The recent commencement of litigation against the Trump presidential campaign by two donors to the Democratic Party and a former DNC employee raises interesting First Amendment issues. The case arises out of the publication by WikiLeaks, just as the Democratic Convention was about to begin in 2016, of thousands of e-mails written to and by the Democratic National Committee. The e-mails, breathtakingly embarrassing to the Clinton campaign, were frequently referred to by Donald Trump during the campaign and in an election decided by so few votes may well have had a significant impact. So may this case, for reasons that sweep beyond its potential political impact.

One issue in the case is of substantial legal impact. It is when, if at all, a recipient and later disseminator of stolen or otherwise wrongfully obtained documents may be held liable in litigation commenced by those who claim to have been harmed by the publication of those documents. That is what the plaintiffs in Cockrum v. Donald Trump for President, Inc. allege in the case they have filed in federal court in the Eastern District of Virginia and it is what the core of the motion to dismiss just filed by the Trump campaign addresses.

The case is not the first in which such issues have arisen. It is true, as counsel for the Trump campaign assert in their motion to dismiss in Cockrum, that the Supreme Court case of Bartnicki v. Vopper, provided a good deal of First Amendment rooted protection for the recipients of newsworthy information that they then made public. But it is not irrelevant that in Bartnicki the recipient of the material in question—a recording of union leaders in a Pennsylvania city discussing by telephone using violence against members of a local school board as a way to obtain more favorable terms from the board–was a radio station that received the recording, almost literally over the transom and without any past or later relationship to the source, and then broadcast it. That is hardly identical to the facts alleged in Cockrum in which the core allegation is that confidential DNC emails were stolen by Russian intelligence which then allegedly conspired with the Trump campaign to publish the materials via WikiLeaks.

The two cases do have at least one extremely significant similarity: neither in Bartnicki nor Cockburn was the defendant alleged to have been involved in initially obtaining the materials at issue. That was central to the Supreme Court’s ruling in Bartnicki which concluded that although there was a significant state interest in preventing information from being stolen, the state must do so by punishing the “interceptor” rather than a recipient and later disseminator of the information who was “not involved in the initial illegality.” (Of course, if the Trump campaign were to have encouraged the Russians to hack or steal materials, that fact would drastically undercut any theory that the First Amendment protects the campaign.)

The Bartnicki and Cockburn cases also have at least two significant differences. One is that the Bartnicki defendants were at all times entirely independent of the person who surreptitiously made the wiretapped recording available to it while the Trump campaign is accused in Cockrum of conspiring with its alleged Russian source after the information had been hacked to make the information public. The other is that the entirety of the wiretapped recording in Bartnicki was of undoubted public interest while some portions of the purloined DNC documents had a special claim to being of no sustainable public interest while inflicting substantial potential privacy harm—including social security numbers sent to the DNC which WikiLeaks, as it has repeatedly chosen to do, decided to make public.

If the Trump campaign should prevail in the case, it would not necessarily follow that WikiLeaks would receive substantially greater protection in the future from the ruling. In the case, the Trump campaign emphasizes that there is no claim that it was involved in planning the hacking but simply working with the Russians thereafter. Suppose, though, that the reality was that WikiLeaks itself had discussed with Russian authorities before the hacking how they would disseminate the information obtained so as best to embarrass the Clinton campaign. It is not a bizarre bit of conjecture. In that circumstance, there would be no First Amendment protection for WikiLeaks, just as there would be none if the campaign had done so.

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