Fund Your Utopia Without Me.™

11 April 2013

On David Corn, Mother Jones, and the First Amendment


Pursuant to Ky. Rev. Stat. Ann. § 526.010:

Divulging illegally obtained information.

(1) A person is guilty of divulging illegally obtained information when he knowingly uses or divulges information obtained through eavesdropping or tampering with private communications or learned in the course of employment with a communications common carrier engaged in transmitting the message.

(2) Divulging illegally obtained information is a Class A misdemeanor.

Corn and Mother Jones do NOT have First Amendment protections, IF, in the words of Justice Breyer in his concurring opinion in Bartnicki v Vopper, 532 US 514 (2001), the following is inapplicable:

‘No one claims that they ordered, counseled, encouraged, or otherwise aided or abetted the interception, the later delivery of the tape by the interceptor to an intermediary, or the tape’s still later delivery by the intermediary to the media. And, as the Court points out, the statutes do not forbid the receipt of the tape itself. Ante, at 9. The Court adds that its holding “does not apply to punishing parties for obtaining the relevant information unlawfully.” Ante, at 17, n. 19 (emphasis added0.’

IF David Corn or Mother Jones facilitated the delivery of the tape to the magazine, neither is protected from Kentucky’s disclosure law by the First Amendment.

IF they merely received the tape, they are covered. Anything beyond that and they are NOT.

'It’s unclear why Reilly and Morrison held onto the tape for so long. Kentucky law says it is a felony “to overhear, record amplify or transmit any part of a wire or oral communication of others without the consent of at least one party thereto by means of any electric, mechanical or other device...But if the conversation was audible from a hallway, it’s disputable whether recording qualifies as eavesdropping.'
- Mary Katherine Ham

This was not some short tape that they made of a brief conversation. If you read the Mother Jones transcript, it is rather lengthy.

The Kentucky statute refers to ‘overhear[ing]’, which is eavesdropping.

As for the timing, that’s easy!

Most Dems in DC and KY did NOT want Ashley Judd to run for Senate. They trashed her on and off the record for months. Many even said that she was ‘unstable.’

In the tape, McConnell and his advisers are only agreeing with what Dems were saying on and off the record. It would not help Dems to release the tape until Judd decided not to run. Now, that she isn’t running, they can use the tape to argue ‘War on Women!’

'Corn didn’t make the recording, and it doesn’t look like he was involved in any way in the events that led to the recording. I don’t see how he would be culpable under the law if all he did was receive the recording after the fact. Not making excuses for the slimy bastard, this really is a non-story and nothing but a desperate attempt to smear McConnell, but mustn’t he be involved in some way in making the recording to be culpable?'

- NotCoach on April 11, 2013 at 3:13 PM

There is a Kentucky law – a misdemeanor – to divulge conversations that were illegally recorded.

The recording of an eavesdropped conversation is a felony. Divulging it is a misdemeanor. Those that recorded the conversation are likely going to face both charges. 
Corn and Mother Jones were in on divulging the conversations. As I said, there may be specific statutes that exempts the press under the First Amendment, but the press is only shielded from prosecution if it merely received unlawfully obtained communications and published them.

I think it is highly unlikely that Corn or Mother Jones would face charges because of prosecutorial discretion, but they could depending on what role they played. We aren’t talking about ‘divulging’ the identity of a sources.

No comments: