Is it any surprise that the right wing US Supreme Court has refused to hear an appeal of Congressman Jim McDermott’s First Amendment case? Congressman McDermott case seems simple enough and the Supreme Court actually ruled on a similar case previously. But for a US Supreme Court that had seen fit, among other things, to appoint George Bush President; ignoring first amendment rights of a liberal Seattle Democratic Congressman is just small potatoes.
Congressman McDermott’s sin was that he released a cell phone conversation between Rep John Boehner, Newt Gingrich and other Republican leaders. Eli Sanders has a good account of the circumstances in an excellent in depth story he wrote last year for the Stranger entitled, “The War on Jim McDermott”.
“The Republican legal crusade against McDermott has its roots in a 1996 ethics charge that bedeviled former Republican House Speaker Newt Gingrich. At the time, McDermott was the ranking Democrat on the House ethics committee and Gingrich, the mastermind of the 1994 “Republican Revolution,” which gave Republicans control of Congress for the first time in 40 years, was facing complaints over his use of a college course for political purposes. To settle the complaint, Gingrich agreed to pay a $300,000 fine and promised not to publicly minimize, or “spin,” the charge against him.
“That was the genesis of this phone call,” McDermott says, referring to a conference call that Gingrich held in secret with Republican leaders shortly after the settlement. “Essentially, he was encouraging them to figure out how to spin it,” McDermott says—a direct violation of his agreement with the ethics committee….
Gingrich’s secret conference call involved several members of the Republican House leadership, and as it happened, one of those leaders, Boehner, the congressman from Ohio, was driving through Florida at the very moment his colleagues needed him to be on the phone. So Boehner pulled into the parking lot of a Waffle House and joined the conference call on his cell. The date was December 21, 1996.
Not far away, a Florida couple, John and Alice Martin, were messing around with their police radio scanner and happened to pick up the call as the Republicans were talking about how to spin Gingrich’s ethics charge. Being Democrats who followed politics, they realized whom they were hearing and decided to make a tape for posterity. Then, realizing what they had heard, they decided to tell their congresswoman, Karen L. Thurman. She, in turn, encouraged them to give the tape to McDermott because of his position on the ethics committee .
What the Martins had done—recording a private cell-phone conversation and distributing it to others—was illegal. (Indeed, they were later prosecuted by the Justice Department, pleaded guilty to intercepting private electronic communications, and paid a $500 fine.) But the Martins’ illegal behavior had produced information that was of public importance: a recording of congressmen plotting to get around an agreement with the House ethics committee. To get it out to the public, they turned to their representatives in Congress, and in that sense, this was not all that different a scenario than the common one in which a whistleblower, in violation of the law, makes a copy of a secret government or corporate record and then provides that record to another person, often a journalist, who has the power to make sure the document is widely read.
“I felt people ought to know right now,” McDermott says, explaining why he did what he did next, which was leak the tape to the New York Times and the Atlanta Journal-Constitution.
The story of the tape, which hit the front page of the New York Times on January 10, 1997, proved to be a political sensation, and when it came out that McDermott was behind the leak, Republicans reacted with fury. McDermott, however, believed he had a First Amendment right to leak the contents of the tape, just like the journalists who wrote about it had a right to quote from it; none of them, after all, had participated in the illegal behavior that led to the creation of the tape in the first place. …. Boehner decided, in March of 1998, to file a civil suit against McDermott seeking $10,000 in damages for the disclosure of his private phone call.
It was the first time one congressman had sued another in civil court, and it marked the beginning of a draining legal fight that has gone up and down the federal court system for the last eight years, costing each side well over half a million dollars.
There is more to the story of course. Sanders noted that many members of the news media sided with McDermott regarding the first amendment issues. Sanders goes on to cite a similar case the Supreme Court decided.
“…the Supreme Court’s ruling in a similar 2001 case that, just like McDermott’s, involved a damning audiotape that had been made by illegally intercepting a cell-phone conversation. That tape was passed on anonymously to a Pennsylvania radio station, which then broadcast the recording. In its ruling, a majority of the Supreme Court sided with the radio station, writing: “It would be quite remarkable to hold that speech by a law-abiding possessor of information can be suppressed in order to deter conduct by a non-law-abiding third party.”
The PI headline reads “McDermott loses appeal, and must pay lawmaker“ I think this is the wrong headline. A more accurate one would be someting like “Jim McDermott Denied Hearing before Supreme Court because he Belongs to the Wrong Political Party” or ” Supreme Court Sides with Appeals Court Against First Amendment Rights” or Supreme Court Supports Secrecy over Public’s Right to Know”
You can read more about the case and McDermott’s legal arguments by going to “The Jim McDermott Legal Expense Trust” There is also a link here that will allow you to make a contribution to help pay McDermott’s legal fees incurred in his First Amendment defense.