives, advised that the tape should not be accepted under any circumstances and that it should be turned over to the Ethics Committee or other appropriate authorities. When the Martins arrived at Thurman's office, her chief of staff returned the tape in its unopened envelope and suggested that they turn it over to the Ethics Committee.
At about 5 p.m. on January 8, 1997, in a small anteroom adjacent to the Ethics Committee hearing room, the Martins delivered the tape to Representative McDermott in a sealed 8-1/2" by 11" envelope. At the time, Representative McDermott was the ranking Democrat on the Ethics Committee. A conversation between the Martins and Representative McDermott ensued, of which more hereafter. With the envelope the Martins also delivered a business card and a typed letter, dated January 8, 1997, and addressed to "Committee on Standards of Official Conduct. . . Jim McDermott, Ranking Member." The letter stated:
Enclosed in the envelope you will find a tape of a conversation heard December 21, 1996 at about 9:45 a.m. The call was a conference call heard over a scanner. We felt the information included were of importance to the committee. We live in the 5th. Congressional District and attempted to give the tape to Congresswoman Karen Thurman. We were advised by her to turn the tape directly over to you. We also understand that we will be granted immunity.
My husband and I work for Columbia County Schools in Columbia County Florida. We pray that committee will consider our sincerity in placing it in your hands.
We will return to our home today.
Thank you for your consideration.
Representative McDermott then returned to the Ethics Committee hearing room.
Later that evening, during a recess, Representative McDermott left the Ethics Committee hearing room and went to his office. There he opened the Martins' envelope, dumped out the contents, and listened to the tape. Still later, he called two reporters: Jeanne Cummings of the Atlanta Journal-Constitution, for whom he left a message, and Adam Clymer of the New York Times, whom he reached. Clymer went to Representative McDermott's office, listened to the tape, and made a recording of it. After Cummings returned Representative McDermott's call the next day, he invited her to his office and shared the tape with her.
On January 10, 1997, Clymer published a front-page article in the New York Times entitled "Gingrich Is Heard Urging Tactics in Ethics Case." The article, which included lengthy excerpts of the taped conversation, reported the circumstances leading to disclosure of the tape:
The call was taped by people in Florida who were unsympathetic to Mr. Gingrich and who said they heard it on a police scanner that happened to pick up the cellular telephone transmission of one of the participants. It was given to a Democratic Congressman, who made the tape available to the New York Times. . . . .
. . . .
Mr. Gingrich, Mr. Bethune and the others discussed their tactics in a conference call, a transcript of which was made available by a Democratic Congressman hostile to Mr. Gingrich who insisted that he not be identified further.
The Congressman said the tape had been given to him on Wednesday by a couple who said they were from northern Florida. He quoted them as saying it had been recorded off a radio scanner, suggesting that one participant was using a cellular telephone. They said it was recorded about 9:45 A.M. on Dec. 21.
Adam Clymer, Gingrich Is Heard Urging Tactics in Ethics Case, N.Y. TIMES, Jan. 10, 1997, at A1, A20. The Atlanta Journal-Constitution ran a similar story on January 11th.
On January 13, 1997, the Martins held a press conference and identified Representative McDermott as the Congressman to whom they delivered the tape. Representative McDermott then sent copies of the tape to the offices of the House Ethics Committee and resigned from the Committee. The Committee Chairman, Representative Nancy Johnson, forwarded the tape to the Justice Department. The government prosecuted the Martins for violating 18 U.S.C. § 2511(1)(a), the provision forbidding unauthorized interception of "wire, oral, or electronic communication." The Martins pled guilty and were fined $500.
On cross-motions for summary judgment the district court held that Representative McDermott violated 18 U.S.C. § 2511(1)(c) when he disclosed the tape to the reporters. Boehner v. McDermott, 332 F.Supp.2d 149, 158 (D.D.C.2004) (Boehner II). Section 2511(1)(c) makes intentional disclosure of any illegally-intercepted conversation a criminal offense if the person disclosing the communication knew or had "reason to know" that it was so acquired. The Bartnicki Court held that under the First Amendment, § 2511(1)(c) was invalid as applied to individuals who lawfully obtained a tape of such a conversation and then disclosed it, 532 U.S. at 535, 121 S.Ct. 17531; the Court added that its holding did not apply to those who obtain the information unlawfully, id. at 532 n. 19, 121 S.Ct. 1753. The district court therefore viewed the crucial issue to be whether Representative McDermott lawfully obtained the tape from the Martins. See Boehner II, 332 F.Supp.2d at 163-64. The court held that there was no genuine issue of material fact that the Martins' letter to Representative McDermott was on the outside of the envelope containing the tape and that he must have read it. Id. at 166-67, 169. This established Representative McDermott's knowledge of the Martins' illegal interception at the time he received the tape. It followed that he had not lawfully obtained the tape. Id. at 165-66, 169.
According to Representative McDermott, the district court misinterpreted Bartnicki. As he reads the Supreme Court's opinion, any individual who did not participate in the illegal interception of a conversation has a First Amendment right to disclose it.
It is true that in Bartnicki the defendants had no connection to the illegal interception. The tape of the conversation wound up in Yocum's mailbox, placed there by some unknown person. 532 U.S. at 519, 525, 121 S.Ct. 1753. Neither Yocum nor the radio broadcaster who played the tape on his program after Yocum gave it to him knew who had done the intercepting. The Court mentioned the anonymity of the interceptor several...
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Boehner v. McDermott
...judge dissenting, affirmed on the ground that Representative McDermott had not lawfully obtained the tape recording. Boehner v. McDermott, 441 F.3d 1010 (D.C.Cir.2006). We vacated that decision and ordered the case reheard en banc. Boehner v. McDermott, No. 04-7203 (D.C.Cir. June 23, 2006) ......