The continuing conflict between press rights and privacy rights will flare up early in the year when a federal court considers a strange and extended legal skirmish over a secretly taped 1996 phone conversation that was leaked to the press. The tape's speakers were Newt Gingrich and other prominent Republicans. The leaker was a congressman from Washington state, Jim McDermott, the top Democrat on the House Ethics Committee, which was investigating Gingrich for ethics violations. One of the Republicans, Congressman John Boehner of Ohio, is suing McDermott for violation of privacy.
Technology makes it possible not only for strangers to pry electronically into our lives, but also for corporations and government to accumulate vast stores of personal information about us. Fears about disclosing this information have made it acceptable, even routine, for government to control the flow of information about people, and about itself.
As the boundaries of privacy law expand, however, the amount of information available to the public shrinks. The 107th Congress considered at least forty privacy bills. And the Supreme Court has recognized that a constitutional right of privacy may prohibit disclosure of a private conversation, even one between public officials on a public issue. In deciding Bartnicki v. Vopper nearly two years ago, a Court majority said privacy rights and press rights deserve equal constitutional protection. Free-speech and free-press rights prevailed in that case, but just barely. When the federal district court in Washington, D.C., hears the McDermott case, privacy stands a good chance of trumping disclosure, thus eroding the public's right to know.
The facts: In December 1996, leading Republicans, including Gingrich, Boehner, Dick Armey, and Tom DeLay, among others, held a conference call. Boehner was on his cell phone while driving through Florida. The conversation focused on a proposal under which Gingrich would accept a reprimand from the ethics committee and pay a fine to avert a protracted and humiliating public hearing. The GOP leaders also discussed tactics to attack the committee's findings in a way that would protect Gingrich from suspicion that he was behind the attacks.
A Florida couple heard the conversation on a scanner, taped it, and forwarded the tape to McDermott. McDermott made copies available to The New York Times, The Atlanta Journal-Constitution, and Roll Call, all of which published stories on the conversation. McDermott resigned from the committee investigation after Republicans raised questions about the legality of his action. The Florida couple, John and Alice Martin, were prosecuted under the Electronic Communications Privacy Act and fined $1,000. Boehner later sued McDermott for damages under the act because McDermott leaked the tape, knowing it had been recorded illegally.
The coming trial is a retrial ordered by the U.S. Supreme Court. Previously, a Circuit Court of Appeals in Washington, D.C., had ruled for Boehner on grounds that McDermott's actions represented "conduct," not "speech," which would be constitutionally protected. The Supreme Court sent the case back after it decided Bartnicki v. Vopper, which concerned a secretly recorded cell-phone conversation between two Pennsylvania teachers' union representatives. The call had been aired by a local radio station. The union representatives sued the station under the Electronic Communications Privacy Act, but the High Court ruled six to three that the First Amendment protected the station from punishment.
Most legal experts agree the Bartnicki decision represents a very narrow First Amendment victory, limited to the facts in that case. And in light of the Circuit Court's decision for Boehner in round one, McDermott and the First Amendment are in for a tough fight. So is the press. Although this suit focuses on McDermott's actions, the case clearly has free-press implications: If a whistle-blower – guiltless of illegal taping and innocent of soliciting an unlawful recording – can be punished for alerting the press to information, such a precedent would have a chilling effect on the flow of information to the press.
In effect, Boehner's suit seeks to open a back door to prior restraint under the guise of protecting privacy, a popular rallying cry that's being turned on its head when used to permit public officials to suppress leaks about important issues.
