Boehner v. McDermott

John and Alice Martin used a police scanner to record a conference call between influential Republican politicians, including Speaker of the House Newt Gingrich. The Martins could access the call because Representative John Boehner (plaintiff) joined the conversation from Florida using his cell phone. The recording captured a discussion about how to handle the upcoming announcement from the House Ethics Committee (Ethics Committee) about Gingrich’s agreement to accept a fine and reprimand as part of an Ethics Committee investigation. The Martins gave the recording in a sealed envelope to Representative James McDermott (defendant), a Democrat on the Ethics Committee. During a House recess, McDermott unsealed the envelope and listened to the recording. McDermott called reporters from two prominent newspapers, who came to his office, listened to the tapes, and made recordings for themselves to use in news articles. The tape’s content was newsworthy because it suggested Gingrich had gone against his agreement with the Ethics Committee. After the Martins identified McDermott as the representative to whom they gave the tape in a press conference, McDermott resigned from his position on the Ethics Committee. All Ethics Committee members were subject to a rule forbidding the disclosure to outside parties of any evidence related to an ethics investigation. McDermott agreed that punishment under the Ethics Committee rule did not offend his First Amendment rights. Boehner sued McDermott in federal court. The district court held that McDermott violated 18 U.S.C. § 2511(1)(c), a law criminalizing the intentional disclosure of illegally intercepted communication that the discloser had reason to know was illegally acquired. McDermott appealed.