Keeping clam works

Democrat Congressman Jim McDermott wasn't talking to the press about his role in that infamous telephone-call taping case, but he may have done reporters a favor in a roundabout way. Legal observers think he struck a blow for freedom of—if not theft for—the press by clamming up. His silence in part prompted a federal judge to recently toss out a civil lawsuit brought against McDermott by the injured caller, Republican congressman John Boehner.

Boehner's GOP conference cell phone call, mapping out a strategy to help House Speaker Newt Gingrich wriggle out of pending ethics violations, was taped last December by a Florida couple using a radio scanner to intercept the call. Though that's against the law, it's a charge difficult to prove unless the interceptor provides the evidence—which the Florida couple did.

They reputedly turned over the tape to McDermott, who allegedly then turned over a transcript of it to The New York Times and other newspapers, resulting in a story revealing the behind-the-scenes plotting to get Gingrich out of hot water. When the couple's names surfaced, they were charged, pled guilty, were fined, and admitted they gave the tape to McDermott.

Unlike the Floridians, the Seattle congressman wasn't talking, or providing evidence against himself. Though he was roundly criticized (for being a leaker in DC?), he implied he had done nothing wrong. The Justice Department reviewed the incident but made no decisions. Boehner then filed what is believed to be the first personal injury lawsuit by one congressman against other, claiming McDermott's actions harmed him to the tune of $10,000 (the aggrieved Boehner may have already leveraged that much by citing the lawsuit in his fund-raising letters).

The court agreed with McDermott, reluctantly. In tossing the suit, US Judge Thomas Hogan allowed that his ruling might encourage "laundering" of such items and was critical of McDermott—"supposedly . . . a beacon of ethical behavior"—for capitalizing "on the skullduggery of would-be party operatives to win petty, partisan victories in the press." Nonetheless McDermott had the First Amendment, and a loophole in the Electronics Communications Privacy Act, on his side. The law applies to those who intercept calls, not those receiving the information from the interceptors. Cynthia Cotts of the National Law Journal, writing recently in the online magazine Salon, says that decision "suggests reporters can use stolen material so long as they didn't do any stealing themselves." Paul McMasters of the free-speech Freedom Forum says this simply means a reporter should stay at arm's length from the hot goods: "Don't say 'Could you get me the file?' Say, 'If you have anything on it, it would sure be helpful to me."'

The "McDermott Rule" comes too late, though, to guide former Cincinnati Post reporter Mike Gallagher, currently the most notorious accused reporter/thief. Gallagher is alleged to have stolen voice-mail messages from Chiquita Brands for use in a now-rejected exposé of the company's practices. Gallagher apparently did the breaking and entering himself. As McDermott could tell him, what Gallagher needed was a Florida couple — if not a McDermott—of his own.

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