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Journalists Heap Abuse on the First Amendment August 19, 2006

Posted by federalist in Regulation, Social Politics.

Amendment I: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances. 

Perhaps no amendment in the Bill of Rights has been more abused than the first.  Today Leftists imagine that this amendment enshrines:

  1. Some sort of formal “Separation of Church and State”
  2. An obligation for Librarians to provide the Public unfettered access to pornography, and to keep lending records from government intelligence efforts.
  3. A blanket immunity for “the Press” to break any law in the course of obtaining or publishing information it believes is in the public interest.

Theodore Boutrous argues in defense of this third point today, claiming that a panel of the D.C. Circuit erred in upholding a judgment in Boehner v. McDermott.

[T]he D.C. Circuit has made a ruling in this dispute that, if it stands, will blow a hole through the First Amendment.

The strange case of Boehner v. McDermott began with a conference call between GOP leaders in December 1996, to decide how to deal with the ethics charges against then-Speaker Newt Gingrich. Rep. (now House Majority Leader) John Boehner participated by cell phone.

A Florida couple intercepted the call on a police scanner and taped it, in violation of federal wiretapping laws. They gave a copy of the tape to Jim McDermott, a Democratic member of the House ethics committee, who gave it to the press, which widely reported on it. Mr. Boehner sued, claiming that Mr. McDermott had invaded his right to privacy and violated federal wiretapping laws.

Strangely, the Supreme Court seems to agree with McDermott:

A few years later, as Mr. Boehner’s lawsuit progressed, the Supreme Court decided in Bartnicki v. Vopper that it would violate “the core purposes of the First Amendment” to use the wiretapping statute to punish defendants who had “lawfully” obtained and broadcast a tape of a telephone call that had been illegally recorded by someone else. Such punishment, it said, would impose “sanctions on the publication of truthful information of public concern.”

But the D.C. Circuit Panel has this right:

Since Mr. McDermott supposedly knew that the tape had been illegally recorded when he received it, the court ruled that he got it “unlawfully” and could be punished, like someone who “is guilty of receiving stolen property.”

“Truthful information of public concern” and “freedom of the press” have no claim on private property rights.  When laws cover information or conversation against eavesdropping, they are qualifying those as private property.  And the owners of that property should not lose their right to it as soon as it is passed off by a thief to some third party.  (No more than they should lose their right to a stolen television just because it is given by the thief to a journalist — even if the journalist then uses the stolen TV to watch a news event on which he will later file a report that serves the public interest.)

“Congress shall make no law … abridging the freedom of speech, or of the press.”  I don’t see how we can read into that phrase the idea that “the press” has any right not enjoyed by all citizens.  Furthermore, the Courts would do well to remember that “the press” is above all a profit-seeking enterprise.  If it is allowed special protection to violate laws — to engage in illegal searches or to publish information it knows was obtained illegally — imagine what effect that would have on the protections those laws were meant to provide.



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