By Jim Schutze
By Rachel Watts
By Lauren Drewes Daniels
By Anna Merlan
By Lee Escobedo
By Eric Nicholson
The sticky wicket here is that the law actually changed just a month and a half before Riggs first drove to Harman's house to hear his tapes of then-Dallas school board member Peavy. Previously, the wiretap law had not covered cordless phones, because there were no cordless phones when the law was written.
In October 1994, the law was amended to make it illegal for a third person to listen to and tape a wireless or cordless phone conversation without the knowledge of the people talking.
Harman told Riggs a great story. He said he had overheard Dan Peavy talking to people about all kinds of kickback schemes involving multimillion-dollar insurance contracts at the Dallas Independent School District. Peavy was chairman of the school board's insurance committee. Speaking in the privacy of his bedroom, Peavy peppered his conversation with racial epithets. Harman told Riggs he had been assured the tapes were legal.
What reporter could resist? Talk about a bird on the ground. Riggs, according to the court's opinion, took one of Harman's tapes with him that day but also gave Harman instructions on how to do the taping in the future. He told him not to turn the tape machine off and on during a conversation but just to let it run from beginning to end.
According to the opinion, Riggs eventually asked his superiors at Channel 8 if Harman was right about the legality of taping Peavy's calls.
Here is where things get smelly and where the overall culture and attitude of the corporation seem to come into play. According to the court, Watler, Belo's lawyer, told them wrong. He said the tapes were legal. He screwed up. He obviously didn't know the wiretap law had been amended.
Bad mistake. Who hasn't made a bad mistake? We're human.
Weeks later, Riggs hears from friends in law enforcement that cordless phone interceptions are now illegal. Riggs goes back to Belo. He tells them Watler must be wrong. Belo tells Watler to check. He does. He finds out he's wrong.
Watler comes back to Belo, according to the court, and tells them he screwed up. The tapes are illegal. Taking part in taping Peavy is a crime.
But Watler tells Belo that it's not really a problem, because the First Amendment "trumps" the wiretap act. In other words, there was no real screw-up. Everything's OK, because the First Amendment will exempt Riggs and Belo from the wiretap act.
Riggs and his assistant take most, but not all, of their tapes and transcripts back to Harman, but they continue to pursue leads they garnered from the tapes.
Wow. I have been privileged to work with really aggressive First Amendment lawyers whose whole thrust was to figure out how to get the story in the paper. Legally. But, in my poor layman's opinion, this seems like achingly thin ice. I have never heard a First Amendment lawyer say that reporters enjoy a special status which would allow them to break a law that has nothing to do with speech.
Another horribly bad-smelling piece of business happens at this juncture. After Riggs has learned that the Harman tapes are illegal, he starts secretly peddling the story to the ATF and the Dallas police, where he has connections, according to the opinion.
Dan Peavy tells me now he thinks he knows exactly why Riggs and Belo snitched on him. "They thought I would be in jail so far I would never be able to fight back," he says.
But Peavy beat the case. In fact, the only juror I have ever seen interviewed told reporters that the jury thought Peavy was a great guy.
The Fifth Circuit takes Belo's other big defense--that reporters are protected from wiretap charges by the First Amendment--and pretty much stomps it in a mud-hole.
And think about it. If wiretap material could be effectively laundered by handing it off to a reporter, thereby cloaking it after the fact in the First Amendment, nothing anybody ever said would be safe.
What distinguishes this case from two other similar cases elsewhere in the country is that this is the only one in which the person who made use of the content, Riggs, was also involved in the taping (giving Harman instructions). Belo knew all that. But somebody made a decision to keep walking this baby way out onto the ice anyway. I'm not covering for Riggs, whom I don't know well personally, but the other thing I can tell you from experience is that this kind of decision is not made by a reporter.
Dan Peavy went through hell over this. A federal jury ruled he wasn't guilty of a crime. Now the appeals court is saying his primary accusers, Riggs and Belo, may have been. I'm sure if I were Peavy, I'd gloat. In fact, a little gloating seems like poor recompense.
Editor's note: In 1995, theDallas Observer published a transcript of one conversation intercepted from Peavy's telephone in which he made blatantly racist remarks about blacks at DISD. Peavy sued theObserver for publishing the transcript, but that case was dismissed because theObserver played no role in making the tape of the conversation and obtained the transcript legally from DISD.