WASHINGTON -- As a senior member of the House Ethics Committee in 1996, Rep. Jim McDermott, D-Wash., was duty bound to protect sensitive information, much like a judge or an Internal Revenue Service agent, the lawyer for Rep. John Boehner told a federal appeals court Thursday.

Instead, McDermott leaked to the media a tape recording obtained by a Florida couple of a telephone conversation involving Boehner, then-House Speaker Newt Gingrich and other senior Republicans who were discussing ethics allegations against Gingrich.

Michael Carvin, the lawyer for Boehner, a Republican from Ohio who today is House minority leader, told the full U.S. Court of Appeals for the District of Columbia that McDermott violated House rules by distributing the tape to The New York Times and the Atlanta Journal-Constitution and therefore should be held liable for damages.

"He had a duty not to disclose, therefore he can't claim First Amendment rights" allowing him to make the tape public, Carvin told the court. "Any third-grader would know it's absolutely improper."

The court must decide how far First Amendment protections extend and whether McDermott falls under the same obligations to protect information. The House Ethics Committee ruled in December that McDermott violated "the spirit" of House rules by passing the tape to reporters. The story about the tape was published widely in early 1997.

McDermott's lawyer, Christopher Landau, told the court Thursday that McDermott does not lose his First Amendment protections "just because you act in a way that some people say does not live up to some standard of decorum. He doesn't enter some First Amendment-free zone."

The case, which has been bouncing among various federal courts for 10 years, arrived at the full Court of Appeals when a three-judge panel of the court ruled against McDermott last March. The 2-1 opinion upheld a lower court ruling that McDermott had violated Boehner's rights.

The full appeals court later vacated the ruling and heard arguments in the case last fall. On Thursday, it heard a second round of arguments that focused more narrowly on House rules and committee members' obligations.

The case is being closely watched by news media organizations, which have come to McDermott's defense.

Lawyers for 18 news organizations -- including ABC, NBC, CBS, CNN, The Associated Press, The New York Times and The Washington Post -- have filed a brief backing McDermott in the civil case, arguing that a ruling against McDermott could chill the news media's ability to collect and disperse information.

McDermott attended the 40-minute court hearing Thursday; Boehner did not. McDermott declined to comment on the case.

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