McDermott loses again in tape case

WASHINGTON — U.S. Rep. Jim McDermott lost another round Tuesday in his 10-year battle over disclosing the contents of an illegally taped telephone call involving House Republican leaders.

In a 5-4 opinion, the U.S. Circuit Court of Appeals for the District of Columbia ruled that McDermott, D-Seattle, should not have given reporters access to the taped call.

McDermott's offense was especially egregious since he was a senior member of the House ethics committee, the panel ruled.

When he became a member of the ethics panel, McDermott "voluntarily accepted a duty of confidentiality that covered his receipt and handling of the ... illegal recording. He therefore had no First Amendment right to disclose the tape to the media," Judge A. Raymond Randolph wrote on behalf of the court. Four judges agreed with him.

The ruling upholds a previous decision ordering McDermott to pay House Minority Leader John Boehner, R-Ohio, more than $700,000 for leaking the taped conversation. The figure includes $60,000 in damages and more than $600,000 in legal costs.

Boehner was among several GOP leaders heard on the December 1996 call, which involved ethics allegations against then-House Speaker Newt Gingrich, R-Ga. Gingrich, who was heard on the call telling Boehner and others how to react to the allegations, was later fined $300,000 and reprimanded by the House.

McDermott, who was then serving on the ethics panel, leaked the tape to The Atlanta Journal-Constitution and The New York Times, which published stories on the case in January 1997.

In written statement Tuesday, McDermott said the appeals court "sharply limited the free speech protections of the First Amendment in violation of binding Supreme Court precedent."

He said a majority on the court agreed the government can't punish the disclosure of truthful information on a matter of public importance on the grounds that someone else unlawfully acquired it.

"However, a separate majority held that those protections did not apply in this case in light of a House ethics committee rule," he said.

McDermott has 90 days to decide whether to appeal the case to the U.S. Supreme Court.

In a sharp dissent to the ruling, Judge David B. Sentelle said that under the majority's ruling, "no one in the United States could communicate on this topic of public interest because of the defect in the chain of title," that is, the fact that the tape was illegally obtained.

Boehner called the court's ruling encouraging, and noted that the court agreed with the bipartisan report of the House ethics committee in December.

Bruce Johnson, a Seattle lawyer who specializes in media law at the firm Davis Wright Tremaine, called the ruling a serious blow to the First Amendment and to the public's right to know what their officials are doing.

Lawyers for 18 news organizations — including major television networks, The Associated Press, The New York Times and The Washington Post — filed a brief backing McDermott last year.

A three-judge panel of the U.S. Circuit Court of Appeals for the District of Columbia ruled against McDermott last year. The 2-1 opinion upheld a lower-court ruling that McDermott had violated Boehner's rights.

The full nine-member appeals court later vacated the ruling and heard arguments in the case last fall and again in January.

In its January arguments, the court focused on House rules and the obligations of ethics committee members.

The House ethics panel said in a report released in December that McDermott had failed to meet his obligations as a committee leader by giving reporters access to the taped call. The House panel took no further action against McDermott beyond release of its Dec. 11 report.

The Associated Press and staff reporter Alicia Mundy contributed to this story.