Appeals Court rules against McDermott in taped-call case

WASHINGTON — U.S. Rep. Jim McDermott had no right to disclose the contents of an illegally taped telephone call involving House Republican leaders a decade ago, a federal appeals court ruled Tuesday.

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 telephone 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 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 a written statement issued today, McDermott said the court "sharply limited the free speech protections of the First Amendment in violation of binding Supreme Court precedent."

He said he and his lawyers haven't decided whether to appeal to the U.S. Supreme Court. They have 90 days to appeal.

In a sharp dissent of today's 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.

"We do not believe the First Amendment permits this interdiction of public information," Sentelle wrote on behalf of himself and three other judges.

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

"As I've said many times: When you break the law in pursuit of a political opponent, you've gone too far," Boehner said in a statement. "Members of Congress have a responsibility not only to obey the laws of our country and the rules of our institution, but also to defend the integrity of those laws and rules when they are violated."

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.

"Our whole system of public scrutiny is based on partisans from one side ratting out partisans from the other side," Johnson said. "But this ruling gives a big cudgel to who ever is in power to shut off information and cut off scrutiny of the government."

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. They said a ruling against him could chill the media's ability to gather information on important public issues.

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.

Seattle Times staff reporter Alicia Mundy contributed to this story.