The U.S. Court of Appeals for the District of Columbia issued its en banc decision in Boehner v. McDermott, the long-running litigation between Republican Congressman John Boehner and Democratic Congressman James McDermott over whether McDermott violated federal law when he gave to the press a tape recording of an illegally intercepted cell phone conversation in which Representative Boehner participated. In a divided opinion, the D.C. Circuit affirmed the lower court's judgment in favor of Boehner.
The line-up of today's decision is quite interesting. The court effectively split 4-1-4. Judge Randolph wrote the majority opinion, holding that McDermott's disclosure of the tape was not protected by the First Amendment and vioalted House Ethics rules. He was joined by Chief Judge Ginsburg and Judges Henderson and Brown. Judge Sentelle wrote the dissent, arguing that McDermott's disclosure of the tape was fully protected by the First Amendment. His dissent was joined in full by Judges Garland, Rogers, and Tatel. Judge Griffith split the difference, joining the first part of Sentelle's dissent, but ultimately joining the majority. As Griffith explained:
Although I agree that Representative McDermott’s actions were not protected by the First Amendment and for that reason join Judge Randolph’s opinion, I write separately to explain that I would have found the disclosure of the tape recording protected by the First Amendment under Bartnicki v. Vopper, 532 U.S. 514 (2001), had it not also been a violation of House Ethics Committee Rule 9, which imposed on Representative McDermott a duty not to “disclose any evidence relating to an investigation to any person or organization outside the Committee unless authorized by the Committee.” Although the Court does not and need not reach the Bartnicki issue to resolve the matter before us, two previous panels in this case have held that the congressman’s actions were not protected by the First Amendment. I believe it is worth noting that a majority of the members of the Court—those who join Part I of Judge Sentelle’s dissent—would have found his actions protected by the First Amendment. Nonetheless, because Representative McDermott cannot here wield the First Amendment shield that he voluntarily relinquished as a member of the Ethics Committee, I join Judge Randolph’s opinion in concluding that his disclosure of the tape recording was not protected by the First Amendment.Is this the last we have heard of this case? I would suspect so. Although this is a fascinating case that presents some interesting questions, I doubt the Supreme Court would accept a petition for cert (although that prediction is worth even less than you paid for it).