"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.

Secret recording of Mitch McConnell strategy session about how to go after Ashley Judd.

David Corn at Mother Jones has lots of audio clips and transcript, but he doesn't tell us who made the tape and gave it to him. Surveillance on a political campaign? If that's not bad, should we revise our opinion about the Watergate burglary?

Corn would like us to think he's got material that's quite nefarious, because "McConnell and his aides considered assaulting Judd for her past struggles with depression and for her religious views." But doesn't every campaign brainstorm about everything that could possibly be used? One campaign aide said:

She's clearly, this sounds extreme, but she is emotionally unbalanced. I mean it's been documented. Jesse can go in chapter and verse from her autobiography about, you know, she's suffered some suicidal tendencies. She was hospitalized for 42 days when she had a mental breakdown in the '90s.

And there's a quote of Judd's about how bright and flashy things are in America, such that when she returns home from overseas things, like "pink fuzzy socks on a rack" can make her "absolutely flip[] out" and she "can never anticipate what is going to push [her] over the edge." We're supposed to be offended that McConnell's people even considered using material like that? Hey, she kind of used "pink fuzzy socks" against America. Surely, the pink fuzzy socks can be used against her. No! Not the fuzzy socks!!!!

How about using religion? Well, it depends on what kind of material you have!

She says Christianity gives a God like a man, presented and discussed exclusively with male imagery, which legitimizes and seals male power, the intention to dominate even if that intention is nowhere visible.

Is there something bad about a campaign thinking of using and how it would use material like that? Obviously, there's some overall theme that Judd is flaky and not in synch with mainstream Kentucky. 

CNN reports:

Senate Minority Leader Mitch McConnell's re-election campaign is "working with the FBI" on how Mother Jones, a liberal magazine, obtained a recording of political aides meeting with McConnell and discussing opposition research on Ashley Judd, McConnell campaign manager Jesse Benton told CNN Tuesday....

"Obviously a recording device of some kind was placed in Senator McConnell's campaign office without consent. By whom and how that was accomplished will presumably be the subject of a criminal investigation," Benton said in a statement.

Either this kind of bugging is acceptable or it's not. I'm surprised Corn went forward with it when the material isn't even shocking. It's actually quite bland... in comparison to what I assume is batted around within all the various campaigns as they decide how to attack opponents. Can we get transcripts of all that crap? I'd love to blog it.

Suddenly, I realize why Corn may believe this material is worth printing: These are attacks on a sweet and pretty lady. Corn's decision to publish is — ironically — evidence of sexism.

ADDED: There's an update at the first link that says the tape came from "a source who wishes to remain anonymous" and:

We published the article on the tape due to its obvious newsworthiness. We were not involved in the making of the tape, but it is our understanding that the tape was not the product of any kind of bugging operation. We cannot comment beyond that, except to say that under the circumstances, our publication of the article is both legal and protected by the First Amendment.

Here's my question to Mother Jones: Do you want to encourage the activity that produced the tape? Do you endorse this activity as applied to all the politicians you love? You are profiting from this activity. Whether you are protected from legal action or not, your actions imply that you believe what you are doing is ethical and good journalism. That applies across the board, whether the intruded-upon politicians are ones you loathe or ones you love. Step up and endorse that, explicitly and clearly. I challenge you!

"Democrats Try And Fail To Catch Conservatives Cheering Ashley Judd's On-Screen Death."

"Judd supporters hoped her on-screen death would make for some viral video when played before the audience at annual conservative gathering, and promised BuzzFeed a recording of the event, however it came out..."

Incredibly lame, but "Democrats"... which "Democrats"?

But kudos to Buzzfeed for getting people to link to a story about nothing happening. Think of all the times various politicos are there, ready to catch things that can be used against the other side. All the gotchas should be massively diluted by all the times nothing happened. Let this one nothing stand as a reminder of all the nothings in the mix.