Supreme Court decision may shield Mother Jones in McConnell case

There's another controversy over Mother Jones magazine, a secret tape, and a prominent Republican speaking in private. And like with its publication of Mitt Romney's infamous "47 percent" comments, Mother Jones will probably cite a Supreme Court decision in publishing the recording.

On Tuesday, Mother Jones published audio and a transcript of an 11-minute conversation in Louisville, Kentucky, on February 2, 2013. The muffled audio was allegedly made without the knowledge of the campaign committee members for Mitch McConnell, which met at their campaign headquarters to discuss tactics in the senator's upcoming re-election bid.

McConnell was in the room as the staff discussed the perceived weaknesses of actress Ashley Judd, who at the time was considering a run as a Democrat against McConnell. The tape and the transcript indicated campaign staffers were considering attaching past mental health issues involving Judd, who is a three-time rape survivor.

Judd declined to run for office, and the chance never came for the tactics to be considered.

The Washington Post's Greg Sargent, a liberal columnist, said later on Tuesday that the tactics discussed weren't unusual.

"They show the McConnell team debating the use of tactics that are nasty but not that unusual by oppo research standards," he said.

Sargent also spoke with Mother Jones writer David Corn, who broke the McConnell tape story. If the name sounds familiar, it's because he also published the Mitt Romney "47 percent" video last fall.

Corn said Mother Jones asked for comment from McConnell's Senate and campaign offices before releasing the audio, and the magazine's lawyers approved the story.

The reaction from McConnell and his staff was swift.

"We've always said the Left will stop at nothing to attack Sen. McConnell, but Watergate-style tactics to bug campaign headquarters is above and beyond," said McConnell campaign manager Jesse Benton.

McConnell accused the group Progress Kentucky of bugging his campaign office.

"As you know last month my wife's ethnicity was attacked by a left-wing group in Kentucky and then apparently they also bugged my headquarters," McConnell said. "So I think that pretty much sums up the way the political left is operating in Kentucky."

Politico reported on Tuesday that McConnell's team has swept the room for a recording device and found nothing.

Mother Jones also issued a statement that indicated how it justified releasing the audio.

"As the story makes clear, we were recently provided the tape by a source who wished to remain anonymous. We were not involved in the making of the tape, but we published a story on the tape due to its obvious newsworthiness. It is our understanding that the tape was not the product of a Watergate-style bugging operation. We cannot comment beyond that," the magazine said in a statement.

When Mother Jones faced the critics in the Romney case, some legal experts pointed to a 2001 Supreme Court ruling that could shield it from federal prosecution. In that case, the magazine also claimed it wasn't involved in videotaping Romney at a private Florida presidential fundraiser.

The case of Bartnicki vs. Vopper established that the First Amendment protected a media organization publishing information obtained from illegal wiretapping, as long as the publisher wasn't involved in the act and the information was of public interest.

Jeff Hermes, director of the Digital Media Law Project at Harvard, wrote extensively on the subject last September.

"Regardless of whether the recording was illegal, Mother Jones is likely protected by the First Amendment. The legitimate public concern over comments made by a presidential candidate would override any interest in preventing Mother Jones from disseminating this information," Hermes said about the Romney tape.

As the most powerful Republican member of the U.S. Senate, McConnell is also a public figure.

McConnell has asked the FBI to investigate the incident.

"Senator McConnell's campaign is working with the FBI and has notified the local U.S. Attorney in Louisville, per FBI request, about these recordings," said Benton. "Obviously a recording device of some kind was placed in Senator McConnell's campaign office without consent. By whom and how that was accomplished presumably will be the subject of a criminal investigation."

Kentucky has its own laws regarding privacy. It is a one-party consent state, meaning that at least one person in the room needs to consent to the recording, even if it is the person hitting the button.

McConnell's aides say about a half dozen close, long-time staffers were in the conference room at the time.

Scott Bomboy is the editor-in-chief of the National Constitution Center.