The DNC Lawsuit and First Amendment Sensitivities

On April 20, the Democratic National Committee (DNC) filed suit against a host of individuals and entities related to the theft and dissemination of internal emails and computer files. Its 66-page complaint names various defendants that can be grouped into three broad categories: Russians (Russian government operatives and entities), Trump associates (Trump campaign officials and informal advisors) and WikiLeaks (the organization and its founder Julian Assange). The theories of liability range from federal statutory causes of action (racketeering, conspiracy, economic espionage, trade secrets theft, computer theft and illegal wiretaps) to state causes of action (trespass and computer crimes in D.C. and Virginia). The lawsuit accuses Assange and WikiLeaks of crimes related to publication of stolen emails, causing The Intercept’s Glenn Greenwald and Trevor Timm, the executive director of Freedom of the Press Foundation, to declare “the DNC’s suit, as it pertains to WikiLeaks, poses a grave threat to press freedom.”

Press freedom is essential to our democracy. These days, journalism is under attack by governments—authoritarian and some democratic, under strain from disrupted business models, and amid a citizen journalist revolution. The First Amendment needs to continue to be durable and effective in these tumultuous times.

Without endorsing the alarmist language of The Intercept, I agree that the courts will have to address substantial First Amendment issues as they relate to the DNC’s allegations against WikiLeaks and Assange. First Amendment precedent applied here to a platform like WikiLeaks could later serve as the basis of opinions affecting the Washington Post, Wall Street Journal, or the New York Times. Modern First Amendment doctrine is well-equipped to parse out the allegations, test strictly the DNC’s proof, and preserve press freedoms. If the court reaches First Amendment substance, provable facts will determine whether the DNC has a case against Assange and WikiLeaks, or whether they will wash out as defendants during motions practice.

The key distinction is this: The First Amendment generally bars civil or criminal liability for publication of truthful material about a matter of public concern by someone who did not obtain the information illegally. That is true even if the person who provided that information to the publisher stole it and the publisher knew they stole it. If that is all the DNC can demonstrate, the First Amendment will bar its claims. If, however, the DNC can show other facts, beyond publication and knowledge, and more like active participation in advance planning or incentivizing the DNC hack, then we are in a different ballgame. It will turn on the factual role and legal duties of the publisher.

It is well-established that, without more, the First Amendment would shield a publisher, including one of contested motives and affiliations like WikiLeaks, from liability for publishing truthful, but stolen or improperly disclosed, material that was handed to that publisher on a silver platter. That’s the Pentagon Papers, or Landmark Communications, Inc. v. Virginia (holding that the statute criminalizing the Virginia Pilot’s publication of leaked confidential material from judicial ethics proceedings violated the First Amendment). As the Supreme Court noted in Bartnicki v. Vopper, “a stranger’s illegal conduct does not suffice to remove the First Amendment shield from speech about a matter of public concern.”

Conversely, the First Amendment would not shield WikiLeaks, much less the New York Times, from criminal liability if it made a corporate decision to hack the Democratic National Committee in order to publish its contents. For example, the Fourth Circuit held that the First Amendment did not shield journalists from criminal trespass liability where the reporters faked their resumes to obtain jobs at Food Lion grocery stores. The court reasoned that the press “has no special immunity from the application of general laws.”

Where it gets murkier is in between these two extremes. For example, how would the law of conspiracy or complicity interact with a reporter-source context? Conspiracy requires a corrupt agreement to engage in criminal acts. Complicity (also called the law of aiding and abetting) focuses on aid and support rendered to a criminal perpetrator (hacker) by someone (here a publisher) who seeks to associate themselves with criminal behavior. In these contexts, the First Amendment should cast an important shadow over the construction of these inchoate crimes as applied to source and publisher. The First Amendment should require conclusive proof that criminal behavior—and not publication interests—primarily animated any agreement before conspiracy.

Similarly, liability for aiding and abetting crimes would apply if someone at a pawn shop said: “If you steal X’s antique gun, I would sell it for a handsome price.” That offer to sell furthers the incentive to steal the gun and both parties benefit from the proceeds of the criminal activity. What if the facts here are analogous but put into a publication context? Imagine it’s revealed that Assange told Russian intelligence agents: “If you steal DNC emails, I will publish them to hurt Hillary Clinton in the election.” An American publication certainly would enjoy First Amendment protection to make editorial choices designed to hurt one candidate. Like the Pentagon Papers, the First Amendment would even protect the publication of stolen information. Note that, in contrast, a pawn dealer could be charged with sale of stolen property on the basis of knowledge it is stolen. But in this hypothetical scenario, would the First Amendment shield Assange and WikiLeaks from complicity liability? The hypothetical contemplates not only WikiLeaks’ “knowledge” of stolen information, but advance knowledge coupled with a commitment that incentivizes the criminal acts. The pre-hack publication offer represents a case moving closer to the line between the First Amendment and criminality.

The First Amendment questions turn on a fact-intensive inquiry about the nexus between the criminal acts and Assange and WikiLeaks: their participation, aid, or state of mind with respect to the email heist. It is fair to note that a “fact-intensive inquiry” itself raises the specter of free expression costs to journalism. A chilling effect on First Amendment activity is a special concern in the doctrine, and the prospect of a publisher having to justify its conduct and defend its mental state in court would have a marginal deterrent effect on making the decision to print something controversial. However, that is what the doctrinal lines have long required.

So what does the DNC allege WikiLeaks and Assange to have done? Mostly, the DNC complaint repeats the allegation that WikiLeaks published material it knew had been stolen in order to maximize political damage to Clinton. The DNC describes WikiLeaks as the publisher of “leaked or stolen confidential and classified information,” and Assange as a person who “has exhibited support for the Russian government and has hosted a talk show on Russia Today (“RT”), a television propaganda outlet funded by the Russian government.” In the “Nature of the Action” section of the suit, the DNC alleges that Russian operatives “transmitted [stolen] data to Defendant WikiLeaks, whose founder, Assange, shared the defendants’ common goal of damaging the Democratic party in advance of the election.”

What is missing is a direct allegation that Assange or WikiLeaks had knowledge of the plan to steal DNC information ahead of time, or that they knowingly incentivized the criminal behavior. After the fact knowledge of the illegal provenance of the email is analogous to what reporters get with leaked documents in other contexts. The complaint edges up to it by alleging a conspiracy that includes the WikiLeaks defendants, which would require an agreement to have engaged in the illegal acts (hacking) before the crimes occurred. Most of the relevant complaint language says things like WikiLeaks “shared a common purpose” with Russia and Trump defendants, or that the hacking operation was “carried out in concert with Assange and WikiLeaks.”

Twice, the DNC alleges: “The Trump Associates, WikiLeaks and Assange directed, induced, urged, and/or encouraged Russia and the GRU to engage in this conduct and/or to provide WikiLeaks and Assange” with DNC information. That sentence is broad enough that it could contain both criminal acts (WikiLeaks directed GRU to steal information) and acts likely shielded by the First Amendment (WikiLeaks urged GRU to provide WikiLeaks with information it knew to be already stolen).

Notably, the DNC alleges “WikiLeaks and Assange have repeatedly denied that the stolen DNC material they disseminated was provided to them by Russia, and have cast doubt on whether Russia was responsible for the cyberattacks on the DNC.” The U.S. Intelligence Community has found that WikiLeaks is wrong, but even if WikiLeaks is not admitting to where it got the emails, that still falls short of an allegation it acted with knowledge or malice aforethought with respect to the hack itself. Similarly, surreptitious communications between Trump defendants and Assange or WikiLeaks do not themselves establish a nexus to the hack, which is the criminal conduct upon which all the other alleged crimes and torts rely.

Count IV merits some additional First Amendment discussion. Paragraph 183 alleges WikiLeaks and Assange “willfully and intentionally disclosed the contents” of DNC communications “knowing or having reason to know that the information was obtained through the interception of wire, oral, or electronic communication” in violation of the Wiretap Act, 18 U.S.C. § 2511 (1)(c), which prohibits the intentional disclosure of communications known to be derived of illegal wiretaps. Subsection (c) of the Wiretap Act applies to any person who “intentionally discloses, or endeavors to disclose, to any other person the contents of any wire or oral communication, knowing or having reason to know that the information was obtained through the interception of a wire or oral communication in violation of this subsection.”

The conduct as alleged would put WikiLeaks and Assange squarely within the statutory language. However, the First Amendment would likely bar liability on the basis of knowledge alone of the illegal communications seizure. Bartnicki dealt with a slightly different prior version of this provision on its way to holding that, with respect to a matter of public concern, the First Amendment distinguishes between the interceptor of the communications and its separate publisher.

While the DNC, and those whose email accounts were hacked, are justified in feeling their nonpublic communications are not “matters of public concern,” in my experience courts tend to construe that public component expansively. For example, I represented a client in a tort disclosure case against then-New York Police Commissioner Bernie Kerik for disclosing in his post-9/11 memoir that my client had served as a longtime confidential informant against Colombian cocaine cartels. Even though Kerik violated the DEA regulations designed in part to protect my client from harm, the tort action was barred by the First Amendment because, per the Eleventh Circuit, it touched on a matter of public concern. There, in the wiretap analogy, Kerik acted as both interceptor and publisher about a matter specifically kept secret for safety reasons, and still the court held the First Amendment “matter of public concern” doctrine barred the action.

I am wholly sympathetic to the DNC as a victim of an atrocious crime perpetrated by a foreign adversary. I also do not believe WikiLeaks acted in good faith. I agreed with then-CIA Director Mike Pompeo when he said it is “time to call out WikiLeaks for what it really is: a non-state, hostile intelligence service often abetted by state actors, like Russia.” I’m even open to the possibility that Assange is a full-blown Russian intelligence asset who, in fact, conspired with the Russians in advance to commit crimes against the Democratic Party. But the First Amendment will require that the DNC make that case—not just the case WikiLeaks knowingly published emails stolen by Russians from the DNC. 

About the Author(s)

Andy Wright

Senior Fellow and Founding Editor of Just Security, former Associate Counsel to the President in the White House Counsel’s Office. You can follow him on Twitter @AndyMcCanse.