Democratic National Committee v. Russian Federation, et al, No. 18-cv-3501 (JGK) (S.D.N.Y. July 30, 2019).
There are few — if any — freedoms more deeply cherished in the United States than that of the press to publish, as the New York Times has avowed since 1897, “All the News That’s Fit to Print.” In matters of public interest, unless a publisher has knowingly participated in theft of information, no criminal or civil liability may attach. To hold otherwise, the Supreme Court has held, would be an unconstitutional prior restraint upon the press. This is so, the Court has held, even if the publisher is aware that the material provided to it was not come by honestly. Bartnicki v Vopper, 532 U.S. 514 (2001); The Florida Star v. B.J.F., 491 U.S. 524 (1989); Smith v. Daily Mail Publishing Company., 443 U.S. 97 (1979); New York Times Company v. United States United States v. Washington Post Company, 403 U.S. 713 (1971)
Settled law in unsettling times. The recent reiteration of these principles by the United States District Court for the Southern District of New York was occasioned by a suit by the Democratic National Committee (DNC) against Donald J. Trump For President, Inc. ; Donald J. Trump, Jr.; Paul J. Manafort, Jr.; Jared C. Kushner; George Papadopoulos; and Richard W. Gates, III; Roger J. Stone, Jr.; the Russian Federation; Aras Iskenerovich Agalarov; Emin Araz Agalarov; Joseph Mifsud; WikiLeaks; and Julian Assange.
The DNC alleged, and the court on motion to dismiss assumed to be true, that the Russian Federation hacked into the computers of the DNC, siphoned substantial numbers of significant documents. The Russian Federation next engaged in a minuet with the Trump campaign and its various principals as well as with Wikileaks and Assange, which resulted in disclosures of the DNC’s theretofore private information.
The DNC alleged that the Trump campaign welcomed and was benefited by the Russian Federation’s actions and that publication of DNC’s stolen information was unlawful.
The Southern District of New York rejected the DNC’s contentions because the Russian Federation, as sovereign, cannot be sued in the United States courts by private entities, because the First Amendment protects publishers of unlawfully obtained information, and because the defendants could not be civilly liable for conspiracy, if one were found to exist, to achieve the lawful end of the election of a presidential candidate.
The court observed that the Supreme Court has been plain in its view that “state action to punish the publication of truthful information seldom can satisfy constitutional standards.” Smith v. Daily Mail Publishing Co.,, 443 U.S. 97, 102 (1979). (Opinion, p. 33-34). The law distinguishes the publication of stolen information from the act of theft. Bartnicki v Vopper, 532 U.S. 514 (2001) (Opinion, p. 34) .
The federal court was aided in its determination by amicus submissions by The Knight First Amendment Institute at Columbia University, the Reporters Committee for Freedom of the Press, and the American Civil Liberties Union.
The upshot: getting to the truth may involve some discomfort, and may not always be pristine. Leaving aside for a moment the catnip of campaign hi-jinx, it may strike some as far from reasonable to extend the insulation afforded by the First Amendment as far as it has been here, and perhaps as far as it has been historically. Others would argue that the occasional publication of tainted information is but a small price to pay to ensure the continuous flow of information about matters of public concern that is held to be central to a free society.
The future. Whether appeal will ensue is not known at this writing.
Source Material. The opinion of the Southern District of New York, the principal Supreme Court cases relied upon, and the amicus submission presented to the court are provided below.
Democratic Nat’l Comm. v. Russian Fed’n (S.D. N.Y., 2019)
Bartnicki v Vopper, 532 U.S. 514 (2001)
The Florida Star v. B.J.F., 491 U.S. 524 (1989)
Smith v. Daily Mail Pub. Co.. 443 U.S. 97 (1979)
DNC v. Russian Federation et al Amici Curaie Brief
Just Lawful 