Home > Legislative Issues

Bad Precedent
WNYC - National Public Radio - September 1, 2006

Listen to story

When the subject is government encroachments on free speech, much of the discussion centers on the AIPAC case. Two former employees of the American Israel Public Affairs Committee are being prosecuted for receiving classified information and passing it on to a reporter. That private citizens could be so prosecuted sent shivers through news organizations who fear criminal exposure in simplicity being in receipt of government secrets, whether properly secret or not. But writing in The Wall Street Journal last month, lawyer Ted Boutrous, Jr. says another case may be even more ominous. It's a lesser-known one called Boehner versus McDermott, and it's based on a decade-old conference call among Republican members of Congress.

Ted Boutrous: It's a strange case. It dates back to 1996. There was a conference call among House Republican leaders about ethics charges that were being leveled against then-Speaker Newt Gingrich. And Congressman Boehner, who's now the majority leader of the House of Representatives, patched into the call by cell phone. And an enterprising Florida couple happened to have a police scanner on, and they taped the phone call, and thought that it was interesting, and they gave it to Jim McDermott, a Democratic member of Congress, and he then, Congressman McDermott, gave it to the media. He gave it The New York Times and The Atlanta Constitution. They published stories about the conference call and the strategies that were being undertaken by the Republicans.

Bob Garfield: And then John Boehner, the Congressional Republican, sued his colleague, Jim McDermott, on the basis of leaking stolen property, in essence, correct?

Boutrous: Exactly. And the D.C. Circuit has upheld that 50,000-dollar punishment and penalty against Representative McDermott. The rationale of the D.C. Circuit's decision is that because Representative McDermott knew or suspected that the tape had been made illegally, in violation of federal wiretapping laws, he, in essence, had received stolen property and he could be punished for disseminating it. And that rationale, as Judge Sentelle, who dissented from the decision said, could be applied to news organizations if it's taken to its logical conclusion. And the theory would be that if a reporter knows that someone has leaked classified information or other types of information in violation of the law to the reporter, and the reporter then publishes the information, the reporter has received stolen property and then could also be punished. And that would have a terrible effect on the dissemination of really important information to the public.

Garfield: Now, the United States Supreme Court, back in May of 2001, already ruled on a very similar case. That case is known as Bartnicki. And they said, in effect, that the public interest in the particular case trumped whatever other crime may have been committed.

Boutrous: And the Bartnicki decision was also a federal wiretapping case where a phone call had been illegally taped by someone who then gave the tape to a radio station. The Supreme Court held that even though there were privacy rights implicated, where truthful information of public concern is disseminated, the person who disseminated it, as long as they themselves did not violate the law, cannot be punished. And that is really a very important First Amendment principle that the court has applied in numerous cases involving journalists. The Bartnicki decision, we think, demands that the decision be overturned in the Boehner case, but the Boehner court recognized this new exception, what they called the receipt of stolen property exception.

Garfield: In fact, by definition, all leaked material is stolen property. The absolute quintessential example is the Pentagon Papers. It seems like the Boehner case is on a collision course with Bartnicki, should it ever get to the Supreme Court. What reasons could there be for the Supreme Court to break from its own precedent to rule in favor of Congressman Boehner?

Boutrous: Since 9/11, we're in a time of war, there really have been, I think, threats all around to traditional First Amendment rights, and I think having these issues come up now in this atmosphere makes everyone nervous. The D.C. Circuit has agreed to rehear this case, what's called En Banc – the full court will review the panel's decision. And I'm hopeful that they will nip this in the bud before it even has to go the Supreme Court.

Garfield: It's rather chilling to see that the Department of Justice has called the Boehner case, quote, "especially instructive" in justifying its prosecution of those AIPAC lobbyists. I guess we can all assume that if Attorney General Alberto Gonzales has his way, any journalist who ever receives leaked information can get thrown in the slammer.

Boutrous: The attorney general a couple of months ago said he wasn't ruling out using the Espionage Act, which is the statute in the AIPAC case, to go after journalists. There have been rumblings and calls for journalists to be prosecuted for publishing very important stories – the NSA surveillance story, the CIA prisons in Europe story – those important issues that involve government policies that the public really should know about and be able to debate. And when the Justice Department cited the Boehner case in the AIPAC matter, it seemed to me that really signaled that this could become a battleground. It's always been the courts that have had to stand up at the end of the day and protect free speech and free press rights, but I am very worried. I really do think it's an extremely dangerous decision, and one of the most dangerous to come along in quite some time.

Garfield: Thank you very much.

Boutrous: Thank you.

Garfield: Theodore Boutrous is a lawyer for Gibson, Dunn and Crutcher. His piece on this project ran in the August 19th Wall Street Journal.

Used with premission - copyright © 2006 WNYC Radio