## Facts

- Representative John Boehner participated in a Republican leadership conference call about strategy concerning a pending House Ethics Committee matter involving Speaker Newt Gingrich.
- A Florida couple intercepted and recorded the call using a police scanner; the interception violated 18 U.S.C. § 2511(1)(a), and the couple later pled guilty.
- The couple delivered the recording to Representative James McDermott, the ranking Democrat on the House Ethics Committee, in a sealed envelope.
- McDermott opened the envelope, listened to the recording, and then invited reporters to listen and make copies, leading to publication of the call’s contents.
- Members of the House Ethics Committee were subject to a confidentiality rule barring disclosure to outsiders of evidence relating to ethics investigations; McDermott conceded discipline under that rule would not violate the First Amendment.
- Boehner sued McDermott under the federal wiretap statute’s civil remedy provisions, alleging unlawful disclosure of an illegally intercepted communication.

## Issues

1. Whether McDermott’s disclosure of the call’s contents, knowing or having reason to know the call was illegally intercepted, violated 18 U.S.C. § 2511(1)(c).
2. Whether imposing civil liability on McDermott under § 2511(1)(c) for disclosing truthful information of public concern violated the First Amendment in light of *Bartnicki v. Vopper*.
3. Whether *Bartnicki*’s First Amendment protection for disclosure of intercepted communications extends to a government official subject to confidentiality obligations who facilitates dissemination to the press.

## Decision

- The en banc D.C. Circuit affirmed summary judgment for Boehner.
- The court held McDermott violated 18 U.S.C. § 2511(1)(c) by intentionally disclosing the contents of an intercepted communication while knowing or having reason to know the interception was unlawful.
- The court held § 2511(1)(c), as applied to McDermott, did not violate the First Amendment.
- The court upheld statutory damages ($10,000), punitive damages ($50,000), and the award of attorney’s fees and costs.

## Legal Principles

- Liability under 18 U.S.C. § 2511(1)(c) attaches when a person intentionally discloses the contents of a wire, oral, or electronic communication, knowing or having reason to know it was obtained through an unlawful interception.
- *Bartnicki v. Vopper* does not establish a categorical First Amendment right for anyone who lawfully receives truthful, newsworthy information to disclose it; the scope of constitutional protection depends on context.
- First Amendment analysis may account for the recipient’s role and obligations, including confidentiality duties tied to governmental or institutional functions.
- Congress may enforce disclosure prohibitions as part of a scheme to protect privacy and deter unlawful interceptions, and such enforcement may be constitutional even when the disclosed content concerns public affairs.

## Conclusion

The en banc court held that a House member who publicized an unlawfully intercepted conference call to reporters could be held civilly liable under § 2511(1)(c) without violating the First Amendment, particularly given his knowledge of the illegal interception and his ethics-related confidentiality obligations.


Boehner v. McDermott, 484 F.3d 573 (D.C. Cir. 2007) (en banc)