I recently returned from Washington, D.C., where I was working on this story about an interesting lawsuit that’s been plaguing Seattle Congressman Jim McDermott for the last eight years. While I was writing the piece, I came across this interesting side-story that I wasn’t able to fit into my article in this week’s Stranger:
The lawsuit against McDermott arises out of an audio tape that he leaked to the New York Times and other papers back in 1997, and over the years this suit has come to constitute a significant challenge to First Amendment freedoms that could soon wind up at the U.S. Supreme Court.
The person who’s suing McDermott is Republican John Boehner of Ohio, currently the House Majority Leader. He’s upset because the tape recorded a secret conference call that he, Newt Gingrich, and other Republicans had convened in order to plot how to spin a 1996 ethics charge against Gingrich — exactly the type of spin that Gingrich had earlier promised the House ethics committee he wouldn’t engage in.
McDermott didn’t make the tape recording. (To read the long, strange tale of how it came to be in his hands, click here.) But Boehner now wants McDermott to pay dearly for leaking the tape, and has sued McDermott for violating his privacy. It’s the first time one Congressman has sued another, and the case has already cost each of them over half a million dollars.
Seventeen media organizations are backing McDermott in his argument (made most recently before the U.S. Court of Appeals in D.C.) that he had a First Amendment right to leak the tape. They all note that while the tape was made illegally, it wasn’t made illegally by McDermott. And once the tape landed in McDermott’s hands, he and the media organizations argue, he had a right to make sure such an important document was publicly disseminated. (Which, by the way, is exactly the kind of thing that newspapers often do when important information comes to them from sources who broke the law in order to obtain that information [see, for example, the Pentagon Papers]).
Among the media organizations supporting McDermott through their “friend of court” brief: The New York Times, the Washington Post, the Associated Press, CNN; Time Inc.; Dow Jones & Company, Inc. (publisher of the Wall Street Journal); Daily News, L.P. (publisher of the New York Daily News); and the Hearst Corporation (publisher of the Seattle Post-Intelligencer).
Not backing McDermott: The Seattle Times.
Why not? Well, it’s not exactly clear, even to people at the Times, as you can tell from my story. The executives in the paper’s news department, who would have made the decision on whether or not to back McDermott, can’t recall whether they were ever asked to join the brief. But the editorial writers at the paper (who would not be involved in such a decision) have made their opinion on the matter quite clear, as evidenced by this recent editorial:
Rep. Jim McDermott, Seattle Democrat, was not acting ethically a decade ago when he leaked an illegally taped phone conversation to The New York Times… McDermott says it is a matter of principle: the right of the people to know what their government is doing. That is a right frequently invoked, but in practice it is a kind of general interest shared by the press and the public.
News organizations have their interests, and we note that ABC, NBC, CBS, CNN, The Associated Press, The New York Times and The Washington Post have joined with McDermott. Here, we think, they pursue their interests and excuse wrongdoing.
The right involved here is specific. It is privacy. McDermott took a private telephone conversation, protected by law, and gave it to a newspaper. Doing this was in his political interest — between the law and his interest, he chose his interest. His solicitude for people’s rights did not include the rights of political opponents not to be the subject of, in essence, private wiretapping.
An interesting argument. But if you get your hands on a copy of the brief filed by all those other, supposedly self-interested news organizations, you will find that they write this, on page 25:
Certainly, the government may seek to control invasions of privacy in communications, or seek to control the flow of sensitive information to third parties and the press under certain circumstances. [Just not this one.]
And then, as precedent for the idea that there are some limits to First Amendment protections, they cite the 1984 Supreme Court case Seattle Times Co. v. Rhinehart. It turns out that in 1984 the Seattle Times, the same paper that today is slamming McDermott for testing the limits of First Amendment rights, went all the way to the Supreme Court to defend its own limit-testing idea: That the Times had a right to publish sensitive information produced during pre-trial discovery.
And not just any pre-trial discovery, but pre-trial discovery in a libel suit filed against the Times by a small religious group (some have called it a cult) known as The Aquarian Foundation. The Supreme Court ruled unanimously against the Seattle Times, saying that courts can use “protective orders” to keep sensitive pre-trial discovery information from being made public, even by the media.
In other words, in 1984, the Seattle Times was the party trying to make private information public, and pushed so hard to do this that the Supreme Court unanimously felt it had to push back and draw a line beyond which First Amendment freedoms do not apply. At the time, the Seattle Times complained that this kind of line drawing would constitute a “prior restraint” on its freedom of expression. What a difference 22 years makes. Today, against the judgment of its media-industry peers (and betters), the Times is embracing its own brand of prior restraint, using its editorial page to try to dissuade McDermott from pursuing his own First Amendment fight.
BONUS ASSIGNMENT: If I was a betting man, I would bet that in the 1980s the Times ran editorials praising its own willingness to take a big First Amendment battle all the way to the U.S. Supreme Court. Wouldn’t it be interesting to contrast one of those editorials with the editorial I quoted from above? The problem is, the Times’ online archives only go back to 1991. Internet fame is promised to anyone who can find me a Times editorial on the Rhinehart case that would make for fun reading when juxtaposed with the paper’s more recent stance on McDermott’s First Amendment case. (Dig fast, I have an intern down at the Seattle Public Library doing the same as we speak…)