In a 5-4 opinion, the U.S. Circuit Court of Appeals for the District of Columbia ruled that McDermott, a Washington Democrat, should not have given reporters access to the taped telephone call.
McDermott's offense was especially egregious since he was a senior member of the House ethics committee, the court said.
When he became a member of the ethics panel, McDermott "voluntarily accepted a duty of confidentiality that covered his receipt and handling of the ... illegal recording. He therefore had no First Amendment right to disclose the tape to the media," Judge A. Raymond Randolph wrote on behalf of the court.
The ruling upholds a previous decision ordering McDermott to pay House Minority Leader John Boehner, R-Ohio, more than $700,000 for leaking the taped conversation. The figure includes $60,000 in damages and more than $600,000 in legal costs.
Boehner was among several GOP leaders heard on the December 1996 call, which involved ethics allegations against then-House Speaker Newt Gingrich, R-Ga. Gingrich, who was heard on the call telling Boehner and others how to react to allegations, was later fined $300,000 and reprimanded by the House.
McDermott leaked the tape to The Atlanta Journal-Constitution and The New York Times, which published stories on the case in January 1997.
In a sharp dissent, Judge David B. Sentelle said that under the majority's ruling, "no one in the United States could communicate on this topic of public interest because of the defect in the chain of title," that is, the fact that the tape was illegally obtained.
"We do not believe the First Amendment permits this interdiction of public information," Sentelle wrote on behalf of himself and three other judges. Boehner called the court's ruling encouraging, and noted that the court agreed with a bipartisan report of the House ethics committee in December. "As I've said many times: when you break the law in pursuit of a political opponent, you've gone too far," Boehner said in a statement. "Members of Congress have a responsibility not only to obey the laws of our country and the rules of our institution, but also to defend the integrity of those laws and rules when they are violated." McDermott, who has 90 days to appeal the ruling to the U.S. Supreme Court, called the decision "important and unfortunate" and said it was likely to have a chilling effect on political speech. Members of Congress now must "guess at the contours" of where free speech is prohibited, McDermott said. A three-judge panel of the U.S. Circuit Court of Appeals for the District of Columbia ruled against McDermott last year. The 2-1 opinion upheld a lower court ruling that McDermott had violated Boehner's rights. The full nine-member appeals court later vacated the ruling and heard arguments in the case last fall and again in January. Lawyers for 18 news organizations - including major television networks, The Associated Press, The New York Times and The Washington Post - filed a brief backing McDermott last year. They said a ruling against him could hurt the media's ability to gather information on important public issues. But in its January arguments, the court focused on House rules and the obligations of ethics committee members. The ethics panel said in a report released in December that McDermott had failed to meet his obligations as a committee leader by giving reporters access to the taped call. The House panel took no further action against McDermott beyond release of its Dec. 11 report. The case is Boehner v. McDermott, 04-7203. AP-CS-05-01-07 1649EDT