The U.S. Court of Appeals for the District of Columbia issued its en banc decision in Boehner v. McDermott, the long-running litigation between Republican Congressman John Boehner and Democratic Congressman James McDermott over whether McDermott violated federal law when he gave to the press a tape recording of an illegally intercepted cell phone conversation in which Representative Boehner participated. In a divided opinion, the D.C. Circuit affirmed the lower court's judgment in favor of Boehner.
The line-up of today's decision is quite interesting. The court effectively split 4-1-4. Judge Randolph wrote the majority opinion, holding that McDermott's disclosure of the tape was not protected by the First Amendment and vioalted House Ethics rules. He was joined by Chief Judge Ginsburg and Judges Henderson and Brown. Judge Sentelle wrote the dissent, arguing that McDermott's disclosure of the tape was fully protected by the First Amendment. His dissent was joined in full by Judges Garland, Rogers, and Tatel. Judge Griffith split the difference, joining the first part of Sentelle's dissent, but ultimately joining the majority. As Griffith explained:
Although I agree that Representative McDermott’s actions were not protected by the First Amendment and for that reason join Judge Randolph’s opinion, I write separately to explain that I would have found the disclosure of the tape recording protected by the First Amendment under Bartnicki v. Vopper, 532 U.S. 514 (2001), had it not also been a violation of House Ethics Committee Rule 9, which imposed on Representative McDermott a duty not to “disclose any evidence relating to an investigation to any person or organization outside the Committee unless authorized by the Committee.” Although the Court does not and need not reach the Bartnicki issue to resolve the matter before us, two previous panels in this case have held that the congressman’s actions were not protected by the First Amendment. I believe it is worth noting that a majority of the members of the Court—those who join Part I of Judge Sentelle’s dissent—would have found his actions protected by the First Amendment. Nonetheless, because Representative McDermott cannot here wield the First Amendment shield that he voluntarily relinquished as a member of the Ethics Committee, I join Judge Randolph’s opinion in concluding that his disclosure of the tape recording was not protected by the First Amendment.Is this the last we have heard of this case? I would suspect so. Although this is a fascinating case that presents some interesting questions, I doubt the Supreme Court would accept a petition for cert (although that prediction is worth even less than you paid for it).
(1) If the prediction is less than what we paid for it.
(2) And, we paid nothing for the prediction.
(3) Then, the prediction is worth less than nothing.
(4) And the prediction actually has a negative value.
(5) But the only way a prediction could have a negative value is if it were less than 50% likely to be true.
(6) Thus, the prediction is less than 50% likely to be true.
(7) Then, the opposite of prediction must be more than 50% likely to be true.
(8) The opposite of the prediction is that the Supreme Court will hear the case.
(9) Thus, in Adler's view, the Supreme Court will probably hear the case.
Is it possible the case was argued initially before Kavanaugh joined the court? The original argument appears to have been in October 2006, which seems from my memory to be about when Kavanaugh took the bench.
Which leak, the one made to McDermott or the one McDermott made to the media? You aren't arguing that the recorders of the conversation had a constitutionally protected right to leak the tape, are you? (I don't think you are. I'm just unsure.)
With regard to McDermott, it appears he was given the tape because he was a member of the House ethics committee. At least, that's a reasonable inference. If he received the tape because of his position on the committee, it would seem reasonable to hold that the committee's rules apply to his use of the tape.
That's a sick joke, right?
Putting terrorists under stress and waterboarding is torture, according to the Media Lords, but illegally taping private phone calls and printing them to embarrass your political opponents is an importatn media right and "hurts the media's ability to gather information on important public issues."
Yeah, sure.
Yes, many people do indeed think suffocating alleged (or even actual) terrorists is worse than illegally taping phone calls between congressmen. I for one would hate to see it otherwise.