I met Congressman Jim McDermott in 1996 when I was running for U.S. Congress in the third district of New York. I had been getting the cold shoulder from the administration but not from the Congressman. He took me under his wing and during that time, I found nothing that we disagreed about.
I've watched his career with both pride and dismay. I was proud to know him when he was involved in events that led to the resignation of Newt Gingrich. I was proud to know him when he stood up against our invasion of Iraq right from the beginning and while in Iraq with former Congressman David Bonior, told George Stephanopoulos and the world a truth we are only now coming to believe: "I think the president would mislead the American people." 1 (See the full attack story in the Weekly Standard.)
However, I've been dismayed and horrified by the suffering he has endured over the years for simply -- but valiantly -- doing his job. Cross the GOP and watch out. They turn the right-wing message machine against you. They harass you with complaints and legal suits. Anyone can file a legal suit and then you have to defend yourself.
Wasn't Congressman McDermott doing his job as co-chair of the Congressional Ethics Committee when he passed along to the New York Times an audiotape of a phone call between Newt Gingrich, then-Congressman John Boehner, and others where Gingrich clearly violated the terms of an agreement he'd made with a special investigative team of the Ethics Committee?
Apparently not, according to now-Majority Leader Boehner. Boehner, a participant in the call, said the tape was made illegally by a couple in Florida (it was). He also claimed that McDermott, who received the tape from the couple, knew it was obtained illegally and therefore had no right to disseminate its contents -- and by doing so, McDermott violated his rights and he deserves damages.
So, for the first time in the history of Congress one Congressman, Boehner, sued another, McDermott, in civil court.
Nine years and $440,000 later, Jim McDermott is still fighting this battle.
During round three, the Supreme Court, which had just ruled in favor of the defendant in a similar case called Vopper v Bartnicki, sent back McDermott's case to the original district court, annulling the district court's original decision.
It seems clear that the Supreme Court's intention in doing so was to allow the district judges to review the Bartnicki case, which in essence said that no one could be punished for disclosing the contents of an illegally intercepted conversation as long as the information in it was an issue of "public importance," and that the person disclosing the information did not "participate" in or "encourage" the interception of the phone call.
The judges didn't do that though. District Judge Hogan ruled against McDermott the second time and assessed fines and damages for Boehner and also required McDermott to pay Boehner's legal fees! McDermott appealed this decision making it round six of the legal fight.
Round six ended yesterday with a victory for Boehner in the Court of Appeals. The same three judges that ruled for Boehner the first time ruled the same again. This time Judge Ginsburg, the chief judge who wrote the opinion, employed what I think to be a "stolen property, found diamond" argument (more of this later). Ginsberg, with Judge Randolph, confirmed Judge Hogan ruling in the lower district court. McDermott must pay a $10,000 fine, $50,000 in punitive damages, and the legal fees of Boehner (claimed by Boehner to be $700,000)!
As horrible as this is for Congressman Jim McDermott, it is worse for our First Amendment rights. Seventeen media companies stood on the side of Jim McDermott's rights of speech in the amicus brief presented to Ginsberg and the Court of Appeals. If this case is not challenged a new precedent is set. Reporters will not be allowed to accept or report on any material passed onto them if they "knew or had 'reason to know' that it was so acquired" illegally.
Think Deep Throat or the Pentagon Papers when you consider the consequences of this precedent.
Read the whole history of this story and decide what free speech really means.
I expect and hope McDermott plans to take this back to the Supreme Court for the final round six. But meanwhile, I'm urging everyone to support McDermott by circulating this blog and by contributing to his re-election campaign. Both he and Boehner are allowed to fund this battle from campaign funds.. If you are like me and want to contribute the most possible, $5000, make your contribution to his Legal Defense Fund directly at http://www.McDermottLegalTrust.com.
1. Hayes, Stephen F. "The Baghdad Democrats." The Weekly Standard, October 14, 2002. Volume 008, Issue 05. Online at http://www.weeklystandard.com/Content/Public/Articles/000/000/001/737zcgnk.asp.
Written in collaboration with Jennifer Hicks.