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Double Jeopardy
By Shelby Scates
Washington Law & Politics
Used with Permission

A judge's ruling could prove costly for Congressman Jim McDermott, but there's something more important at stake: the First Amendment

Once upon a time, the expression “over the transom” was used by reporters to describe news tips that led to the exposure of wrongdoing, usually by public officials. These tips were the secret keys that unlocked getting a story on Page 1—and, sometimes, criminal indictments for the officials involved.

The transom, a manually operated opening at the top of office building doorways before the invention of air conditioning, was a metaphor for the delivery of these critical tips. They actually came by voice, paper or tape recording, from sources sometimes anonymous, sometimes not.

Such tips served the public nobly. Now, in the legal wake of Ohio Congressman John Boehner’s lawsuit against Seattle’s own U.S. Rep. Jim McDermott, they must be handled with special care—if at all. As matters now stand, journalists’ First Amendment shield from lawsuits has been sorely diminished, and, along with it, the public’s right to know what’s hidden from normal scrutiny, "under the sheets."

In my 35 years of experience in American journalism, I was the recipient of at least a dozen "over-the-transom" tips, most of which led to investigations and then to Page 1. I have conveniently forgotten—if, in fact, I ever knew—their sources.

No, make that wisely forgotten their sources, given Boehner v. McDermott, a case that has yo-yoed up and down the federal judiciary from district to appeals to the U.S. Supreme Court and back down again.

The cast: Boehner is a Cincinnati Republican. Jim McDermott is a locally respected, aggressive Seattle liberal, a public figure since he entered the state Legislature in 1971.

The case: This is the first time in history a member of Congress has sued another. It smacks of a GOP vendetta against McDermott, who pushed a House Ethics Committee panel to fine former Speaker Newt Gingrich $300,000 for side-slipping House rules on proper behavior. Gingrich eventually lost the speakership

If he wins the suit, Boehner’s claim could cost McDermott $600,000 in damages, no small hit for a GOP vendetta. But—forgive my journalist’s bias—a greater injury is to First Amendment protection for the news profession.

It’s a twisted trail from the transom to this sorry state of McDermott’s finances and the public’s right to know what’s going on under pols’ sheets. Bear with this abbreviated tale of the trail.

After the House Ethics Committee fined Gingrich, the Georgia Republican held a conference call to advise House GOP leaders on how to orchestrate a media response (aka “spin”) that would downplay his penalty. Boehner, on vacation in Florida, tuned in on his cell phone.

So did John and Alice Martin, Floridians, presumably Democrats. They intercepted and taped the call on their radio scanner and passed it on to their congresswoman, who forwarded the couple and the tape to McDermott. You know, a congressional version of Tinkers to Evers to Chance—a triple play, but with one more critical pass.

McDermott gave the tape to reporters from the The New York Times and The Atlanta Journal/Constitution, where its contents made the front page. Boehner sued, claiming McDermott had violated state and federal wiretapping law. The case ensued in Washington, D.C.’s federal district court, where Judge Thomas Hogan ruled in McDermott’s favor; thence to the U.S. Court of Appeals, which reversed Hogan’s ruling; and then to the U.S. Supreme Court. The latter had just ruled 6-3 in favor of the First Amendment protections in a similar suit, Bartnicki v. Vopper.

Justice John Paul Stevens summed up both cases as conflicts of the highest order: "on the one hand, the interests of full and free dissemination of information concerning public issues . . . on the other, the interest in individual privacy and in fostering private speech."

Having ruled in favor of “full and free dissemination” in Bartnicki, the Supreme Court sent the McDermott case back to the U.S. Court of Appeals, instructing it to take another look at its decision in light of the Bartnicki ruling. Meanwhile, Boehner amended his complaint against McDermott, and the appeals court sent the revised version back to Judge Hogan.

Given the amended complaint, Hogan reversed his earlier ruling, this time deciding in favor of Boehner—cutting a legal distinction fine as a razor blade and equally dangerous for aggressive journalists, those who work from tips and documents instead of repeating the words of self-serving flacks and handouts.

Never mind Bartnicki. Hogan ruled that, since McDermott knew the source of the tape, illegally obtained by the Martins, his First Amendment protections did not apply. However, if he hadn’t known the source of the tapes, he would have been protected by the First Amendment.

And the case still isn’t resolved. McDermott has filed notice of appeal to the U.S. Court of Appeals in D.C., a matter that could take up to a year or more for final adjudication—perhaps longer if the case goes back to the Supreme Court.

Until then, some prudent advice: Journalists, beware of those hot tips dropped over your transom. The lesson coming off Boehner v. McDermott is to remain innocent of their source, or, alas, scrub the memory clean, lest you face legal action.

First Amendment protection, as we have known it for at least a century, and the reason it exists—to give citizens the right to know what’s happening to public policy under the sheets—hangs in jeopardy. L&P