Media Law Advisory

May 31, 2007

Congressman Liable for Disclosure of Intercepted Cellular Call Involving Matter of Public Concern

In 1999, the D.C. Circuit Court of Appeals held that Representative James A. McDermott (WA - 7th) did not have a First Amendment right to disclose an illegally intercepted tape recording even though he took no part in the illegal act. In 2001, the United States Supreme Court vacated that decision and required the lower court to reconsider the case in light of its 2001 ruling in Bartnicki v. Vopper, 532 U.S. 514 (2001), which held that that defendants were entitled summary judgment because even though they disclosed an illegally intercepted phone call, they did not actually intercept the call.

Despite the Bartnicki decision, upon reconsideration the D.C. Circuit Court of Appeals still held that McDermott is liable for intentionally disclosing an illegally intercepted cellular phone call, even though he took no part in recording or the plan to record the call. Boehner v. McDermott, 2007 U.S. App. Lexis 10001 (D.C. Cir. May 1, 2007). The majority again rejected McDermott's argument that the First Amendment protected his right to share the tape with the public. Judge Sentelle drafted a strong dissent, which three other judges joined in full and another judge joined in part. Judge Griffith drafted a concurring opinion that limits the extent of the majority's holding.

Factual Background

In December 1996, Representative John A. Boehner (OH - 8th) and other Republican Party leadership participated in a conference call with then-Speaker of the House Newt Gingrich. The call concerned a House Ethics Committee investigation into Gingrich and how they might deal with an expected announcement that Gingrich would agree to a reprimand and pay fine in exchange for the Committee's promise not to hold a hearing about the investigation.

Florida residents, John and Alice Martin, intercepted this call and recorded it. The Martins originally sent it with a letter in a sealed envelope to then-Representative Karen Thurman (FL - 5th). Thurman never opened the package. She met with the Martins and suggested that they turn it over to the House Ethics Committee. The Martins delivered the package to McDermott, who was the ranking Democrat on the Ethics Committee at that time.

Before bringing the package and recording to the Ethics Committee's attention, McDermott contacted reporters at the New York Times and the Atlanta Journal-Constitution. One reporter made a copy of the recording. Both papers ran stories about the contents of the tape, citing the source as a "Democratic Congressman." McDermott did not provide copies of the recording to the Ethics Committee until after the Martins gave a press conference where they identified McDermott as the person to whom they gave the tape.

Boehner sued McDermott for civil liability under 18 USC § 2511(c), which "makes intentional disclosure of any illegally intercepted conversation a criminal offense if the person disclosing the communication knew or had 'reason to know' that it was so acquired."

The D.C. Circuit Court of Appeals admitted that "[t]he contents of the tape had substantial news value." Nonetheless, it found that McDermott did not have a First Amendment right to disclose the tape.

Legal Analysis

The majority and dissent differed on how to analyze this case. The majority analogized the case to United States v. Aguilar. In Aguilar, the United States Supreme Court held that a federal judge did not have a First Amendment right to disclose information about an investigative wiretap that he learned about from the judge who authorized it. The majority stated that "Aguilar stands for the principle that those who accept positions of trust involving a duty not to disclose information that they lawfully acquire while performing their responsibilities have no First Amendment right to disclose that information." It found that McDermott violated this principle because he violated a House Ethics Committee Rule prohibiting the disclosure of "evidence relating to an investigation to any person or organization outside the Committee unless authorized by the Committee." Thus, the court essentially bootstrapped McDermott's violation of the Ethics Committee Rules into a loss of First Amendment rights, even though it conceded that the contents of the recording involved matters of public interest.

The dissent explained its disagreement with the majority's reliance on Aguilar. "It does not follow that Representative McDermott's violation of a House Committee rule deprives him of a First Amendment defense to every other nondisclosure law, including section §2511(1)(c) - which in this case is unrelated to whatever 'special duty of non-disclosure' McDermott may have had as a member of Congress."

Instead, the dissent analogized the case to Bartnicki v. Vopper. It stated that both cases involved a recipient of an illegally intercepted communication of public interest, who disclosed that information, but did not participate in the illegal act - a scenario that requires a balance between privacy rights from being illegally recorded and First Amendment rights involving "publication of truthful information of public concern." Thus, reasoned the dissent, like defendants in Bartnicki, McDermott should be protected by the First Amendment because he disclosed matters of public interest and did not participate in the illegal act.

Also, the dissent rejected the rationale that punishing people who disclose information illegally obtained by another is a deterrent. Citing Bartnicki, the court stated that there is no basis to assume that imposing sanctions on the people disclosing communications illegally taped by another will deter the other from continuing to illegally intercept.

Not only did Boehner contain a vigorous dissent in support of First Amendment rights, Judge Griffith wrote a concurring opinion that limits the majority opinion to the unique facts of the case. Specifically, Judge Griffith expressly made clear that he "would have found the disclosure of the tape recording protected by the First Amendment under Bartnicki had it not also been a violation of House Ethics Committee Rule 9" which imposed a duty of non-disclosure on McDermott.

Thus, Boehner does not stand for the proposition that a person who discloses an illegally intercepted call (but did not take part in the illegal act) is always liable under 18 USC § 2511(1)(c). Boehner hinged on McDermott's "special duty" of non-disclosure under the House Ethics Committees rules.

Massachusetts Supreme Judicial Court Affirms Defamation Claims Against the Boston Herald and Reporter

The Massachusetts Supreme Court unanimously affirmed the $2.01 million damages awarded in a defamation and libel case against Boston Herald, Inc. and its reporter, David Wedge. Murphy v. Boston Herald, Inc., et al; Case No. SJC - 09782. In June 2002, Judge Ernest B. Murphy filed a complaint against the Boston Herald and Mr. Wedge claiming that various statements that Mr. Wedge included in two articles that the Boston Herald published were "false, that they had damaged his reputation and caused other injuries, and that they had been published with actual malice." Mr. Wedge had written two articles that attacked Judge Murphy for his "bias toward defendants, and his open hostility to victims and prosecutors." Mr. Wedge also appeared on "The O'Reilly Factor" and made more allegedly defamatory statements. Although there were a total of nineteen statements that Judge Murphy claimed were defamatory, the court placed the statements into five categories:

1. Plaintiff stated about a young rape victim, "She can't go through life as a victim. She's [fourteen]. She got raped. Tell her to get over it."
2. "The exchange occurred in [the plaintiff's] New Bedford Superior Court chambers last week when prosecutors confronted [him] over his lenient sentencing practices."
3. The plaintiff "heartlessly demeaned victims."
4. "The victim [in the rape case] took the stand and tearfully told the judge how the rape has affected her."
5. "[The plaintiff] said this - he made this comment to three lawyers. He knows he said it, and everybody else that knows this judge knows that he said it."

After a twenty-one day trial, the jury agreed with Judge Murphy. The jury found that all the statements were defamatory, that the statements damaged Judge Murphy's reputation and held him up in public disgrace, and that the defendants published the statements with actual knowledge that they were false or, at the very least, published them with a high degree of awareness that they were false. The jury awarded Judge Murphy compensatory damages of $2.9 million, which the trial court ultimately reduced to $2.01 million.

The defendants appealed on the following bases: (1) the statements were not published with "actual malice" and were actually true; (2) the plaintiff could not recover damages for libel of other reporters who repeated the statements unless he proved actual malice as to each reporter; (3) measure of damages and factors considered when determining damages were erroneous; and (4) the court should vacate the Order because the two letters that Judge Murphy sent to the Boston Herald publisher after the verdict created the appearance of impropriety.

First, the court held that the evidence supported a finding that the statements were defamatory and false. The court found that Mr. Wedge consistently contradicted his trial testimony and his deposition testimony, admitted that portions of the statements were fabrications, and that the only other testimony supporting defendants' claims was diminished because of apparent bias.

Second, the court held that the plaintiff did not have to establish that the reporters who repeated Mr. Wedge's defamatory statements did so with actual malice. The court held that "an original publisher of defamatory material is liable for subsequent republication where 'the repetition was authorized or intended by the original defamer, or the repetition was reasonably to be expected.'" On this basis, the court held that the evidence clearly established that it was reasonable to expect that the statements would likely be repeated.

Third, the court affirmed the measure of and amount of damages awarded to Judge Murphy, holding that the following were properly considered by the jury to determine the amount of damages awarded to the plaintiff: the amount and severity of hate mail Judge Murphy received after the defendants published each article, testimony from his wife and daughters regarding the emotional impact the statements had on Judge Murphy, evidence of the emotional trauma plaintiff's daughter suffered due to her concern over her family's safety, Mr. Wedge's lack of conformity with journalistic standards of checking sources, and the statements Mr. Wedge made on "The O'Reilly Factor." Thus, the court affirmed the $2.01 million in damages awarded to Judge Murphy.

Finally, the court found that the letters that Judge Murphy sent to the Boston Herald publisher did not give the appearance of impropriety on the proceedings in the case because Judge Murphy sent the letters after the decision and damages were awarded. Thus, the letters had no bearing or negative impact on the case.

Although the court affirmed the decision that the Boston Herald and Mr. Wedge had defamed Judge Murphy, the court agreed that holding up the freedom of the press is very important to our society. However, the court stated that the "press, however, is not free to publish false information about anyone." Because the court determined that the evidence in this case clearly and convincingly established that the statements the defendants made about Judge Murphy were false, the court affirmed the jury's decision that the statements were defamatory and libelous and upheld a monetary award of $2.01 million to Judge Murphy.

Roommate.com not Immune from Fair Housing Act Suit

The Ninth Circuit Court of Appeals held that Roommate.com lost its immunity from being liable for content on its website because it (1) provided a questionnaire to its customers; and (2) and provided the ability to search for possible roommates by selecting certain preferences before running a search for compatible roommates. Fair Housing Council v. Roommate.com, 2007 U.S. App. LEXIS 11350 (9th Cir. May 15, 2007). This decision is important because it goes against the general trend of courts giving robust protection under § 230(c) of the Communications Decency Act (CDA), the immunity section.

The CDA provides immunity to "interactive computer services." An "interactive computer service" is any information service that enables multiple users to access a computer server. For example, Roommate.com is an interactive computer service because it allows multiple people to access its website and search for roommates. The purpose of providing immunity to interactive computer services is to protect them from being liable based on the speech or content that others post on their system.

The immunity, however, is lost if the interactive computer service becomes a content provider, in addition to facilitating the service. A content provider is any person or business that "is responsible, in whole or in part, for the creation or development of information provided through the Internet."

Fair Housing Council in California sued Roommate.com because it required customers to complete a questionnaire that solicited information about their sex, age, and whether children lived in the household. It also claimed that Roommate.com became a content provider by designing the website so that customers could search for particular types of roommates by selecting preferences before running the search. For example, customers could search for only females, people without children, or people of a certain age, among other descriptions.

Roommate.com claimed immunity under §230 of the CDA. It argued that the customers provided the information and that it merely facilitated the communication, but did not create any content. The Ninth Circuit rejected this argument.

The Ninth Circuit held that both the creation of the questionnaire, as well as providing customers the ability to search the website by their personal preferences, turned Roommate.com into a "content provider" because it was "responsible, in whole or in part" for creating the content. After holding that Roommate.com lost its immunity, the Ninth Circuit remanded the case to the district court to determine if its actions violated the Fair Housing Act and possibly other state law claims.

Judge Ikuta concurred in part and disserted in part, based on the issue of whether Roomate.com actually created content by structuring the search function. But Judge Ikuta disagreed that the design of the search function made Roommate.com a content provider. In support of her position, she cited Blumenthal v. Drudge (992 F. Supp. 44 (D.D.C. 1998)), where the court held that AOL remained immune from liability even though it had contracted with and promoted the activities of a gossip columnist. In Blumenthal, the court stated that AOL would not lose its immunity unless it "had some role in writing or editing the material." Judge Ikuta argued that the same analysis should be applied to Roommate.com with regard to the design of the search function and that this position is consistent with the broad immunity that § 230 of the CDA is intended to provide.

Based on this decision, interactive computer service providers cannot be certain that they will retain their immunity from suit once they "create" any type of content such as a questionnaire or even design the searchability of their service.

Porn on Public School Teacher's Computer is Public Record

The Wisconsin Supreme Court recently ruled that 1,500 pornographic images found on a public school teacher's work computer are public records and should be made public under the state open records law. RobertZellner v.CedarburgSchool District(May 15, 2007), Supreme Court of Wisconsin Case No. 2006AP1143-AC.

The high school science teacher, Robert Zellner, was terminated after allegedly viewing numerous images from adult websites on his work computer. As part of the investigation, the school district's attorney prepared a memo containing a summary of prurient Google searches allegedly performed by Zellner and a compact disc containing numerous pornographic images found on his computer.

The Milwaukee Journal Sentinel requested access to the memo and CD pursuant to Wisconsin's public records law. In response, Zellner filed an action seeking to enjoin the release of the images. The state court denied Zellner's request for an injunction and the case was eventually appealed to the Wisconsin Supreme Court.

A key issue in the case was whether the images were "public records" for purposes of the Wisconsin open records statute. Zellner argued that the images were not "public records" because they either fell under a statutory exception for copyrighted images or an exception for documents that were part of an ongoing investigation. The Wisconsin Supreme Court rejected these arguments, finding that the production of the images was a "fair use" under copyright law and the investigation regarding Zellner had ended.

Zellner also argued that the public's interest in protecting Zellner's privacy outweighed the public's interest in obtaining the images. The court disagreed, finding the public has significant interest in the release of the images because "[p]ublic school teachers like Zellner are in a significant position of responsibility and visibility. They are entrusted with the responsibility of teaching children and the public has an interest in knowing about such allegations of teacher misconduct and how they are handled."

"The presumption of complete public access, based on a public policy determination that records should usually be open for review, outweighs the public's interest in protecting the privacy and reputation of a citizen such as Zellner in this case."

Additional Documents:

• Media Online 5-07