How the First Amendment Shield for Christopher Steele Can Protect Russians Too

A federal district court judge dismissed the defamation case against Christopher Steele filed by three Russian nationals implicated in the so-called Steele Dossier. While the case did not resolve the ultimate truth of the Dossier’s reports, the order by Judge Anthony Epstein does represent a judicial assessment of evidence of Steele’s state of mind, holding that the plaintiffs failed to demonstrate Steele acted in bad faith. In that respect, the ruling stands in stark contrast to some rhetoric by President Donald Trump and his defenders about Steele’s motives. It also contains reasoning that could potentially raise some First Amendment complications should Special Counsel Robert Mueller ever be able to proceed with prosecution of Russian nationals for election interference.

The plaintiffs in the case are three Russian billionaires—Mikhail Fridman, Petr Aven, and German Khan—who are insiders of Alfa Bank entities. They sued Steele and his company, Orbis Business Intelligence for libel, a false and defamatory statement in written form. Specifically at issue was a two-page document entitled “RUSSIA/US PRESIDENTIAL ELECTION: KREMLIN-ALPHA GROUP CO-OPERATION.” It characterized a close and advisory relationship between Alfa plaintiffs, called “oligarchs” in the Dossier, and Russian President Vladimir Putin. Steele then shared that document with various parties.

To prove defamation in D.C., a plaintiff must show (1) the defendant made a false and defamatory statement about the plaintiff, (2) that the defendant published the statement without privilege to a third party, (3) that the defendant’s fault in publishing the statement met the requisite standard (here, as discussed next, “actual malice”), and (4) the harms caused.

Under the doctrine established in New York Times v. Sullivan, the First Amendment requires that a plaintiff prove the speaker made the false and defamatory statement with so-called actual malice (a very high standard) if either the topic is a matter of public interest or the person who is the subject of the statement is a public figure for purposes of the topic discussed. It is difficult for plaintiffs to meet that burden.

Absence of Evidence of Steele’s ‘Actual Malice’

Judge Epstein ruled that the statements about Alfa Bank in the Dossier touched on matters of public interest, and that the plaintiffs were limited-purpose public figures with respect to the topic. As such, the trio needed to demonstrate by “clear and convincing evidence” that Steele acted with actual malice in compiling the Dossier and sharing it with law enforcement, reporters, or other third parties.

So what is “actual malice”? The legal test jurors must use to determine actual malice is whether the “statement was made … with knowledge that it was false or with reckless disregard of whether it was false or not.” Here, the court found the plaintiffs failed to produce sufficient evidence of actual malice to reach a jury at all. The plaintiffs had argued that Steele and his company lacked support to imply that plaintiffs “cooperated” in Russian interference in the U.S. election. While the court recognized that such an implication could be damaging to their reputation, the court stated that the plaintiffs “do not offer any evidence that Defendants knew, or recklessly disregarded substantial information” and that the defendants’ “failure to include supporting facts does not support a reasonable inference by clear and convincing evidence that Defendants knew the statements were false or acted in reckless disregard of their falsity.” What’s more, the court cited Steele’s public estimation that “between 10 and 30 percent of his ‘raw intelligence’ would ultimately prove inaccurate” to observe “a belief that most, if not almost all, of the information would ultimately prove accurate is hard to square with actual malice.”

Availability of First Amendment Defenses to Non-U.S. Nationals

One of the threshold arguments the Russian plaintiffs made was that Steele is not entitled to First Amendment protection as a foreign national. Or, more accurately, they argued Steele was not entitled to the benefits of Washington, D.C.’s Anti-SLAPP (Strategic Lawsuit Against Public Participation) Act designed to further First Amendment interests by protecting political debate from undue litigation risk. The anti-SLAPP provision was the vehicle Steele used to force the plaintiffs’ to produce evidence sufficient to reach a jury at a very early stage of the process. Judge Epstein rejected the plaintiffs’ attempt to deny Steele of these protections. He ruled: “Advocacy on issues of public interest has the capacity to inform public debate, and thereby furthers the purposes of the First Amendment, regardless of the citizenship or residency of the speakers.” Further, the judge noted he was unaware of any case holding that First Amendment defamation defenses depend on the defendant’s status as an American citizen.

I am curious what effect, if any, a holding that foreign nationals may raise First Amendment defenses might have in Special Counsel Mueller’s prosecution of Russian nationals or other foreign entities for efforts to influence the 2016 presidential election. Take, for example, the indictmentof the Internet Research Agency and other foreign individuals and entities. On one hand, patently fraudulent behavior, like identity theft, does not lend itself to First Amendment defenses. Russians’ cloaking social media identities by fraud and deceit would likely defeat any First Amendment argument.

However, to the extent that the theory of criminal liability rests on the divisive and toxic political nature of the Russian’s active-measure messages, one could see a foreign defendant citing Judge Epstein’s ruling as the basis to assert a privilege to engage in American political discourse. Similarly, anonymous political noms de guerregenerated by Russians in anonymity might look more like more conventional communications protected by the First Amendment. There is a long tradition of political monikers in American politics – look no further than the Federalist Papers.

Further, the First Amendment logic could frustrate potential Russian collusion prosecutions. Imagine a prosecution of a Trump campaign associate for aiding and abetting political contributions made by a foreign national in violation of federal campaign finance statutes. Then, evaluate that charge against some of the other First Amendment precedent complications previously raised by Rick Hasen, including the Supreme Court’s inclination to treat money in political campaigns as a form of speech. If the Russian nationals—like Steele—enjoy First Amendment protections for political speech, it could complicate prosecution of Trump campaign associates. However, as Hasen points out, the Supreme Court affirmed the validity of the law barring foreign nationals from expenditures expressly advocating for a federal candidate because the government has a compelling interest “in limiting the participation of foreign citizens’ activities of American democratic self-government.” But what about when it is not express advocacy but rather a dump of lawfully collected opposition research like the Steele Dossier or a flurry of toxic social media messages about #BlackLivesMatter? If the First Amendment protects that kind of activity by a Russian national, then there could be no aiding and abetting liability. No underlying crime, no derivative criminal complicity charge.

I am not endorsing these arguments as valid, but rather I’m raising the possibility that Judge Epstein’s holding could become a path for First Amendment litigation if those prosecutions ever move forward.

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In sum, while this ruling came amid an avalanche of other news, it is worth deeper consideration. A federal court has now ruled that at least one group of people cast in a negative light in the Dossier cannot provide proof Steele acted in bad faith. Steele’s success in getting this libel suit dismissed represents a partial, but not total, vindication. The larger lesson of the court’s ruling however may only be seen down the line. Judge Epstein’s reasoning may have First Amendment implications for other aspects of the Russian criminal interference prosecutions. 

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.