"No one would be in trouble over this scandal if only David Corn had the news judgment to recognize a nonstory."

Says James Taranto. The distinction between this bland chat about things Ashley Judd wrote in her memoir is nothing like the explosive conversation in Bartnicki v. Vopper, the Supreme Court case that said "a stranger's illegal conduct does not suffice to remove the First Amendment shield from speech about a matter of public concern."

[M]embers of the Pennsylvania State Education Association discussed violently retaliating against school board members who were their adversaries in collective-bargaining negotiations. A quote from the tape: "If they're not gonna move for three percent, we're gonna have to go to their, their homes.... To blow off their front porches, we'll have to do some work on some of those guys...."

In Bartnicki, Justice Stevens (joined by Justices O'Connor, Kennedy, Souter, Ginsburg, and Breyer) says there's "a conflict between interests of the highest order — on the one hand, the interest in the full and free dissemination of information concerning public issues, and, on the other hand, the interest in individual privacy and, more specifically, in fostering private speech." But: "The normal method of deterring unlawful conduct is to impose an appropriate punishment on the person who engages in it." And: "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." 

The majority acknowledges the interest in privacy, but says it doesn't extend to matters of "public or general interest." Taranto opines that it's not so clear-cut that the McConnell campaign's brainstorming about attacking Judd is really a matter of "public interest" since it wasn't as interesting as the "blow off their front porches" bombshell in Bartnicki. Taranto points to the concurring opinion by Breyer (joined by O'Connor). That says:

[T]he Court does not create a "public interest" exception that swallows up the statutes' privacy-protecting general rule. Rather, it finds constitutional protection for publication of intercepted information of a special kind. Here, the speakers' legitimate privacy expectations are unusually low, and the public interest in defeating those expectations is unusually high...

So Breyer claims to see a balancing test in the majority's opinion (which he joins). He also wants it to be possible for "legislatures to respond flexibly to the challenges future technology may pose to the individual's interest in basic personal privacy." Meanwhile, in the dissenting opinion, Chief Justice Rehnquest (joined by Justices Scalia and Thomas) frets about advancing technology and "the right to be free from surreptitious eavesdropping" (which, they say, isn't going to be deterred if it's possible to "anonymously launder the interception through a third party and thereby avoid detection").

It's 12 years later, and technology has advanced much further, and after this Corn incident, every campaign should expect any and all private sessions to hit the internet. Maybe Taranto thinks you can piece together a limit on Bartnicki from the Breyer 2 and the Rehnquist 3, but I wouldn't count on it. Journalists are likely to take risks. Once there's audio, some journalist will always be the Corn.

And what difference does it make now? The real advancement in technology is that the audio can be dumped directly onto the internet. Today's eavesdroppers don't need a journalist to grant him a platform. So what is gained by penalizing the Corns of this world? I'd say we're better off getting some kind of journalistic filter, even if that filter is politically biased. There are biases all the way around in journalism. Even if we're not better off, we gain nothing worth intimidating journalists about. This material is breaking loose, one way or another.