A federal judge in the Eastern District of Virginia threw out a lawsuit from three individuals who sued the Trump 2016 campaign for allegedly conspiring with Russia and WikiLeaks to hack and release Democratic National Committee emails. Two of the plaintiffs, Roy Cockrum and Eric Schoenberg, were DNC donors, and the third, Scott Comer, was a DNC staffer. All blamed the Trump campaign for their personal information being disclosed in the hacked emails. Judge Henry Hudson said that even if their allegations were true, they failed to properly state claim upon which relief could be granted.

The plaintiffs argued five causes of action. The first was based on an alleged violation of federal law–specifically 42 U.S.C. § 1985(3)–and state violations.

The judge said that the federal claim failed because Section 1985(3) is meant to be remedial for the violation of a substantive constitutional right, and doesn’t provide any rights itself. Judge Hudson also said Cockrum failed to specify any underlying right. The court said the complaint alleged a sort of First Amendment violation, but failed because there was no government actor involved.

The first three state claims were for unlawful public disclosure of private facts, one for each of the plaintiffs. After a lengthy discussion over where this disclosure legally should be deemed to have taken place, Judge Hudson said that this could not be determined based on the information in the complaint. As a result, the judge decided to apply the law of Virginia, where the lawsuit was filed. This was unfortunate for the plaintiffs, because Virginia does not recognize the kind of right to privacy that they claim.

“Because no such cause of action exists in Virginia, the Court will dismiss Plaintiffs’ claims for public disclosure of private facts without prejudice,” the judge wrote.

As for the final claim, which was brought only by Comer for intentional infliction of emotional distress, the judge said that the alleged act didn’t quite measure up. The court applied Maryland law to this claim, as that is where Comer was from and where he suffered the alleged harm. Under that state’s law, the judge said, “conduct sufficient to sustain a claim for IIED must be ‘extreme and outrageous.'” While recognizing that Comer “experienced a great deal of stress,” the judge said, ” The alleged conduct— dissemination of Plaintiff Comer’s emails involving workplace gossip and detail regarding a bout of stomach flu—is not ‘extreme and outrageous’ under any standard of measure.”

The court’s decision also started to touch on a significant issue: should the publication of the hacked emails be protected by the First Amendment? This issue has been brought up in relation to other disclosures made by WikiLeaks. Conventional wisdom has been that such publication is protected, as it has long been held that a newspaper is free to publish information they obtained legally from a third party, even if the third party obtained it illegally–provided the newspaper had no involvement in the illegal acquisition.

The Trump campaign used this as a defense, but Judge Hudson said that because motions to dismiss for failure to state a claim must be evaluated under the assumption that the allegations are true, the defense did not apply. Because the plaintiffs alleged that the campaign actively participated in a hacking-and-publishing scheme, that would mean that the First Amendment protection wouldn’t cover it.

Cockrum Suit Dismissed by on Scribd

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