Federal Judges Order New Oral Arguments In Lawmakers' Case
A federal appeals court considering a First Amendment dispute between two congressmen has ordered an unusual second set of oral arguments before the court's full bench.
The lawsuit at issue was brought by the outgoing House majority leader, John Boehner of Ohio, against Rep. James McDermott, a Democrat of Washington, in connection with the public release in 1997 of a recorded cellular telephone conversation among Republican leaders, including the then-speaker, Newt Gingrich.
Mr. McDermott, who has acknowledged giving the tape to reporters, obtained it from a Florida couple who later pleaded guilty to recording it illegally.
Mr. Boehner's suit, filed in 1998, has made a lengthy journey through the courts. In March of this year, the D.C. Circuit Court of Appeals ruled, 2–1, that Mr. McDermott could be held liable for $60,000 in damages stemming from the disclosure and $600,000 in legal bills.
Press organizations objected vociferously to the decision. They argued that awarding damages against Mr. McDermott for disclosing a tape he had no role in making could open the floodgates to similar suits against reporters who publish information that others may have pilfered or obtained illegally.
The D.C. Circuit agreed to take up the case en banc, meaning that the full bench of the court would hear the case anew. In October, nine judges heard arguments in the matter. In an order Tuesday, the court said it would hear arguments again on January 25.
"This is really quite remarkable," one lawyer following the case said.
The court's order also told the parties to file new briefs addressing whether Mr. McDermott had a special obligation not to pass on the illicit tape under a 1995 Supreme Court decision, U.S. v. Aguilar. In that case, the court held that a federal judge was obliged not to disclose information about a secret wiretap, even after the surveillance had concluded.
Mr. Boehner's lawyer has argued that Mr. McDermott violated House rules by releasing the tape.
