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Congressman argues First Amendment governs taped phone call leak case

[JURIST] An attorney for US Rep. Jim McDermott (D-WA) argued before the US DC Circuit Court of Appeals [official website] Tuesday that the leaking of an illegally-obtained phone call to the news media should be protected by the First Amendment. In March, a three-judge panel of the court ruled against McDermott [JURIST report] for releasing the tape of a phone conversation of Rep. John Boehner, now House Majority Leader [official website], ordering him to pay Boehner $700,000 in fines. The tape was recorded over a police scanner by a couple in Florida and given to McDermott, who passed it on to the media in 1996. Members of the media are concerned that if the court upholds its previous ruling, the media will encounter great difficulty obtaining information from Washington insiders.

McDermott was found guilty [opinion text] by a three-judge panel of violating 18 USC 2511(1)(c) [statute text], but in June the Court granted his petition for an en banc rehearing in front of the entire nine-judge panel. Lawyers for ABC, NBC, CBS, the Associated Press, TIME, Newsweek, and the Washington Post among others filed an amicus curiae brief [PDF] on behalf of McDermott, arguing that the First Amendment protects him and that he should not incur liability for merely receiving tapes obtained by other parties. AP has more.

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