When the First Amendment Trumps the Right of Privacy

Many of the commentators who disagreed with my conclusions about the McDermott / Boehner case of Congressman Jim McDermott argued that Congressman Boehner had a right to his privacy and McDermott was wrong to violate it. Consciously or unconsciously they struck right to the core of the debate.

When does the First Amendment trump the right to privacy?

In other words, if there is information that is important -- even vital -- to us as citizens in a democratic society, do we have a right to know about it?

Think Memogate, where Republican staffers took advantage of a computer glitch (or engaged in illegal computer hacking, depending on one's point of view) to download Democratic strategy papers.

Think Filegate, where Democrats wrongfully obtained FBI files of private individuals.

Think COINTELPRO activities that included warrant-less breaking into and searching homes of various Americans to "discover" their activities.

Think secret CIA prisons abroad, discovered because of the illegal passing on to reporters of classified documents.

Think the Iran-Contra scandal, Valerie Plame, Watergate, etc. and etc.

In each of these cases, wrongfully obtained information made its way into the media stream -- and American households. Because of that information, we learned important information that affected how our democracy worked (or didn't) -- and were able to force adjustments to bring it back into line with what our founding fathers had in mind.

But, what about the privacy of the people who were part of the wrongfully obtained material?

Right now three conditions have to exist for the right of privacy to be trumped by the first amendment:

1. the material has to be lawfully received by the defendant. (Note: Part of Boehner's argument is that McDermott did not legally receive the material because in fact McDermott was a co-conspirator in illegally obtaining it. Of course McDermott's defense vigorously argues against this claim because it is simply not true. McDermott didn't seek out this material, it fell into his lap.)
   
2. The material has to be true; and
   
3. The contents have to be something important to the public at large. (All the cases I refer to above met these conditions.)

McDermott legally received a recording of an illegally intercepted cell phone call. Because the contents of the tape indicated that Speaker Gingrich was violating an agreement he'd made with the Ethics Commission, McDermott assessed it as a matter the public had a right to know. He exercised his rights under the first amendment. He released the tape to the media.

I know that I do not want conniving wrong-doers representing my interests in the government. I don't care what party they belong to. It was important for me -- and I would venture to assume many others across party lines -- to be aware of this information so we could act on it and demand changes.

This holds true as well for other issues of importance to citizens of the country.

Yet, when the court decided to fine McDermott for releasing this tape, the implications are enormous. If at the end of this civil case, Boehner wins with his argument, the whole privacy vs. first amendment landscape changes. If fact, with a victory, Boehner would be able to successfully sue the New York Times and anybody else who passed the story along to the public.

This case has privatized (the Justice Department refused to hear Boehner's complaint so he went to civil court with it) in private litigation very important issues regarding the first amendment and other issues that have great importance to the nation.

McDermott has tried to fight this valiantly. He has been forced as a private citizen to carry the whole burden of this issue.

Those who take their first amendment rights seriously should support McDermott in this issue. The media companies should be supporting McDermott in continuing this fight by supporting him financially and with further briefs. And those of us who can afford it -- be counted with even a $25 contribution -- should donate to McDermott's legal defense fund.

Sadly, it costs enormous amounts of money to protect our first amendment rights.

This is not just trying to bail out McDermott because he has been the victim of a personal assault. There is a major issue at stake here and we need to fight for this. We are dealing with a matter of public importance. If they can get McDermott they can get anybody.

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Written in collaboration with Jennifer Hicks