"In a technology age marked by vigilante heroes like Julian Assange and Anonymous, the line between journalism and espionage has grown thin."

"[Senator Mitch] McConnell was quick to frame himself as the victim of a crime, which was to be expected. It was the guilty repositioning of a politician who has been caught being craven."

"When a marital therapy book looks promising, Mr. and Mrs. Dash buy two copies, one for each of them."

"When they’re both finished, they exchange copies to see what their partner has underlined. They never underline the same passages. It’s like a pair of photos by two different photographers, where you can’t tell that they’re of the same landscape. Two soothsayers reading the same entrails and foreseeing two entirely different fates."

A super-short fiction by RLC, written a few years ago, but long after the time when I was married to him. These days, books are bought as ebooks, so you don't have to buy 2 copies of everything, you just have to authorize 2 Kindles/iPads on the same account — which is what Meade and I do — and the husband and wife can simultaneously read the same book or — as in our case — the same 300 books that we wander around in endlessly, perhaps eventually encountering a passage that we'd underline electronically if the other hadn't already done the underlining. Are there any marital therapy books? Not unless "Lady Blue Eyes: My Life with Frank" counts. Or "Lady Chatterley's Lover." Or "The Obamas." Or — this has a self-helpish title — "How to Be Alone."

"Rules for Radicals"? Rule 13: "Pick the target, freeze it, personalize it, and polarize it." There's marriage for you!

Why was I reading that old post? Because when I read that wonderful garden club politics article out loud, I said it was like a compressed novel and Meade said it was like one of RLC's super-short fictions which you can read the best of in book form or read at his blog. The one about married couples reading marriage therapy books simultaneously is just what's at the top when you click the "fiction" tag.

I was also considering blogging "If We Could Only Understand a Pink Sock" — a propos of the fuzzy pink socks that played a central role in the news story of the week, how North Korea is about to drop a nuclear bomb somewhere Mitch McConnell's people considered quoting things Ashley Judd wrote about herself.

"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.

"Did Recording the McConnell Meeting Violate State Law?"

Orin Kerr takes a look at the Kentucky eavesdropping statute and this relevant commentary:

A conversation which is loud enough to be heard through the wall or through the heating system without the use of any device is not protected by KRS 526.020. A person who desires privacy of communication has the responsibility to take the steps necessary to insure that his conversation cannot be overheard by the ordinary ear.

Kerr comments:

This is arguably quite relevant: the McConnell campaign discussion apparently was loud enough to be overheard from outside the door; from what we can tell, it was recorded from a phone or video camera without audio amplification. So that language makes me think that the recording was probably not a crime. At the same time, the commentary is ambiguous. It could be read as merely making the obvious point that eavesdropping requires a device. That is, listening with your ears is different from recording with a microphone.

Obviously, you don't want to make a crime out of happening to hear a conversation on the other side of a door or wall. Perhaps there's something a little more wrong about stopping to listen, once you realize you can hear people talking. If you can hear through the wall when your neighbors talk, should you have an obligation not to pay attention or is it their responsibility to make sure you can't hear? Yet to record them seems to cross a moral line, I would think.

But what would you say about writing down quotes? Many times, I've sat in cafés and heard people talking, and I've jotted down quotes I've found interesting. And here's a specific example: Once we sat in a café at a table where we could not help overhearing a conversation. We recognized one participant as a famous professor and he was saying some extraordinarily foolish things. There's a certain word, that — if you knew how to pronounced it the way this professor did — you could say and crack me up in one second. I could have written down a lot of quotes that day and blogged them. Decency constrained me. But, surely, that could not be made into a crime in the United States.

ADDED: I'm musing about what we might consider morally wrong because it relates to what the statute might mean and also what the government may — if it chooses — criminalize.

AND: It seems to me that putting your ear against the wall/door is wrong in a way that pausing to listen when you hear talking through a wall/door is not. Here's a passage from David Rakoff's book "Half Empty":

Once during the day... I could hear Raul Rivas having sex in the office downstairs. I skittered around the apartment like a cockroach on a frying pan, trying not to make noise while desperately looking for a knothole in the crappy floorboards. Eventually I just lay down flat against the tile of the kitchen floor, listening. Lying flat against the tile of the kitchen floor listening to someone else have sex is essentially my early twenties in a nutshell.

Morally wrong, but how morally wrong?

Who secretly recorded the McConnell campaign?

A "longtime local Democratic operative" accuses "leaders of the Progress Kentucky super PAC" of what is, apparently, a felony.

“They were in the hallway after the, I guess after the celebration and hoopla ended, apparently these people broke for lunch and had a strategy meeting, which is, in every campaign I've been affiliated with, makes perfect sense,” says [Jacob Conway, who is on the executive committee of the Jefferson County Democratic Party]. “One of them held the elevator, the other one did the recording and they left. That was what they told to me from them directly.”

The meeting room door is next to the elevators on that floor. McConnell campaign manager Jesse Benton has told multiple media outlets the door was shut and locked on Feb. 2. But the door has a vent at the bottom and a large gap underneath....

Why was David Corn offered that secret audio of McConnell and his aides talking about how to attack Ashley Judd?

Corn, who won't reveal his source, says he doesn't know and didn't ask, but he guesses it was because he was the one who leaked the "47%" video that wrecked Romney.

Indeed, in the wake of the Romney revelation, Corn has received a mini-flood of would-be audio and video leaks about Washington figures. Some of these have looked promising, but none have become public — yet. Corn said he hasn’t been able to vet them to his satisfaction or work out terms for making them public. He has “passed” on several of the offers for a variety of reasons.

So then the question becomes: Why did Corn publish the McConnell material? He says he made sure it wasn't "faked, doctored or taken out of context," and he sought a response from McConnell, but that doesn't explain why he put effort into this material rather than all that other material in that "mini-flood" of material that now flows his way.

Corn cites "newsworthiness":

“I think voters and citizens have a tremendous right to know almost as much as possible of the elected officials who come before them and ask for their votes,” he said. “I think people can decide for themselves how outrageous [McConnell’s] behavior is, but it gives you a glimpse inside his campaign’s thinking.”

That quote doesn't explain anything at all about why this particular audio is newsworthy. It's a generic statement that would justify publishing the secret recordings of the planning sessions of every political campaign! 

There is absolutely zero particularity about why McConnell's campaign was the one Corn selected from the mini-flood of audio and video leaks that he hasn't vetted yet. One is forced to conclude that Corn wanted to get McConnell. That's a political standard, not the journalistic standard.

It's not "newsworthiness." It's partisanship.

IN THE COMMENTS: Some commenters react to this post by saying, more or less, duh, Mother Jones is partisan. They are missing the fact that the link goes to a front-page Washington Post story elevating Corn in the journalistic profession.

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!