Full District Court Will Hear McDermott v Boehner
There's something about the First Amendment that gets people all riled up.
Everyone's for it -- when it's to their benefit. Yet, when someone feels their action or activity should be secret, and someone else makes it public, the first party often calls foul -- even if what they did is something that affects the American public.
Well, in September we'll get to see a full-panel federal appeals court debate the merits of First Amendment rights. More accurately, we'll get to see them debate the issue of when the public's right to know outweighs the individual's right to privacy.
And the cause célèbre that brings this to the forefront is Rep. Jim McDermott, who more than nine years ago turned over a legally obtained, but illegally recorded, tape of a telephone call between Newt Gingrich and Rep. Boehner (who was on his cell phone, thus making the intercept possible), as well as other power players in the House.
The tape recording seemed to show Gingrich engaging in conduct that violated the terms of the agreement with the Ethics Subcommittee following an investigation into his conduct. McDermott was the ranking Democrat on the Ethics Committee investigating Gingrich, explaining why he was chosen by the call's recorders to receive the tape.
When Boehner first sued, claiming his right to privacy had been violated, the court dismissed his case. Boehner appealed; the appeal court overturned the first verdict and said McDermott was wrong. Another appeal later, the second decision was upheld. More appeals; more decisions; more money for lawyers and courts.
Last month I blogged that the latest ruling in favor of Boehner and against Jim's claim that he was legally exercising First Amendment rights, could cost Jim a $10,000 fine, $60,000 in damages, and a reasonable amount of Boehner's legal expenses (which till then added up to $700,000). For more details check out these blogs: Congressman Jim McDermott On The Ropes When The First Amendment Trumps The Right of Privacy McDermott Can't Win Against Boehner
Now, the appeals court has agreed to hear Jim's appeal -- and in doing so has vacated their earlier decision.
This case, which will be heard in September, has an opportunity to be definitive on this whole assault on the first amendment.
Think the New York Times and the Bush administration attack against it for running a story about the government's tracking of millions of international transfers of money through the Brussels-based banking consortium known as Swift. The administration asked the paper not to print the story, alleging it would hamper their antiterrorism programs. The NYT determined the story was newsworthy and in the public's interest, and ran it.
Where do individual rights fit when measured against the public right -- and need to know?
McDermott's case will be the first to come to the full 9-judge panel of the appeals court that deals with today's dispute about the First Amendment. The court will again decide whether Jim's first amendment right to distribute the information knowing it was in the public interest or whether Boehner's right to privacy are more important
Of course, this appeal will incur additional legal fees and court costs. Jim shouldn't have to shoulder this burden of protecting the First Amendment alone.
As I've done before, I'm doing again -- I'm asking you to contribute to his campaign fund. Your contribution will accomplish two things: it will show him your philosophical support in his efforts, and it will help alleviate the heavy burden of his legal expenses.
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Written in collaboration with Jennifer Hicks