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Buchmeyer's ruling also pressed further into the question of press rights and privacy. "It is undisputed that Elkind obtained the tape transcripts lawfully from school board records, open to the public," Buchmeyer wrote. "It is also without question that elected official Peavy's racist views on how a district heavily populated with minorities should be run is a matter of public concern to the citizens of Dallas."
Buchmeyer's ruling continued: "Protecting the statutory privacy rights of Peavy, an elected official, is not compelling enough to warrant infringement on the constitutional rights of [the Observer] to publish matters of paramount public import."
Babcock says Buchmeyer's ruling makes it clear that newspapers are protected if they truthfully report the contents of intercepted conversations, as long as the paper itself obtains the information by lawful means.
Since Peavy was an elected official, Babcock says, the paper was wholly within its rights to publish the transcript. "An elected official using the N-word is a matter of considerable public interest," Babcock says.
Morris, however, disagrees vehemently, saying the contents of Peavy's conversations should have had no bearing on the case. "Would this ruling have been the same had that telephone call been genteel and polite and had no vulgarity in it? I think not," Morris says. "What Dan Peavy said he had an absolute, unequivocal right to say...It's obvious Judge Buchmeyer got off on the content of that tape. Judge Buchmeyer found it offensive and wanted to punish somebody for it."
Morris contends that Buchmeyer went too far in his ruling and predicts it will be overturned on appeal. "In my view [the decision] constitutes a finding that federal wiretap statutes are unconstitutional as applied to the press," he says. "I think the Fifth Circuit, I think the Supreme Court, will have a real difficult time swallowing that."
Babcock disagrees. "I'd say on appeal it's solid gold. I can't imagine a court reaching any other decision under these facts," he says. "I really do feel strongly that the Observer did nothing wrong here."
Peavy says he is determined to continue his pursuit of the case. He has already hired new lawyers to handle the appeal.