WASHINGTON-A federal judge has ruled that a congressman who gave a tape of an illegally scanned cellular phone call to reporters lost his First Amendment right to free speech and now must pay another congressman damages. U.S. District Judge Thomas Hogan ruled Aug. 20 that Rep. Jim McDermott (D-Wash.), former ranking member of the House Ethics Committee, lost his First Amendment protections when he “participated in an illegal transaction when he accepted the tape.”
Hogan will rule Sept. 16 how much McDermott must pay Rep. John Boehner (R-Ohio).
Boehner sued McDermott in 1998 because McDermott released a tape of a conference call in which Boehner participated using an analog cellular phone. Boehner sued McDermott after the New York Times on the front page of its Jan. 13, 1997, edition published the contents of a conference call regarding the ethics situation of former House Speaker Newt Gingrich (R-Ga.).
John and Alice Martin, Democratic Party activists, intercepted the conference call using a police scanner. The Martins gave the tape to McDermott.
The circumstances surrounding the conference call would be nearly impossible now since most cellular systems use digital technology that is, at present, impossible to tape from the air.
Hogan originally threw out the case claiming the First Amendment protected McDermott. The U.S. Court of Appeals for the District of Columbia Circuit reversed that decision in the first go-around. The Supreme Court combined the case with another case known as the Bartnicki case and after ruling in Bartnicki, sent it back to the D.C. Circuit for further proceedings. This differs from the situation in Bartnicki where a tape was left in a mailbox, and no one knows who intercepted the call.
The D.C. Circuit Dec. 21, 2001, in an unsigned order reversed, vacated and sent the case back to Hogan.
