Taping Newt, Good; Taping Monica, Bad!
carolyn By Carolyn Gargaro
Rightgrrl Co-Founder
August 1, 1999
Published in the South Jersey Courier Post, August 10, 1999
Linda Tripp has been indicted for taping her phone conversations with Monica Lewinsky. So what ever happened regarding Newt Gingrich's illegally intercepted and recorded cell phone conversation?

Think back to 1996, when Newt Gingrich was Speaker of the House. On December 21st of that year, a Florida couple, John and Alice Martin, were going Christmas shopping, and "just happened" to have a scanner and tape recorder in the car with them. They claimed to have "accidentally" monitored the cell-phone conversation of Rep. John Boehner, R-Ohio, as he spoke from his car in a conference call with several other key Republicans, including Gingrich. They just "happened" to record it "for history."

I'm sure it's common for people to accidentally intercept and tape private cell phone conversations while going Christmas shopping. Happens to me all the time.

The Martins then turned the tape over to Washington Democrat Jim McDermott, a member of the House Ethics Committee, which was about to rule on Gingrich's ethics violations. McDermott, in turn gave the tape to the New York Times and other newspapers. The New York Times then printed a transcript of the call's participants discussing how Gingrich should respond to the Ethics Committee.

Of course, it's just a "coincidence" that the Martins are active in Florida Democratic politics, just as it was a "coincidence" that they gave the tape to a Democrat on the Ethics Committee instead of the Independent Counsel or the Republican committee chair. Perhaps it was also an "accident" that McDermott gave the information to the press, rather than discussing the tape with his fellow committee members.

Since it is illegal to eavesdrop on cellular phone calls and disseminate the contents, the Martins eventually pleaded guilty and were fined a "whopping" $500 each. However, the court ruled that McDermott's leaking of the call's contents to the press is protected by freedom of speech. Because the recordings were a matter of "important public interest," (how this conversation was a matter of "important public interest" is a bit questionable) the First Amendment trumped the privacy rights of the call's participants. Those who staunchly defend "privacy rights" and condemn Linda Tripp for taping her own conversations to protect herself are strangely silent about releasing the contents of an illegally recorded cell-phone conversation. Let's take a look at the two cases:

1) Linda Tripp was not involved in a third-party interception of a conversation. This is a key point; Linda did not intercept her own conversation. Lewinsky essentially gave Tripp permission for Tripp to hear her words by agreeing to speak with her on the phone. Maryland law states that it is illegal to INTERCEPT and record a conversation; Tripp's taping of those words isn't the same thing as interception. One could argue that taping Lewinsky might have been "mean" (but is it as "mean" as telling your friend to lie under oath?), the law only uses the word "interception"! So in essence, Tripp didn't even break the law.

2) Linda Tripp was making the tapes for her own protection. People seem to forget that she had received threats, and was being told that if she knew what was good for her, she'd break the law and lie under oath about her knowledge of the incident between Clinton and Kathleen Wiley. Were John and Alice Martin taping the conversation for their own protection? No.

3) After making the tapes, Tripp approached law enforcement authorities in a timely manner. This point is also important because it is an exception to Maryland's interception law. Even if one believes that Tripp did still break the law by recording her own conversations after she found out about Maryland's interception laws (refer to item (1) above), there is a law enforcement exception. The items on the last tape made were so illegal that she would be allowed to make the tape - as long as she approached law enforcement authorities in a timely manner -- which she of course ultimately did. The Maryland law does allow for this exception. Did McDermott take the tapes to the committee and discuss it with them? If he was concerned about the contents of the tape and not just playing politics, wouldn't this be the appropriate action? Instead, he gave the tapes to the press.

4) Linda Tripp was also indicted for giving her own tape to Newsweek. Now, if it's considered "free speech" to give Gingrich's tape to the press, why isn't it free speech for Tripp to give her own tape to Newsweek?

How interesting! So, it's acceptable to be involved in a third-party interception of someone's private cell phone conversation, tape it, and give it to a congressman whose dislike for the key call participant is rather obvious. It's also okay for that congressman to give that tape to the press. However, if one tapes her own telephone conversations for protection because she has been threatened and told that she must break the law, well, that's just wrong! Very interesting indeed.

Perhaps if it had been a Republican couple who "accidentally" taped Richard Gephardt's conversation, and then turned the tape over to a Republican politician, who in turn gave it to the press, people might pay a little more attention.

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This article copyright © 1999 by Carolyn Gargaro and may not be reproduced in any form without the express written consent of its author. All rights reserved.