Posted by Juan Non-Volokh: <i>Bohener v. McDermott</i> Redux: In 1996, Representative Jim McDermott obtained a tape of an illegally intercepted cellphone call between Representative John Boehner, then-Speaker Newt Gingrich, and other members of the House Republican leadership. McDermott turned the tape over to the New York Times, which published a story on the tape's contents, and Rep. Boehner sued. The district court initially dismissed the case on First Amendment grounds, the U.S. Court of Appeals for the D.C. Circuit reversed, and then the Supreme Courtvacated the D.C Circuit's opinion and remanded the case in light of another case holding the relevant statute unconstitutional on First Amendment grounds. Now, back at the district court, Rep. Boehner [1]appears to have won the case (for the time being). In [2]this opinion released yesterday, Judge Hogan distinguishes the relevant Supreme Court holding and holds for Rep. Boehner. According to Judge Hogan, "because Defendant McDermott participated in an illegal transaction when he accepted the tape from the Martins, he is without First Amendment protection and Plaintiff Boehner is therefore entitled to judgment as a matter of law." A [3]subsequent hearing will determine the extent of the damages. AS one might expect, [4]the New York Times is not happy. "Judge Hogan's decision may be extremely harmful," commendted one of the paper's attorneys, "since it goes well beyond past cases to hold that a totally passive recipient of information, who did not solicit or pay for it, can be held liable. Under this new rule, much of the information reporters acquire every day, from the Pentagon Papers on down, would become legally suspect." The case will certainly be appealed, and the key issue will be whether the distinction drawn by Judge Hogan holds.
References 1. http://www.nytimes.com/2004/08/24/national/24tape.html 2. http://www.dcd.uscourts.gov/98-0594-082004-2.pdf 3. http://www.dcd.uscourts.gov/98-0594-082004-1.pdf 4. http://www.nytimes.com/2004/08/24/national/24tape.html _______________________________________________ Volokh mailing list [EMAIL PROTECTED] http://highsorcery.com/cgi-bin/mailman/listinfo/volokh
