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First Amendment on Trial
Wall Street Journal - August 19, 2006
By Teodore J. Boutrous, Jr.

While the subpoenas and contempt orders that came out of the Valerie Plame leak investigation sent a shiver through journalists and other champions of a free press, an equally chilling lawsuit between two congressmen slowly plodded through the courts, barely noticed. No longer. Now, the D.C. Circuit has made a ruling in this dispute that, if it stands, will blow a hole through the First Amendment.

The strange case of Boehner v. McDermott began with a conference call between GOP leaders in December 1996, to decide how to deal with the ethics charges against then-Speaker Newt Gingrich. Rep. (now House Majority Leader) John Boehner participated by cell phone.

A Florida couple intercepted the call on a police scanner and taped it, in violation of federal wiretapping laws. They gave a copy of the tape to Jim McDermott, a Democratic member of the House ethics committee, who gave it to the press, which widely reported on it. Mr. Boehner sued, claiming that Mr. McDermott had invaded his right to privacy and violated federal wiretapping laws.

A few years later, as Mr. Boehner's lawsuit progressed, the Supreme Court decided in Bartnicki v. Vopper that it would violate "the core purposes of the First Amendment" to use the wiretapping statute to punish defendants who had "lawfully" obtained and broadcast a tape of a telephone call that had been illegally recorded by someone else. Such punishment, it said, would impose "sanctions on the publication of truthful information of public concern."

Nevertheless, in March of this year a panel of the D.C. Circuit upheld a $60,000 judgment for statutory and punitive damages against Mr. McDermott. (Mr. Boehner is now claiming an additional $500,000 in attorney's fees.) Since Mr. McDermott supposedly knew that the tape had been illegally recorded when he received it, the court ruled that he got it "unlawfully" and could be punished, like someone who "is guilty of receiving stolen property."

Judge David Sentelle dissented, emphasizing the rule's potentially sweeping ramifications: "No one in the United States could communicate on this topic of public interest" because -- just like Mr. McDermott -- everyone, including the journalists who wrote about the tape and "every reader of the information in the newspapers," knew that it had been illegally recorded.

The full en banc D.C. Circuit has now agreed to rehear the case, and it is imperative that the court reject the panel's ruling. While Mr. Boehner claimed that his right to privacy trumped Mr. McDermott's First Amendment rights, the Supreme Court in Bartnicki declared: "Privacy concerns give way when balanced against the interest in publishing matters of public importance. . . . The risk of this exposure is an essential incident of life in a society which places a primary value on freedom of speech and of press."

The high court has made clear over and over again -- usually in cases involving the press -- that, absent the most extraordinary and compelling circumstances, as long as a citizen breaks no law in obtaining truthful information of public concern, he cannot be punished for publishing it, even if he knew that his source broke the law. A "receipt of stolen property" exception would overturn this important First Amendment doctrine, threatening the ability of the press to obtain and disseminate news.

As a matter of history, tradition and ordinary newsgathering, the press sometimes obtains vital, highly newsworthy information from sources who may have broken the law, or some legal duty while providing it. Indeed, many of the most significant news stories have been based on information that the source may have acquired or communicated illegally, including the Pentagon Papers case, Watergate, the Monica Lewinsky scandal, stories about the health hazards of tobacco and, more recently, articles about CIA secret prisons in Europe and the NSA surveillance program.

Nevertheless, under Boehner, a reporter who obtains important information could be subjected to punishment, simply because he knew or suspected that the source had broken the law in giving it to him. Such a doctrine would severely hamper traditional newsgathering and reporting activities, and it would inject significant uncertainty into the reporting process.

Unless overturned, Boehner v. McDermott will embolden the government and private citizens to be even more aggressive in taking legal actions that aim to punish and deter truthful speech. This is already happening: The Department of Justice has cited Boehner as "especially instructive" in justifying its prosecution of two former lobbyists of the American Israel Public Affairs Committee for receiving and then discussing with reporters national defense information, in alleged violation of the Espionage Act. Those same prosecutors, as well as Attorney General Alberto Gonzales, have refused to rule out the possibility that the government could launch similar criminal charges against journalists who receive and publish classified information.

It can be extremely tempting to scale back on traditional First Amendment freedoms in the area of national security during war time. The government does have the right to protect information in the name of national security and other compelling interests, and to impose secrecy obligations on government officials to avoid harmful disclosures. But the First Amendment, as a check on government power and an instrument of self-government, tasks the press with ferreting out information that the government wants to keep secret.

That information, after all, really belongs to the people, who have delegated the power to govern to elected officials. Sometimes the only way the public can learn about government wrongdoing, or questionable government policies, is through leaks. The late Yale law professor Alexander Bickel famously called this built-in constitutional tension the "unruly contest" between the press and the government. Boehner v. McDermott would stack the deck in this contest between government secrecy and free speech. It should be rejected. The interests at stake involve all Americans -- not just two feuding congressmen.

Mr. Boutrous has filed a friend-of-the court brief in the Boehner case for 18 news organizations, including Dow Jones, publisher of this newspaper.

Used with premission - Copyright 2006 Dow Jones & Company, Inc. All Rights Reserved