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.