Democracy Dies in Darkness

The Volokh Conspiracy | Opinion

'Remember, it's illegal to possess' WikiLeaks Clinton emails, but 'it's different for the media,' says CNN's Chris Cuomo

By Eugene Volokh

October 17, 2016 at 1:14 PM

From Chris Cuomo on CNN:

"Also interesting is, remember, it's illegal to possess these stolen documents. It's different for the media. So everything you learn about this, you're learning from us."

Ah, isn't it lovely to be so special, so specially immune from the law? Except it's not at all different for the media. The First Amendment offers the same protection to the media as to the rest of us, including when it comes to possessing or distributing illegally obtained material (so long as you weren't involved in the original illegal hack or interception or leak). Indeed, in the 2001 Bartnicki v. Vopper decision, the Supreme Court rejected even civil liability for distributing illegally intercepted cellphone calls, and expressly refused to distinguish the media from others:

The . . . question is whether the application of these statutes [that purport to ban distributing illegally obtained material, even when one wasn't involved in the distribution,] in such circumstances violates the First Amendment. [Footnote: In answering this question, we draw no distinction between the media respondents and Yocum.]

And the Bartnicki Court cited New York Times Co. v. Sullivan, 376 U.S. 254, 265-266 (1964) — the case treated the media and non-media speakers equally, and a passage on those pages stressed the rights of "persons who do not themselves have access to publishing facilities" — and First Nat. Bank of Boston v. Bellotti, 435 U.S. 765, 777 (1978), which is a passage that stresses the rights of all speakers to speak.

Now, while knowingly possessing tangible stolen property would often be a crime for both the media and others, possessing copies of illegally leaked materials is generally not treated the same way. See Pearson v. Dodd, 410 F.2d 701 (D.C. Cir. 1969). But in any event, remember that, whatever First Amendment rules may apply, the media has no more First Amendment rights than the rest of us.

See Jacob Gershman (Wall Street Journal Law Blog) for more.

Watch more!
The Post’s Matt Zapotosky explains how a State Department official tried to pressure the FBI into changing the classification of an email from Hillary Clinton’s server. (Bastien Inzaurralde/The Washington Post)

Eugene Volokh teaches free speech law, religious freedom law, church-state relations law, a First Amendment Amicus Brief Clinic, and an intensive editing workshop at UCLA School of Law, where he has also often taught copyright law, criminal law, tort law, and a seminar on firearms regulation policy.

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