If you were among the first people to listen to the Donald Trump grope tape, you did so on the website of the Washington Post. The Post had it first, which is interesting when you consider the tape was stored in NBC archives and was discovered by NBC personnel. And yet the Post beat NBC on the Trump tape story?
Maybe, maybe not.
Here’s an alternative theory (and, I stress, it’s just a theory): NBC leaked the tape to the Post, forgoing one of the great journalistic coups of the year. It did this because it wanted the story to be public, but it was worried that, had it aired the tape itself, it might have had legal exposure that the Post could avoid.
How so? Because NBC might have been sued by Trump for invasion of privacy (under a California statute requiring all parties to consent to the taping of a conversation) or under some sort of breach of contract theory.
The Post, on the other hand, engaged in no actionable, or even questionable, conduct to obtain the tapes, and had no contractual relationship with Trump. And NBC knew that the Post could be trusted to keep the arrangement confidential, even to the point of being held in contempt for defiance of a court order to name its source.
Although Trump could still try to sue NBC for the recording of the conversation in 2005, the potential damages from the recording alone—as distinct from the public release of the resulting tape—would be minimal. The Post, meanwhile, would have no liability: It would get the benefit of the First Amendment protection recognized in the Supreme Court’s decision in Bartnicki v. Vopper
The Bartnicki case involved a radio station’s broadcast of a taped phone conversation about a local teachers’ strike, a matter of public interest. Although the interception and taping of the conversation were illegal, the Court ruled that the First Amendment barred liability for the radio station and its source since they had broken no laws in obtaining the tape (even though they likely knew that the taping itself was against the law).
The Bartnicki ruling covers the Post’s reporting on the Trump tape since the Post’s receipt of the tape was not illegal and the tape’s contents unquestionably involved a matter of public interest: namely, candidate Trump’s fitness for the office of the POTUS.
Bottom line: The release of the Trump grope tape may be something rarely seen in the highly competitive world of national news media: a collaboration among rival news organizations acting for the public good.
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Peter Scheer is executive director of FAC. This commentary does not necessarily reflect the views of the FAC Board of Directors.