Boehner v. McDermott

Decision Date24 September 1999
Docket NumberNo. 98-7156,98-7156
Citation191 F.3d 463
Parties(D.C. Cir. 1999) John A. Boehner, Appellant v. James A. McDermott, Appellee United States of America, Intervenor for Appellant
CourtU.S. Court of Appeals — District of Columbia Circuit

Appeal from the United States District Court for the District of Columbia(98cv00594)

Michael A. Carvin argued the cause for appellant. With him on the briefs was R. Ted Cruz.

Scott R. McIntosh, Attorney, U.S. Department of Justice, argued the cause for interven or United States. With him on the briefs were Frank W. Hunger, Assistant Attorney General at the time the briefs were filed, David W. Ogden, Acting Assistant Attorney General, William B. Schultz, Deputy Assistant Attorney General, and Douglas N. Letter, Litigation Counsel.

Frank Cicero, Jr., argued the cause for appellee. With him on the brief were Christopher Landau and Daryl Joseffer.

Theodore J. Boutrous, Jr., argued the cause for amici curiae The Washington Post Company, et al. With him on the brief were Seth M.M. Stodder, Mary Ann Werner, and Jane Kirtley.

Before: Ginsburg, Sentelle, and Randolph, Circuit Judges.

Opinion for the Court filed by Circuit Judge Randolph.

Opinion filed by Circuit Judge Ginsburg concurring in the judgment and in Parts I, II.B, and II.D (except the first and last paragraphs) of the opinion for the Court.

Dissenting opinion filed by Circuit Judge Sentelle.

Randolph, Circuit Judge:

"Congress shall make no law ... abridging the freedom of speech, or of the press." U.S. Const. amend. I. A federal statute prohibits private parties from intentionally intercepting wire, oral and electronic communications. The law also forbids any person from disclosing the contents of such a communication, if the person knew it was illegally intercepted. Is it part of "the freedom of speech" for an individual to give a newspaper the tape recording of a cellular telephone call he received from the criminals who conducted the illegal eavesdropping? That is the ultimate question in this appeal from the district court's dismissal of a complaint brought against the individual who transferred the tape to the New York Times and other newspapers. The district court ruled that, as applied in this case, the federal prohibition on disclosure violated the First Amendment because the defendant "legally obtained" the tape recording, and because the tape contained conversations relating to matters of "public concern." The United States has intervened to defend the constitutionality of the statute.


John A. Boehner, a Republican member of the House of Representatives, representing the Eighth District of Ohio, brought this action against James A. McDermott, a Democratic member of the House representing the Seventh District of Washington. The following events are the focus of the complaint.1

On December 21, 1996, Representative Boehner participated in a conference call with members of the Republican Party leadership, including Representatives Dick Armey and Tom DeLay, and 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--the House Ethics Committee. See In the Matter of Representative Newt Gingrich, H.R. Rep. No. 105-1 (1997); see also H.R. 31, 105th Cong. (1997) (adopting the report). Boehner was chairman of the House Republican Conference. The participants discussed strategy regarding 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.

Boehner was driving through northern 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 radio scanner to eavesdrop on the conversation. They tape recorded the call and later met with Democratic Representative Karen Thurman of Florida to discuss both the tape and the possibility of their receiving immunity for their illegal interception of the call.

At Thurman's suggestion, the Martins personally delivered the tape to Representative McDermott on January 8, 1997.McDermott was then the ranking Democratic member of the House Ethics Committee. The Martins' cover letter explained that the tape contained "a conference call heard over a scanner," and closed with this statement: "We understand that we will be granted immunity."

The next day, January 9, 1997, McDermott gave copies of the tape to the New York Times, the Atlanta JournalConstitution, and Roll Call. Because the tape revealed Gingrich engaging in conduct that might have violated the terms of the agreement, it had great news value for the three newspapers, and each ran a story on the party leaders' conversation. The New York Times published its story on the front page of its January 10, 1997 edition and included a verbatim transcript of a portion of the conversation.

After the newspaper accounts appeared, the Martins publicly confessed their role in recording the conversation and admitted giving a copy of their tape to McDermott. On January 13, 1997, McDermott provided his fellow Ethics Committee members with the Martins' tape (or a copy of it) 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) and 2511(4)(b)(ii).

Under § 2511(1)(a), anyone who "intentionally intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept, any wire, oral, or electronic communication" is guilty of an offense punishable by fine or imprisonment, or both. 18 U.S.C. §§ 2511(1)(a), 2511(4).The Martins entered guilty pleas on April 23, 1997, and were each fined $500.

One year later Boehner brought this suit against McDermott, invoking the civil liability provisions of the Electronic Communications Privacy Act. See 18 U.S.C. § 2520. His complaint charged McDermott with violating 18 U.S.C. § 2511(1)(c):

(1) Except as otherwise specifically provided in this chapter any person who --

* * *

(c) intentionally discloses, or endeavors to disclose, to any other person the contents of any wire, oral, or electronic communication, knowing or having reason to know that the information was obtained through the interception of a wire, oral, or electronic communication in violation of this subsection;

* * * shall be punished as provided in subsection (4) or shall be subject to suit as provided in subsection (5).

Claiming that McDermott had illegally disclosed the contents of the conference call, knowing it to have been illegally intercepted, Boehner sought statutory damages of $10,000 pursuant to 18 U.S.C. § 2520(c)(2)(B).2

McDermott moved to dismiss the complaint, arguing that § 2511(1)(c), as applied to him, violated the free speech clause of the First Amendment. He claimed, and the district court agreed, that the First Amendment "prohibits the punishment under any of the statutes cited in the Complaint for the disclosure of truthful and lawfully obtained information on a matter of substantial public concern." Motion to Dismiss at 1.


In mounting his First Amendment defense, McDermott obviously thinks he engaged in speech, speech for which he would suffer liability in damages if § 2511(1)(c) were applied to him. What speech? A simple question, but crucial. Too bad McDermott devotes only one sentence of his brief to the answer: "Because the disclosure of information is unquestionably speech, these provisions [of federal and state law] impose a naked prohibition on speech." Brief for Appellee at 11.But those who expose private activity to public gaze are not necessarily engaging in speech, let alone "the freedom of speech." Otherwise, one might as well say the Martins were exercising their right of free speech when they personally handed over the product of their crime to McDermott; or that they would have been engaging in free speech if they had surreptitiously dropped the tape on his doorstep, or mailed it to him anonymously in a plain wrapper. Not even McDermott goes so far. See, e.g., Oral Arg. Tr. at 41, 43.3 If the Martins were not exercising their right of free speech, as McDermott seems to concede, it is difficult to see why McDermott was exercising his freedom of speech when he gave copies of their tape to the newspapers.

At one point in his brief, McDermott asserts that "[t]his is core political speech, and lies at the very heart of the First Amendment." Brief for Appellee at 45. His assertion, however, deals with the contents of the tape. The tape does indeed contain speech about political matters. But the speech is not McDermott's and § 2511(1)(c) does not render him liable for anything anyone said on the recording. As to McDermott's speech, it is safe to assume that he said something when he arranged for delivery of the tapes to the newspapers. The New York Times in fact attributed several statements to him:4 a "Democratic Congressman hostile to Mr. Gingrich ... 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"; the Congressman "quoted them as saying it had been recorded off a radio scanner ... about 9:45 A.M. on Dec. 21." In making these remarks McDermott was undoubtedly engaging in speech. But neither these statements, nor any other statements he may have made to the newspapers in connection with his delivery of the tape, are the basis of the complaint. McDermott's liability under § 2511(1)(c) rests on the truth of two allegations: that he "caused a copy of the tape" to be given to the newspapers; and that he "did so intentionally and with knowledge and reason to know that the recorded phone conversation had been illegally intercepted (as the cover...

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7 cases
  • Bartnicki v Vopper
    • United States
    • U.S. Supreme Court
    • May 21, 2001
    ...doing, he agreed with the majority opinion in a similar case decided by the Court of Appeals for the District of Columbia, Boehner v. McDermott, 191 F.3d 463 (1999). See also Peavy v. WFAA-TV, Inc., 221 F.3d 158 (CA5 2000).5 We granted certiorari to resolve the conflict. 530 U.S. 1260 As we......
  • Boehner v. McDermott
    • United States
    • U.S. Court of Appeals — District of Columbia Circuit
    • May 1, 2007
    ...decision in this case, we held that Representative McDermott did not have a First Amendment right to disclose the tape. Boehner v. McDermott, 191 F.3d 463 (D.C.Cir.1999). The Supreme Court vacated our decision and returned the case to us for further consideration in light of Bartnicki v. Vo......
  • Boehner v. McDermott
    • United States
    • U.S. District Court — District of Columbia
    • August 20, 2004
    ...of lawfully obtained information. Boehner v. McDermott, No. CIV. 98-594, 1998 WL 436897, *7 (D.D.C. July 28, 1998), rev'd, 191 F.3d 463 (D.C.Cir.1999). The United States Court of Appeals for the District of Columbia reversed this Court by distinguishing McDermott's conduct from the controll......
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    • United States
    • U.S. Court of Appeals — Third Circuit
    • December 27, 1999
    ...indirectly in the interception, an application rarely attempted. Moreover, we do not agree that the recent decision in Boehner v. McDermott, 191 F.3d 463 (D.C. Cir. 1999), presented that court with the same issue presented here. Most particularly, in Boehner, where a divided court upheld th......
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4 books & journal articles
  • Inverting the First Amendment.
    • United States
    • University of Pennsylvania Law Review Vol. 149 No. 4, April 2001
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    ...[hereinafter Adler, What's Left?] (exposing conflicts within antipornography and anti-hate-speech theory). (21) Boehner v. McDermott, 191 F.3d 463, 470 (D.C. Cir. 1999). The issue is likely to arise this Term, when the Supreme Court will hear an appeal from a Third Circuit decision that rea......
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    • March 22, 2022
    ...Fla. Star v. B.J.F., 491 U.S. 524, 533-34, 541 (1989). (151.) Bartnicki v. Vopper, 532 U.S. 514, 528 (2001) (quoting Boehner v. McDermott, 191 F.3d 463, 484-85 (D.C. Cir. 1999) (Sentelle, J., (152.) Boehner v. McDermott, 484 F.3d 573, 583 (D.C. Cir. 2007) (en banc) (Sentelle, J., dissenting......
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