Boehner, John A. v. McDermott, James A.

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 31, 2006 Decided May 1, 2007

& January 25, 2007

No. 04-7203

JOHN A. BOEHNER,

APPELLEE

v.

JAMES A. MCDERMOTT,

APPELLANT

Appeal from the United States District Court

for the District of Columbia

(No. 98cv00594)

Christopher Landau argued the causes for appellant. With

him on the briefs was Frank Cicero Jr.

Theodore J. Boutrous Jr. and Thomas H. Dupree Jr. were

on the brief for amici curiae Dow Jones & Company, et al. in

support of appellant urging reversal.

Michael A. Carvin argued the causes for appellee. With

him on the briefs was Louis K. Fisher.

2

Before: GINSBURG, Chief Judge, and SENTELLE,

HENDERSON, RANDOLPH, ROGERS, TATEL, GARLAND, BROWN

and GRIFFITH, Circuit Judges.*

Opinion for the Court filed by Circuit Judge RANDOLPH.

Concurring opinion filed by Circuit Judge GRIFFITH.

Dissenting opinion filed by Circuit Judge SENTELLE, in

which Circuit Judges ROGERS, TATEL and GARLAND join and

Circuit Judge GRIFFITH joins as to Part I.

RANDOLPH, Circuit Judge: Both parties to this case are

members of the United States House of Representatives. John

A. Boehner, the plaintiff, represents Ohio’s Eighth District.

James A. McDermott, the defendant, represents Washington’s

Seventh District. The complaint alleged that Representative

McDermott violated 18 U.S.C. § 2511(1)(c) when he disclosed

a tape recording of an illegally intercepted conversation in

which Representative Boehner participated.

In our initial decision in this case, we held that

Representative McDermott did not have a First Amendment

right to disclose the tape. Boehner v. McDermott, 191 F.3d 463

(D.C. Cir. 1999). The Supreme Court vacated our decision and

returned the case to us for further consideration in light of

Bartnicki v. Vopper, 532 U.S. 514 (2001). See 532 U.S. 1050

(2001). We remanded the case to the district court. After the

parties engaged in discovery, the district court granted summary

judgment in favor of Representative Boehner, awarding him

$ 10,000 in statutory damages, see 18 U.S.C. § 2520(c)(2),

$ 50,000 in punitive damages, and reasonable attorney’s fees

and costs. A panel of this court, with one judge dissenting,

*

Circuit Judge Kavanaugh did not participate in this matter.

3

affirmed on the ground that Representative McDermott had not

lawfully obtained the tape recording. Boehner v. McDermott,

441 F.3d 1010 (D.C. Cir. 2006). We vacated that decision and

ordered the case reheard en banc. Boehner v. McDermott,

No. 04-7203 (D.C. Cir. June 23, 2006) (order granting rehearing

en banc).

I.

On remand, the record developed in discovery showed the

following.

On December 21, 1996, Representative Boehner

participated in a conference call with members of the

Republican Party leadership, including then-Speaker of the

House Newt Gingrich. At the time of the conversation Gingrich

was the subject of an investigation by the House Committee on

Standards of Official Conduct, commonly known as the House

Ethics Committee. Representative Boehner was chairman of the

House Republican Conference. The participants discussed how

they might deal with an expected Ethics Committee

announcement of Gingrich’s agreement to accept a reprimand

and to pay a fine in exchange for the Committee’s promise not

to hold a hearing.

Representative Boehner was in Florida when he joined the

conference call. He spoke from a cellular telephone in his car.

John and Alice Martin, who lived in Florida, used a police radio

scanner to eavesdrop on the conversation, in violation of 18

U.S.C. § 2511(1)(a). They recorded the call and delivered the

tape in a sealed envelope to the Florida office of then-

Representative Karen Thurman. Staff members forwarded the

envelope to Thurman’s Washington office. On January 8, 1997,

Thurman’s chief of staff learned that the Martins would be

visiting the Washington office. Both Thurman and her chief of

4

staff sought legal advice about accepting the tape, presumably

because they knew of its contents and how it had been recorded.

At some point they consulted then-Representative David

Bonior’s chief of staff and legislative director. Stan Brand,

former General Counsel to the House of Representatives,

advised that the tape should not be accepted under any

circumstances and that it should be turned over to the Ethics

Committee or other appropriate authorities. When the Martins

arrived at Thurman’s office, her chief of staff returned the tape

in its unopened envelope and suggested they turn it over to the

Ethics Committee.

At about 5 p.m. on January 8, 1997, in a small anteroom

adjacent to the Ethics Committee hearing room, the Martins

delivered the tape to Representative McDermott in a sealed

8-1/2" by 11" envelope. At the time, Representative McDermott

was the ranking Democrat on the Ethics Committee. With the

envelope the Martins also delivered a business card and a typed

letter dated January 8, 1997, and addressed to “Committee On

Standards of Official Conduct . . . Jim McDermott, Ranking

Member.” The letter read:

Enclosed in the envelope you will find a tape of a

conversation heard December 21, 1996 at about

9:45 a.m. The call was a conference call heard over a

scanner. We felt the information included were [sic] of

importance to the committee. We live in the 5th.

Congressional District and attempted to give the tape to

Congresswoman Karen Thurman. We were advised by

her to turn the tape directly over to you. We also

understand that we will be granted immunity.

My husband and I work for Columbia County Schools in

Columbia County Florida. We pray that committee will

consider our sincerity in placing it in your hands.

5

We will return to our home today.

Thank you for your consideration.

John and Alice Martin

After conversing with the Martins, Representative McDermott

accepted the envelope and returned to the Ethics Committee

hearing room.

Later that evening, during a recess, Representative

McDermott left the Ethics Committee hearing room and went to

his office. There he opened the Martins’ envelope, emptied the

contents, and listened to the tape. Still later, he called two

reporters: Jeanne Cummings of The Atlanta Journal-

Constitution, for whom he left a message, and Adam Clymer of

The New York Times, whom he reached. Clymer went to

Representative McDermott’s office, listened to the tape, and

made a recording of it. Cummings returned Representative

McDermott’s call the next day and came to his office and

listened to the tape.

The contents of the tape had substantial news value. In

particular, the tape revealed information bearing on whether

Gingrich had violated his settlement agreement with the Ethics

Committee. On January 10, 1997, The New York Times

published a front-page article by Clymer entitled “Gingrich Is

Heard Urging Tactics in Ethics Case.” The article, which

included lengthy excerpts of the recorded conversation, reported

the circumstances leading to the disclosure of the tape:

The call was taped by people in Florida who were

unsympathetic to Mr. Gingrich and who said they heard

it on a police scanner that happened to pick up the

cellular telephone transmissions of one of the

6

participants. It was given to a Democratic Congressman,

who made the tape available to The New York

Times. . . .

Mr. Gingrich, Mr. Bethune and the others discussed their

tactics in a conference telephone call, a transcript of

which was made available by a Democratic

Congressman hostile to Mr. Gingrich who insisted that

he not be identified further.

The Congressman said the tape had been given to him on

Wednesday by a couple who said they were from

northern Florida. He quoted them as saying it had been

recorded off a radio scanner, suggesting that one

participant was using a cellular telephone. They said it

was recorded about 9:45 A.M. on Dec. 21.

Adam Clymer, Gingrich Is Heard Urging Tactics in Ethics

Case, N.Y. TIMES, Jan. 10, 1997, at A1, A20. The Atlanta

Journal-Constitution ran a similar story the following day. See

Jeanne Cummings, Gingrich Ethics Case: Panel Trusted His

Motives, Gingrich Told GOP Allies, ATLANTA J.-CONST., Jan.

11, 1997, at 6A.

On January 13, 1997, the Martins held a press conference

and identified Representative McDermott as the congressman to

whom they had delivered the tape. Representative McDermott

then sent copies of the tape to the offices of the Ethics

Committee and resigned from the Committee. The Committee

Chairman, then-Representative Nancy Johnson, forwarded the

tape to the Department of Justice. The government prosecuted

the Martins for violating 18 U.S.C. § 2511(1)(a), which forbids

unauthorized interception of “wire, oral, or electronic

communication.” The Martins pled guilty and were fined $ 500.

7

On cross motions for summary judgment, the district court

held that Representative McDermott violated 18 U.S.C.

§ 2511(1)(c) when he disclosed the tape to the reporters.

Boehner v. McDermott, 332 F. Supp. 2d 149, 158 (D.D.C.

2004). Section 2511(1)(c) makes intentional disclosure of any

illegally intercepted conversation a criminal offense if the

person disclosing the communication knew or had “reason to

know” that it was so acquired. The district court viewed the

crucial issue to be whether Representative McDermott lawfully

obtained the tape from the Martins. See id. at 163-64. The court

held there was no genuine issue of material fact that the Martins’

letter to Representative McDermott had been outside of the

envelope containing the tape and that Representative

McDermott must have read it. Id. at 166-67, 169. This

established that Representative McDermott, when he accepted

the tape, knew the Martins had illegally intercepted the

conversation and illegally disclosed it to him. It followed that

he did not lawfully obtain the tape. Id. at 165-66, 169. On

appeal, a divided panel of this court agreed that Representative

McDermott obtained the tape unlawfully, but for reasons other

than those the district court gave. 441 F.3d at 1016-17.

II.

This is an as-applied challenge to 18 U.S.C. § 2511(1)(c).

The question therefore is whether Representative McDermott

had a First Amendment right to disclose to the media this

particular tape at this particular time given the circumstances of

his receipt of the tape, the ongoing proceedings before the Ethics

Committee, and his position as a member of the Committee. In

answering this question we shall assume arguendo that

8

Representative McDermott lawfully obtained the tape from the

Martins.1

Whatever the Bartnicki majority meant by “lawfully

obtain,” see 532 U.S. at 538 (Breyer, J., joined by O’Connor, J.,

concurring), the decision does not stand for the proposition that

anyone who has lawfully obtained truthful information of public

importance has a First Amendment right to disclose that

information. Bartnicki avoided laying down such a broad rule

of law, see 532 U.S. at 528-29, and for good reason. See

Rodney A. Smolla, Information as Contraband: The First

Amendment and Liability for Trafficking in Speech, 96 NW. U.

L. REV. 1099, 1126-32 (2002). There are many federal

provisions that forbid individuals from disclosing information

they have lawfully obtained. The validity of these provisions

has long been assumed. Grand jurors, court reporters, and

prosecutors, for instance, may “not disclose a matter occurring

before the grand jury.” FED. R. CRIM. P. 6(e)(2)(B). The

Privacy Act imposes criminal penalties on government

employees who disclose agency records containing information

about identifiable individuals to unauthorized persons. See 5

U.S.C. § 552a(i)(1). The Espionage Act punishes officials who

willfully disclose sensitive national defense information to

persons not entitled to receive it. See 18 U.S.C. § 793(d). The

Intelligence Identities Protection Act prohibits the disclosure of

a covert intelligence agent’s identity. See 50 U.S.C. § 421.

Employees of the Internal Revenue Service, among others, may

not disclose tax return information. See 26 U.S.C. § 6103(a).

State motor vehicle department employees may not make public

information about an individual’s driver’s license or registration.

1

Chief Judge Ginsburg and Judges Henderson, Randolph, and

Brown believe that, for the reasons given in the second panel opinion

in this case, Representative McDermott did not lawfully obtain the

tape. See 441 F.3d at 1016.

9

See 18 U.S.C. § 2721. Employees of the Social Security

Administration, as well as other government employees, may

not reveal social security numbers or records. See 42 U.S.C.

§ 405(c)(2)(C)(viii)(I), (III).2 Judicial employees may not reveal

confidential information received in the course of their official

duties. See CODE OF CONDUCT FOR JUDICIAL EMPLOYEES

Canon 3D. And so forth.

In analogous contexts the Supreme Court has sustained

restrictions on disclosure of information even though the

information was lawfully obtained. The First Amendment did

not shield a television station from liability under the common

law right of publicity when it filmed a plaintiff’s “human

cannonball” act and broadcast the film without his permission.

Zacchini v. Scripps-Howard Broad. Co., 433 U.S. 562, 575-79

(1977). When a newspaper divulged the identity of an

individual who provided information to it under a promise of

confidentiality, the First Amendment did not provide the paper

with a defense to a breach of contract claim. Cohen v. Cowles

Media Co., 501 U.S. 663, 670 (1991). The First Amendment did

not prevent the government from enforcing reasonable

confidentiality restrictions on former employees of the CIA. See

Snepp v. United States, 444 U.S. 507, 509-10 (1980). Parties to

civil litigation did not “have a First Amendment right to

disseminate, in advance of trial, information gained through the

pretrial discovery process.” Seattle Times Co. v. Rhinehart, 467

U.S. 20, 22, 37 (1984).

2

The government can also limit disclosures by persons who

are not its employees without running afoul of the First Amendment.

Private attorneys who reveal their clients’ confidences may be

punished for doing so. And those who sell or rent video tapes or

DVDs ordinarily may not reveal “personally identifiable information

concerning” their customers. See 18 U.S.C. § 2710(b).

10

In United States v. Aguilar, 515 U.S. 593 (1995), a case

closely analogous to this one, the Supreme Court held that the

First Amendment did not give a federal judge, who obtained

information about an investigative wiretap from another judge,

the right to disclose that information to the subject of the

wiretap. The judge challenged his conviction for violating 18

U.S.C. § 2232(c), which prohibits the improper disclosure of an

investigative wiretap.3 In rejecting his First Amendment claim,

the Court wrote that the judge was not “simply a member of the

general public who happened to lawfully acquire possession of

information about the wiretap; he was a Federal District Court

Judge who learned of a confidential wiretap application from the

judge who had authorized the interception, and who wished to

preserve the integrity of the court. Government officials in

sensitive confidential positions may have special duties of non-

disclosure.”4 Id. at 605-06.

Aguilar stands for the principle that those who accept

positions of trust involving a duty not to disclose information

they lawfully acquire while performing their responsibilities

have no First Amendment right to disclose that information.

The question thus becomes whether, in the words of Aguilar,

Representative McDermott’s position on the Ethics Committee

imposed a “special” duty on him not to disclose this tape in

these circumstances. Bartnicki has little to say about that issue.

The individuals who disclosed the tape in that case were private

citizens who did not occupy positions of trust.

3

The equivalent provision is currently codified at § 2232(d).

4

See CODE OF CONDUCT FOR UNITED STATES JUDGES Canon

5C(8): “Information acquired by a judge in the judge’s judicial

capacity should not be used or disclosed by the judge in financial

dealings or for any other purpose not related to the judge’s judicial

duties.”

11

All members of the Ethics Committee, including

Representative McDermott, were subject to Committee Rule 9,

which stated that “Committee members and staff shall not

disclose any evidence relating to an investigation to any person

or organization outside the Committee unless authorized by the

Committee.”5 This rule recognizes the unique role of the Ethics

Committee and reflects a desire “to protect the rights of

individuals accused of misconduct, preserve the integrity of the

investigative process, and cultivate collegiality among

Committee members,” STAFF OF H. ETHICS REFORM TASK

FORCE, 105TH CONG., REPORT OF THE ETHICS REFORM TASK

FORCE ON H. RES. 168, at 10-11 (Comm. Print 1997). All

members of the House of Representatives were also subject to

Rule 23 of the House Rules, which stated that “[a] Member . . .

shall adhere to the spirit and the letter of the Rules of the House

and to the rules of duly constituted committees thereof.”

The House has the power to make and enforce such rules

under the Rulemaking Clause of the Constitution, which states

that “Each House may determine the Rules of its Proceedings,

punish its Members for disorderly Behaviour, and, with the

Concurrence of two thirds, expel a Member,” U.S. CONST. art.

I, § 5, cl. 2. There is no question that the rules themselves are

reasonable and raise no First Amendment concerns. Counsel for

Representative McDermott conceded that the House could,

consistent with the First Amendment, punish Representative

McDermott if it determined he had violated its rules by releasing

the Martins’ tape to the media.

5

Under House Rule 10, clause 4(e)(3) of the 105th Congress,

the special proceedings dealing with Gingrich proceeded under the

rules applicable to the 104th Congress. Thus, although Representative

McDermott disclosed the tape during the 105th Congress, the

applicable rule was that of the 104th Congress.

12

If the First Amendment does not protect Representative

McDermott from House disciplinary proceedings, it is hard to

see why it should protect him from liability in this civil suit.

Either he had a First Amendment right to disclose the tape to the

media or he did not. If he had the right, neither the House nor

the courts could impose sanctions on him for exercising it. If he

did not have the right, he has no shield from civil liability or

from discipline imposed by the House. In that event, his civil

liability would rest not on his breach of some ethical duty, but

on his violation of a federal statute for which he had no First

Amendment defense. The situation is the same as that in

Aguilar. There the defendant-judge was punished not for

violating his ethical duty to maintain judicial secrecy, but for

violating the general prohibition on disclosing investigative

searches.6

The only remaining question is whether the tape fell within

Representative McDermott’s duty of confidentiality under the

rules of the House and the Ethics Committee. Representative

McDermott claims the tape did not fall within his duty of

confidentiality because, rather than “internal Committee

information,” it was a “recording of a conversation among

persons outside the Committee received unsolicited from other

persons outside the Committee.” Citing United States v.

Rostenkowski, 59 F.3d 1291 (D.C. Cir. 1995), he contends the

rules are too ambiguous for the court to apply in this case. In

6

The code of conduct applicable to federal judges is not

judicially enforceable; its commentary states that “the Code is not

designed or intended as a basis for civil liability or criminal

prosecution.” CODE OF CONDUCT FOR UNITED STATES JUDGES Canon

1 cmt. Nevertheless, the Supreme Court in Aguilar essentially took

notice of the applicable standard of conduct in deciding that the

defendant-judge had no First Amendment defense to criminal liability

for disclosing a wiretap. See 515 U.S. at 605-06.

13

Rostenkowski, we noted that “the Rulemaking Clause of Article

I clearly reserves to each House of the Congress the authority to

make its own rules.” Id. at 1306. When “a court cannot be

confident that its interpretation is correct, there is too great a

chance that it will interpret the Rule differently than would the

[House] itself.” Id. Thus, “a sufficiently ambiguous House

Rule is nonjusticiable.” Id.

Here we can be confident that the rules covered

Representative McDermott’s handling of the tape. On

December 8, 2006, the Ethics Committee adopted the report of

the investigative subcommittee dealing with Representative

McDermott’s disclosure of the tape. The report emphasized “the

unique charter of the Committee to conduct its work in a non-

partisan manner, and the threat posed to the integrity of the

House of even the appearance of unfairness to Members under

investigation or of bias or impartiality by Members of the

Committee.” In re Representative James McDermott, H.R. REP.

NO. 109-732, at 17 (2006). After discussing Committee Rule 9

and House Rule 23, among other rules, the report concluded

“Representative McDermott’s conduct, i.e., his disclosure to the

news media of the contents of the tape furnished to him by the

Martins, was inconsistent with the spirit of the applicable rules

and represented a failure on his part to meet his obligations as

Ranking Minority Member of the House Select Committee on

Ethics.” Id. at 16. The report said Representative McDermott

should have “entrust[ed] the Committee at the outset with the

information to which he alone on the Committee had access.”

Id. at 17.

We agree with and accept the Ethics Committee’s

interpretation of the rules as applied to this case, and thereby

14

eliminate the concerns mentioned in Rostenkowski.7 When

Representative McDermott became a member of the Ethics

Committee, he voluntarily accepted a duty of confidentiality that

covered his receipt and handling of the Martins’ illegal

recording. He therefore had no First Amendment right to

disclose the tape to the media.

Affirmed.

7

Representative McDermott makes much of the fact that the

investigative subcommittee did not adopt a Statement of Alleged

Violation under Committee Rule 19(f) of the Ethics Committee, but

rather issued a report under Committee Rule 19(g) without

recommending further disciplinary proceedings. We cannot see why

this matters. The subcommittee reached conclusions adverse to

Representative McDermott, finding that his disclosure of the tape not

only violated the spirit of the rules but also violated “his obligations

as Ranking Minority Member.” In re Representative James

McDermott, H.R. REP. NO. 109-732, at 16 (2006). The Committee

ratified the subcommittee’s findings, adopting the report “as the

Report of the full Committee.” See COMMITTEE ON STANDARDS OF

OFFICIAL CONDUCT, SUMMARY OF ACTIVITIES, H.R. REP. NO.

109-744, pt. VII (2007). The Committee necessarily believed that it

had authority to act as it did, and “the rules of a particular committee

are for that committee to interpret.” LEWIS DESCHLER & WILLIAM

H OLMES B ROWN , P ROCEDURE IN THE U.S. H OUSE OF

REPRESENTATIVES, 97TH CONGRESS, ch. 17 § 11.1 (4th ed. 1982).

GRIFFITH, Circuit Judge, concurring: 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.

SENTELLE, Circuit Judge, dissenting, with whom Circuit

Judges ROGERS, TATEL, and GARLAND join, and with whom

Circuit Judge GRIFFITH joins as to Part I: The history of this

case is by now quite long, and most of it is set out either in the

majority opinion or in one of the previous iterations of the

underlying events and the court decisions set forth in prior

opinions of this court. See Boehner v. McDermott, 191 F.3d 463

(D.C. Cir. 1999) (“Boehner D.C. Cir. I”); Boehner v.

McDermott, 441 F.3d 1010 (D.C. Cir. 2006) (“Boehner D.C.

Cir. II”). Appellee brought the present action, which the district

court dismissed, reasoning this application of 18 U.S.C. §

2511(1)(c) violated the First Amendment guarantee to the right

of free speech. The defendant appealed. In a split decision, a

panel of this court reversed the dismissal, holding that the

application of section 2511(1)(c) and a parallel Florida statute

“are not unconstitutional as applied in this case.” Boehner D.C.

Cir. I, 191 F.3d at 478; see also id. at 480 (Ginsburg, J.,

concurring). I disagreed with the majority’s opinion then, as I

do today. As I perceived the case then, and as we perceive it

now, the issue is: “Where the punished publisher of information

has obtained the information in question in a manner lawful in

itself but from a source who has obtained it unlawfully, may the

government punish the ensuing publication of that information

based on the defect in a chain?” Id. at 484-85 (Sentelle, J.,

dissenting) (quoted in Bartnicki v. Vopper, 532 U.S. 514, 528

(2001)). We would have answered that question in the negative.

Today I reach that conclusion with confidence, based on the

Supreme Court’s decision adjudicating the constitutionality of

a similar application of this same analysis in Bartnicki.

At approximately the same time that our prior decision was

making its way to the Supreme Court, the Court granted

certiorari in Bartnicki v. Vopper, 200 F.3d 109 (3d Cir. 1999),

to answer precisely the issue before us in Boehner. See

Bartnicki v. Vopper, 530 U.S. 1260 (2000) (granting certiorari).

2

In Bartnicki, the Third Circuit had concluded that the application

of 18 U.S.C. § 2511(1)(c) to prevent disclosure of information

obtained by the disclosing person from a tape of unlawfully

intercepted communications was constitutionally “invalid”

because it “deterred significantly more speech than necessary to

protect the privacy interests at stake.” 532 U.S. at 522. The

Supreme Court expressly granted certiorari “to resolve the

conflict,” between Bartnicki and our decision in Boehner D.C.

Cir. I. Id. The Court affirmed the decision of the Third Circuit,

id. at 535, and thereby resolved the conflict in favor of the Third

Circuit’s decision, not our decision in Boehner.

Thereafter, in the wake of Bartnicki, the Supreme Court

vacated our prior decision in Boehner D.C. Cir. I and remanded

to this court for further consideration in light of Bartnicki. 532

U.S. 1050 (2001). We remanded the matter to the district court.

That court entered a new decision in favor of appellee. Boehner

v. McDermott, 332 F. Supp. 2d 149 (D.D.C. 2004). McDermott

then appealed. A panel of this court reheard the matter and

affirmed the district court, again over my dissent. Boehner D.C.

Cir. II, 441 F.3d 1010. We vacated the panel and set the matter

for the present en banc proceeding. On the issue considered by

the Supreme Court in Bartnicki, the position of the dissent in the

prior panel opinions now commands a majority of the court so

that Section I of this opinion speaks for the court. However,

because of the majority decision as to the Bartnicki issue, the

court found it necessary to reach a second issue not previously

fully considered. As that issue became the rule of decision, and

resulted in an affirmance of the district court; and as a majority

of the court has now decided to affirm the district court on the

basis of the second issue, discussed in Section II of this separate

opinion, that portion of this opinion will speak only for a

dissenting minority of the court.

3

I.

As to the issue dealt with in the prior opinions, speaking

now for a majority of the court, we determine that Bartnicki is

controlling and that the Bartnicki reasoning of the Supreme

Court compels a conclusion that the district court incorrectly

concluded that Bartnicki does not apply.

In Bartnicki, the chief negotiator for a Union Local, which

was then engaged in negotiations on behalf of teachers with a

local school board, used a cellular phone to call the president of

the Union “and engage in a lengthy conversation about the status

of the negotiations.” 532 U.S. at 518. At one point in the

conversation, referring to the school board’s “intransigence,”

she said “‘we’re gonna have to go to their . . . homes . . . [t]o

blow off their front porches . . . .’” Id. at 518-19. A local radio

commentator, respondent in the Supreme Court, broadcast a tape

of the conversation on a radio show. All parties agreed that the

tape, like the tape of Boehner’s conversation released by

McDermott, was the result of an unlawful interception. The

identity of the interceptor remained undisclosed throughout the

litigation. The Union officers, like Boehner in the instant case,

sued the publishers of the contents of the tape. The defendants

included the broadcaster, the radio stations over which he made

his broadcast, and the person who furnished the broadcaster with

the tape, himself the head of a local citizens’ group who testified

that he had obtained the tape when it was left anonymously in

his mailbox. Like Boehner in the case before us, plaintiffs relied

on section 2511(1)(c) and a state statute of similar import. The

district court granted summary judgment for the plaintiffs,

rejecting the defendants’ First Amendment defense. As noted

above, the Third Circuit, in a divided opinion, disagreed,

reversed the trial court, and remanded with directions to the

district court to grant the summary judgment motions of the

defendants on the basis of the First Amendment defense.

4

Bartnicki, 200 F.3d at 129.

On certiorari the Supreme Court, as had the Third Circuit,

ruled that the statute was content neutral and subjected the

statute to review under the “intermediate scrutiny” standard.

532 U.S. at 521, 526. Applying that standard, the Supreme

Court held that the statute was unconstitutional as applied.

In addressing the issue, the Supreme Court adopted my

formulation:

Where the punished publisher of information has obtained

the information in question in a manner lawful in itself but

from a source who has obtained it unlawfully, may the

government punish the ensuing publication of that

information based on the defect in a chain?

Id. at 528 (quoting Boehner D.C. Cir. I, 191 F.3d at 484-85)

(internal quotation marks omitted) (Sentelle, J., dissenting)). In

analyzing the law on that subject, the Supreme Court first noted

that “[a]s a general matter, ‘state action to punish the publication

of truthful information seldom can satisfy constitutional

standards.’” Id. at 527 (quoting Smith v. Daily Mail Publ’g Co.,

443 U.S. 97, 102 (1979)). The Supreme Court then expressed

its continuing belief “that the sensitivity and significance of the

interests presented in clashes between [the] First Amendment

and privacy rights counsel relying on limited principles that

sweep no more broadly than the appropriate context of the

instant case.” Id. at 529 (quoting Florida Star v. B.J.F., 491

U.S. 524, 532-33 (1989)) (alteration in original). In applying

that balance to the facts before it, the Court observed that the

United States, appearing in the case to defend the

constitutionality of the statute, had identified “two interests

served by the statute.” Id. The first of those interests was the

removal of “an incentive for parties to intercept private

5

conversations,” and the second, to “minimiz[e] the harm to

persons whose conversations have been illegally intercepted.”

Id. While the Court was willing to “assume that those interests

adequately justify the prohibition in § 2511(1)(d) against the

interceptor’s own use of information . . . acquired by violating

§ 2511(1)(a),” the Court explicitly stated that “it by no means

follows that punishing disclosures of lawfully obtained

information of public interest by one not involved in the initial

illegality is an acceptable means of serving those ends.” Id.

The Court easily dispensed with the first justification,

opining that “[t]he normal method of deterring unlawful conduct

is to impose an appropriate punishment on the person who

engages in it.” Id. The Court concluded, however, that “it

would be quite remarkable to hold that speech by a law-abiding

possessor of information can be suppressed in order to deter

conduct by a non-law-abiding third party.” Id. at 529-30. It

further noted that “there is no basis for assuming that imposing

sanctions” on the communicating possessor of conversations

illegally taped by another “will deter the unidentified scanner

from continuing to engage in surreptitious interceptions.” Id. at

531. Thus, the Court held that “the Government’s first

suggested justification for applying § 2511(1)(c) to an otherwise

innocent disclosure of public information is plainly insufficient.”

Id. at 532.

However, the Court found the government’s second

justification, that is, the protection of privacy, “considerably

stronger.” Id. It noted the importance of privacy of

communication and the legitimacy of the argument that “fear of

public disclosure of private conversations might well have a

chilling effect on private speech.” Id. at 533. Nonetheless, the

Court was convinced that the enforcement of section 2511(1)(c)

on the facts before it, “implicat[ed] the core purposes of the First

Amendment because it imposes sanctions on the publication of

6

truthful information of public concern.” Id. at 533-34. In

concluding that this second interest did not have sufficient

strength to warrant the limitation on publication of truthful

information of public concern, the Court reiterated the classic

principle that “‘[t]he right of privacy does not prohibit any

publication of matter which is of public or general interest.’” Id.

at 534 (quoting Samuel D. Warren & Louis D. Brandeis, The

Right to Privacy, 4 HARV. L. REV. 193, 214 (1890)).

In the light of the Supreme Court’s resolution of the conflict

between our Boehner decision and the Third Circuit’s decision

in Bartnicki, there is no justification for us to hold otherwise on

the facts before us. There is no distinction of legal, let alone

constitutional, significance between our facts and those before

the Court in Bartnicki. As the panel majority in Boehner D.C.

Cir. II admitted, “[t]he Bartnicki Court held that under the First

Amendment, § 2511(1)(c) was invalid as applied to individuals

who lawfully obtained a tape of such a conversation and then

disclosed it.” 441 F.3d at 1013. That said, appellee is unable to

produce a material distinction between this case and Bartnicki.

Granted, the panel majority stated:

The difference between this case and Bartnicki is plain to

see. It is the difference between someone who discovers a

bag containing a diamond ring on the sidewalk and

someone who accepts the same bag from a thief, knowing

the ring inside to have been stolen. The former has

committed no offense; the latter is guilty of receiving stolen

property, even if the ring was intended only as a gift.

7

Id. at 1017 (footnote omitted). In fact, the difference is not plain

at all. In Bartnicki the Supreme Court expressly stated:

The suit at hand involves the repeated intentional disclosure

of an illegally intercepted cellular telephone conversation

about a public issue. The persons who made the disclosures

did not participate in the interception, but they did know--or

at least had reason to know--that the interception was

unlawful.

532 U.S. at 517-18. The panel majority apparently made a

distinction between the two cases based on an analogy between

a person who buys a diamond ring from a thief, and one who

obtains a stolen diamond ring knowing it to be stolen or having

at least good reason to know that it was stolen. We see no such

distinction, let alone a plain one of constitutional significance.

The Supreme Court underlined the lack of constitutional

significance of the communicator’s knowledge that the

interception had been unlawfully conducted. It stated that “[w]e

accept petitioners’ submission that the interception was

intentional, and therefore unlawful, and that, at a minimum,

respondents ‘had reason to know’ that it was unlawful.” Id. at

525. The panel majority, apparently attempting to shore up its

distinction, stated:

As Chief Judge Ginsburg wrote in the original appeal: “One

who obtains information in an illegal transaction, with full

knowledge the transaction is illegal, has not ‘lawfully

obtain[ed]’ that information in any meaningful sense.”

Boehner D.C. Cir. II, 441 F.3d at 1017 n.6 (quoting Boehner

D.C. Cir. I, 191 F.3d at 479 (Ginsburg, J., concurring))

(alteration in original).

8

The Supreme Court has directly dispelled that notion both

in Bartnicki itself and previously. The Court in Bartnicki

expressly stated, “[respondents’] access to the information on

the tapes was obtained lawfully, even though the information

itself was intercepted unlawfully by someone else.” 532 U.S. at

525. In support of this proposition the court cited and quoted

Florida Star, which stated “[e]ven assuming the Constitution

permitted a State to proscribe receipt of information, Florida has

not taken this step.” 491 U.S. at 536 (emphasis in original).

Florida still has not taken that step, nor has Congress.

Therefore, the otherwise-lawful receipt of unlawfully obtained

information remains in itself lawful, even where the receiver

knows or has reason to know that the source has obtained the

information unlawfully.

Even less convincing is the Boehner D.C. Cir. II panel

majority’s assertion that the Court mentioned the anonymity of

the interceptor in Bartnicki several times and “distinguished this

case on that ground.” 441 F.3d at 1015. The asserted

distinguishing of this case occurred in a footnote stating as

follows:

In the Boehner case, as in this suit, a conversation over a

car cell phone was intercepted, but in that case the

defendant knew both who was responsible for intercepting

the conversation and how they had done it. In the opinion

of the majority [of the D.C. Circuit], the defendant acted

unlawfully in accepting the tape in order to provide it to the

media.

532 U.S. at 522 n.5 (quoted at 441 F.3d at 1014) (internal

citations omitted). The panel majority hastened to say “[w]e do

not want to read too much into the Court’s ‘but’ in the first

sentence, yet one must wonder why the Court drew this

distinction if it meant to adopt the rule Representative

9

McDermott urges on us.” 441 F.3d at 1014. The referenced

footnote occurs in the Court’s statement of the facts of the case

and is never referenced in the legal analysis. Indeed, the

footnote is subscribed to a textual sentence stating “[i]n so

doing, [the Third Circuit dissenter] agreed with the majority

opinion in a similar case decided by the Court of Appeals for the

District of Columbia, Boehner v. McDermott, 191 F.3d 463

(D.C. Cir. 1999).” 532 U.S. at 522. If the Supreme Court in fact

thought that the “distinction” was of constitutional significance,

one must wonder why it thought the different results in the two

circuit cases constituted a disagreement. This wonderment must

be greatly enhanced upon reading the next sentence, which

states, “[w]e granted certiorari to resolve the conflict.” Id. The

Supreme Court then goes on to resolve the conflict without

making any further mention of any factual difference between

the cases. To paraphrase the Boehner D.C. Cir. II panel

majority, one must wonder why the Court so easily dispensed

with the distinction between one who knows who unlawfully

intercepted a conversation and one who knows or has reason to

know it was unlawfully intercepted. Indeed, the Supreme

Court’s disposition of the case lays to rest any distinction even

between the one who knows and the one who has reason to

know. The Court reversed and remanded, directing entry of

judgment for the defense on the constitutional theory. The

record before the Court did not establish whether the defendants

knew or only had reason to know of the unlawful obtaining of

the conversations. If there were any such distinction in the High

Court’s view, the disposition would have been a vacatur and

remand for the lower courts to establish upon which side of the

“distinction” their case fell – that is, to determine whether the

respondents knew or only had reason to know. As the Court

made no such disposition, there is plainly no such distinction of

constitutional magnitude.

10

The Supreme Court has decided the first issue of this case,

that is, whether the United States (or Florida) can

constitutionally bar the publication of information originally

obtained by unlawful interception but otherwise lawfully

received by the communicator, in the negative. We venture to

say that an opposite rule would be fraught with danger. Just as

Representative McDermott knew that the information had been

unlawfully intercepted, so did the newspapers to whom he

passed the information. Representative Boehner has suggested

no distinction between the constitutionality of regulating

communication of the contents of the tape by McDermott or by

The Washington Post or The New York Times or any other media

resource. For that matter, every reader of the information in the

newspapers also learned that it had been obtained by unlawful

intercept. Under the rule proposed by Representative Boehner,

no one in the United States could communicate on this topic of

public interest because of the defect in the chain of title. We do

not believe the First Amendment permits this interdiction of

public information either at the stage of the newspaper-reading

public, of the newspaper-publishing communicators, or at the

stage of Representative McDermott’s disclosure to the news

media. Lest someone draw a distinction between the First

Amendment rights of the press and the First Amendment speech

rights of nonprofessional communicators, we would note that

one of the communicators in Bartnicki was himself a news

commentator, and the Supreme Court placed no reliance on that

fact.

Therefore, as to the first issue, we now determine that the

district court decision in favor of Boehner was incorrect as to

this issue.

11

II.

A.

Notwithstanding the majority’s view that the district court

was incorrect as to the Bartnicki issue, the en banc court now

holds that the judgment in favor of Boehner will be upheld on a

ground different than that relied upon by the district court,

arising from an issue not addressed in the previous majority

opinions of this court. Boehner’s argument, accepted as the

basis of the majority’s holding that the district court should be

affirmed, is that McDermott’s speech was not entitled to the

First Amendment protection recognized in Bartnicki and the

cases upon which it relies, but not because the First Amendment

provides no protection against the imposition of liability under

18 U.S.C. § 2511(1)(c) to the receiver of information unlawfully

obtained by the transferor of the information. Rather, Boehner

argues, the protections of the First Amendment are not available

in an action under § 2511(1)(c) to a public official whose First

Amendment rights are otherwise limited by a body of rules

unrelated to that statute. More specifically, Boehner advances

an argument, which the majority accepts, that starts from the

undisputed factual proposition that McDermott, as a member of

the Ethics Committee of the United States House of

Representatives, was subject to Committee Rule 9. That rule

stated that “Committee members and staff shall not disclose any

evidence relating to an investigation to any person or

organization outside the Committee unless authorized by the

Committee.” Boehner reasons, and the majority now agrees,

that because McDermott’s speech was otherwise limited in this

fashion by the rules, he was not afforded the First Amendment

protection recognized in Bartnicki against liability for disclosure

under the wiretap statutes of the United States and Florida. I

find this reasoning to be a non sequitur.

12

The majority relies on such cases as Zacchini v. Scripps-

Howard Broad. Co., 433 U.S. 562 (1977), for the proposition

that the Supreme Court has sustained restrictions on disclosure

of information even though the information was lawfully

obtained. Maj. Op. at 9. It is true that in Zacchini the Supreme

Court recognized the right of a performer to recover for the

economic loss caused by the uncompensated broadcast of his

performance under the state law tort of infringement of the

performer’s “right of publicity.” By no means, though, did the

Court in Zacchini hold that its conclusion that the First

Amendment did not protect the broadcaster against that cause of

action deprived it of First Amendment protection in all

circumstances and under all theories of law related to its

possible broadcast of performances. Indeed, the Zacchini Court

expressly stated:

It is evident, and there is no claim here to the contrary, that

petitioner’s state-law right of publicity would not serve to

prevent respondent from reporting the newsworthy facts

about petitioner’s act.

433 U.S. at 574 (footnote omitted). As Justice Powell noted in

dissent,

The holding today is summed up in one sentence:

“Wherever the line in particular situations is to be drawn

between media reports that are protected and those that are

not, we are quite sure that the First and Fourteenth

Amendments do not immunize the media when they

broadcast a performer’s entire act without his consent.”

Id. at 579 (Powell, J., dissenting) (quoting id. at 574-75).

Indeed, the Zacchini Court was at pains to note that “[p]etitioner

does not seek to enjoin the broadcast of his performance; he

simply wants to be paid for it.” Id. at 578.

13

In short, Zacchini is not analogous to the case at bar. It

would perhaps be analogous were we passing on the authority of

the congressional committee to enforce its rule against

McDermott in the face of a First Amendment claim, but that is

not our case.

Likewise, the majority’s reliance on Cohen v. Cowles Media

Co., 501 U.S. 663 (1991), is misplaced. That case holds no

more than that a person with whom a newspaper has made a

contract not to publish certain information may recover damages

when the defendant has breached that contract. The opinion in

Cohen, while short and narrow, nonetheless distinguishes a

contract claim from, for example, an action for libel or

defamation:

Nor is Cohen attempting to use a promissory estoppel cause

of action to avoid the strict requirements for establishing a

libel or defamation claim. . . . Cohen could not sue for

defamation because the information disclosed [his name]

was true.

Id. at 671 (internal citations and punctuation omitted). Thus, the

Court expressly distinguished the Cohen facts from Hustler

Magazine, Inc. v. Falwell, 485 U.S. 46 (1988), wherein the

Court had “held that the constitutional libel standards apply to

a claim alleging that the publication of a parody was a state-law

tort of intentional infliction of emotional distress.” Cohen, 501

U.S. at 671.

Again, the Cohen Court by no means held that the

recognition of one limitation on First Amendment protection of

a particular communication rendered the First Amendment

inapplicable to that communication for other purposes. Just so

today. It may well be that the Committee’s rule constitutes a

valid limitation on McDermott’s speech. For reasons set forth

14

below, that is by no means clear to me. It is clear that even if

that is the case, the rule cannot deprive the speech of all First

Amendment protection.

The majority further relies on Seattle Times Co. v.

Rhinehart, 467 U.S. 20 (1984). That case stands for nothing

more than the proposition that

where a protective order is entered on a showing of good

cause as required by Rule 26(c), is limited to the context of

pretrial civil discovery, and does not restrict the

dissemination of the information if gained from other

sources, it does not offend the First Amendment.

Id. at 37 (footnote omitted). That holding simply has no

application to the case before us.

Finally, the majority places strongest reliance on United

States v. Aguilar, 515 U.S. 593 (1995), a case it describes as

“closely analogous to this one.” Maj. Op. at 10. I can do little

to improve on the majority’s description of that case, which

upheld the restriction of the disclosure of a confidential wiretap

as applied to a federal district judge. Like the other cases

discussed above, that holding is not on point for the issue before

us. First, although it is true that the Court relied in part on the

“special duties of nondisclosure” associated with Aguilar’s

position as a federal judge, the Court also stressed the fact that

the statute at issue there did “not impose such a restriction [on

disclosure] generally, but only upon those who disclose wiretap

information ‘in order to obstruct, impede, or prevent’ the

interception.” United States v. Aguilar, 515 U.S. 593, 605

(1995) (quoting 18 U.S.C. § 2232(c) (current version at 18

U.S.C. § 2511(1)(c))), so at least one ground of the Aguilar

decision has no application here. Second, we are not charged

today with deciding the validity of the restriction placed on

15

McDermott’s speech by the House Committee rule. If we were,

then perhaps this would be an analogous case governed by

Aguilar. The statute at issue in Aguilar was closely connected

with the “special duty of nondisclosure” that limited the

defendant’s First Amendment rights. The Supreme Court

concluded that a “Federal District Court Judge who learned of

a confidential wiretap application from the judge who had

authorized the interception, and who wished to preserve the

integrity of the court,” Aguilar, 515 U.S. at 606, had no First

Amendment defense against a statute prohibiting “the disclosure

of information that a wiretap has been sought or authorized,” id.

at 602. It does not follow that Representative McDermott’s

violation of a House Committee rule deprives him of a First

Amendment defense to every other nondisclosure law, including

§ 2511(c) – which in this case is unrelated to whatever “special

duty of nondisclosure” McDermott may have had as a member

of Congress. Rather, we are charged with determining the

constitutionality of applying § 2511 in circumstances directly

paralleling those considered by the Supreme Court in Bartnicki.

The Court in Bartnicki upheld the constitutional protection of

the possessor of information originally obtained through an

unlawful eavesdropping by another. Aguilar in no way speaks

to that question.

Again, were we considering the validity of the Committee’s

rule as applied to McDermott’s conduct, the cases relied upon

by the majority would be instructive – perhaps compelling. But

we are not. If the House Committee rules created a private right

of action – a most dubious possibility – those cases would be

instructive. But neither of those theories is before us. We are

reviewing a case governed by Bartnicki, and Bartnicki’s holding

should prevail. Under that holding, we should reverse the

decision of the district court and order this case dismissed.

16

B.

I note that the district court declined to apply Aguilar on the

theory that “it is outside the realm of the courts to construe

Congressional rules that present significant ambiguities.”

Boehner v. McDermott, 332 F. Supp. 2d 149, 162 (D.D.C.

2004). I fully agree. As the district court noted, United States

v. Rostenkowski, 59 F.3d 1291 (D.C. Cir. 1995), “permits [the

courts] to take limited judicial cognizance of the [Ethics

Committee Rules].” Boehner v. McDermott, 332 F. Supp. 2d

149, 162 (D.D.C. 2004). However, as the district court further

noted, Rostenkowski also “makes clear that it is outside the

realm of the courts to construe Congressional rules that present

significant ambiguities.” Id. (citing 59 F.3d at 1312). Again, I

fully agree. The Rostenkowski Court correctly stated, as the

district court noted, that the courts “cannot presume to interpret

[the rule]” of a House of Congress when that rule contains

ambiguity. See id. We must leave for the coordinate branch of

government the interpretation of its own rules. Committee Rule

9 states that “Committee members and staff shall not disclose

any evidence relating to an investigation to any person or

organization outside the Committee unless authorized by the

Committee.” See Maj. Op. at 11. From the face of the rule, it is

hardly unambiguous that the rule forbids disclosure of

information obtained by a member – such as McDermott – from

private citizens such as the Martins. The tape in question had

never become the possession of the Committee, although the

Martins may well have intended that it do so. Nor is it by any

means pellucid that the tape was “evidence related to an

investigation” within the meaning of the rule at the time the

Martins turned it over to McDermott. The release by

McDermott was not in violation of an unambiguous rule.

17

Neither can I subscribe to the majority’s confidence that the

Ethics Committee’s Report on McDermott’s conduct removes

all ambiguity. As the majority notes, the Committee ruled only

that “his disclosure . . . was inconsistent with the spirit of the

applicable rules and represented a failure on his part to meet his

obligations as Ranking Minority Member of the House Select

Committee on Ethics.” See Maj. Op. at 13. The very

incorporation of the phrase “inconsistent with the spirit of the

applicable rules” would seem to defeat a claim that the

Committee had determined that the rules unambiguously applied

to his conduct.

To the extent the court holds that Representative

McDermott forfeited his First Amendment protection either by

conducting himself inconsistently with the “spirit” of Rule 9 or

by violating the terms of House Rule 23—which states that “[a]

Member . . . shall adhere to the spirit and the letter of the Rules

of the House and to the rules of duly constituted committees

thereof”—its holding suffers from a separate defect. Abrogating

Representative McDermott’s First Amendment protections

because he violated the “spirit” of a rule contravenes the well-

established principle that vague restrictions on speech are

impermissible because of their chilling effect, see Reno v.

ACLU, 521 U.S. 844, 871-72 (1997), and because of “the need

to eliminate the impermissible risk of discriminatory

enforcement,” Gentile v. State Bar of Nevada, 501 U.S. 1030,

1051 (1991). Plainly, subjecting a Member of Congress to

liability for violating the “spirit” of a rule burdens political

speech in the vaguest of ways, leaving the Member to “guess at

[the] contours” of the prohibition. Id. at 1048. Nothing in

Aguilar countenances such a result.

For the reasons set forth above, I respectfully dissent.