Nathaniel A.G. Zelinsky will graduate from Yale Law School this month.
Many Americans might be sympathetic to the Democratic National Committee’s lawsuit against the Russian government, WikiLeaks and the Trump campaign, alleging that they conspired to hack the DNC’s servers and disseminate stolen emails during the 2016 election. After all, Moscow assaulted our democracy and should pay for it.
But Americans — and the courts — should think hard before embracing all of the DNC’s legal theories. As it applies to the Trump campaign, the case presents implications for the First Amendment and, if successful, could transform free-speech law in the United States in worrisome ways. Down the road, the DNC itself might regret prevailing on the legal claims that it advances today.
The DNC lawsuit boils down to a simple question: When may the law penalize someone who disseminates truthful but illegally acquired information about a matter of public concern? Under current First Amendment caselaw, most recently addressed in the 2001 Supreme Court decision in Bartnicki v. Vopper, the answer is almost never — unless the person who published stolen information also participated in the initial theft. This means, for example, that the First Amendment should protect the right of a journalist to publish leaked classified material. But if the journalist stole the classified material, the law can penalize the theft and subsequent publication.
The DNC claims that the Trump campaign conspired with Russia and WikiLeaks to hack the DNC and publicize embarrassing, stolen information to swing the presidential election. We know that then-Republican-candidate Donald Trump and others hyped the hacked emails to stoke controversy. We also know that members of the Trump campaign communicated with Kremlin-linked Russians and WikiLeaks. But there is no real evidence yet that anyone associated with the Trump campaign helped Moscow hack the DNC’s servers or orchestrated the cyberattack in advance. Nor is there publicly known evidence that the Trump campaign communicated with Russia before the hacks or agreed to Russia’s information theft.
As a result, under Bartnicki, the First Amendment may well protect the Trump campaign’s actions. Just as the Constitution guarantees a reporter’s right to publish the DNC hacks, so too can a political campaign take advantage of emails stolen by a third party.
However, the Supreme Court has not had the chance to definitively weigh in on the issue. As is common in First Amendment cases, the justices decided Bartnicki narrowly — limiting their ruling to the specific circumstances of the case. The journalists in Bartnicki acted passively, receiving stolen information from an anonymous source. But this may not be the case in the DNC’s lawsuit, so it is plausible that a decision might push First Amendment law toward a different result if a publisher actively cooperates after the fact with an information thief.
Consider the unintended consequences that might arise if the DNC’s lawsuit succeeds in holding the Trump campaign legally responsible for Moscow’s hacks. In the future, a journalist who closely cooperates with a leaker might also be labeled a conspirator and held liable for the leaker’s actions. Put more sharply: Under the DNC’s legal thinking, the Trump administration today could prosecute those many reporters who rely on sources leaking classified material to uncover accounts of governmental incompetence (or worse).
To be sure, as with any complex legal situation, we might be able to distinguish between journalists cooperating with leakers and candidates who collude with foreign hackers. For instance, in Bartnicki , the Supreme Court noted that the government’s ability to prosecute domestic information thieves justifies the media’s First Amendment right to print stolen information. When it comes to state- sponsored hacking, however, that equation breaks down. The government possesses far fewer means to deter or punish the hackers, thus opening the door to placing liability on downstream publishers — or so that particular theory might go. In practice, however, it would be extremely hard to draw such a fine factual and legal distinction — and the broader freedoms of the press would suffer.
The First Amendment calculus is quite different for Russia and possibly WikiLeaks, depending on the latter’s involvement from the beginning. As the information thief, Moscow and its spies forfeited any constitutional right to publish the emails they stole. But individuals with the Trump campaign, like other Americans, deserve the freedom to speak.
As more facts come to light, the Trump campaign’s legal exposure might increase, especially if the Trump campaign planned in advance for the Russians to breach the DNC’s servers. But until then, we should not confuse the Trump campaign’s constitutional rights with its civic responsibility. When Trump and his associates willingly took advantage of a foreign power’s intervention in our election, they betrayed the nation’s basic values and, in my view, rendered Trump unfit for office. To combat that problem, however, the DNC and all Americans should look to the political process, not the courts.