In a clear defense of the First Amendment, a federal judge ruled the Democratic National Committee cannot hold WikiLeaks or its founder, Julian Assange, liable for publishing information that Russian agents were accused of stealing.
The DNC sued President Donald Trump’s campaign, the Russian Federation, Assange, and WikiLeaks on April 20, 2018, alleging the dissemination of materials “furthered the prospects” of the Trump campaign. They argued officials “welcomed” the assistance of agents allegedly working for the Russian Federation.
At the time, DNC chair Tom Perez accused WikiLeaks of helping to perpetrate a “brazen attack” on democracy. However, Judge John Koeltl in the Southern District of New York saw through the DNC lawsuit and recognized the impact it would have on press freedom.
Koeltl highlighted the case of the Pentagon Papers, where the Supreme Court held there was a “heavy presumption” against the “constitutional validity of prior restraints” (suppressing) the publication of information.
Whether or not WikiLeaks knew the materials were obtained illegally, they were protected by the First Amendment.
“The First Amendment prevents such liability in the same way it would preclude liability for press outlets that publish materials of public interest despite defects in the way the materials were obtained so long as the disseminator did not participate in any wrongdoing in obtaining the materials in the first place,” Koeltl asserted.
Acknowledging how WikiLeaks and various groups suggested this lawsuit threatened freedom of the press, Koeltl noted the DNC’s response. “This case does not threaten freedom of the press because WikiLeaks did not engage in normal journalistic practices by, for example, ‘asking foreign intelligence services to steal ‘new material’ from American targets.’”
Yet, the DNC’s own allegations were, “WikiLeaks sent GRU operatives using the screen name Guccifer 2.0 a private message, asking the operatives to ‘send any new material [stolen from the DNC] here for us to review.’”
The judge reasoned, “This was not a solicitation to steal documents but a request for material that has been stolen. Journalists are allowed to request documents that have been stolen and to publish those documents.”
An amicus brief submitted to the federal court in the Southern District of New York by the Knight First Amendment Institute, Reporters Committee for Freedom of the Press, and the ACLU highlighted several examples of public interest stories published in the past decades that were based on stolen or illegally acquired information.
Reporting on Wategate relied on anonymous sources. Activists stole files from the FBI in 1971 that exposed COINTELPRO. Big Tobacco and scandals at global finance companies were exposed through illegal methods.
“An anonymous source sent more than 2.6 terabytes of encrypted information to a German newspaper and a U.S. investigative journalism non-profit,” the groups recounted. “Known as the ‘Panama Papers,’ these internal files of a now-defunct Panamanian law firm detailed a transnational tax evasion scheme developed for wealthy clients around the world. The disclosure of the files sparked public debate and multiple proposals for legal reform.”
Koeltl recognized the public interest value of the materials that were published by WikiLeaks, as well as other media organizations during the 2016 presidential election. He especially focused on the DNC’s claim that WikiLeaks was prohibited from publishing alleged “trade secrets.”
“If WikiLeaks could be held liable for publishing documents concerning the DNC’s political, financial, and voter-engagement strategies simply because the DNC labels them ‘secret’ and trade secrets, then so could any newspaper or other media outlet. But that would impermissibly elevate a purely private privacy interest to override the First Amendment interest in the publication of matters of the highest public concern,” Koeltl declared.
He added, “The DNC’s published internal communications allowed the American electorate to look behind the curtain of one of the two major political parties in the United States during a presidential election. This type of information is plainly of the type entitled to the strongest protection that the First Amendment offers.”
“Indeed, the DNC alleges that the publication of the stolen documents was so significant that it had an impact on the course of a presidential election. The DNC’s conclusory allegations that ‘donor lists’ and ‘fundraising strategies’ were among those documents are insufficient to pierce the shield that the First Amendment provides for core political speech,” Koeltl concluded.
Within the lawsuit, the DNC never alleged that WikiLeaks agreed to participate in the theft or that it advance knowledge of plans to hack the DNC. There was no factual allegation ever made, which suggested Trump campaign officials, Assange, or WikiLeaks had known Russian Federation agents were planning to hack the DNC’s computers until after they were compromised.
“The DNC argues that the various meetings and conversations between the defendants in this case and with persons connected to the Russian government during the time that Russian GRU agents were stealing the DNC’s information show that the defendants conspired with the Russian Federation to steal and disseminate the DNC’s materials,” Koeltl mentioned. “That argument is entirely divorced from the facts actually alleged.”
Furthermore, the DNC maintained that WikiLeaks knew the materials were stolen and coordinated with Russian intelligence agents. Therefore, they should be “considered an after-the-fact conspirator for the theft based on its coordination to obtain and distribute the stolen materials.”
But the judge called it “irrelevant” whether WikiLeaks may have solicited stolen documents from Russian Agents
“A person is entitled to publish stolen documents that the publisher requested from a source so long as the publisher did not participate in the theft,” Koeltl clearly stated.
If WikiLeaks was held liable, this would render “any journalist who publishes an article based on stolen information a co-conspirator in the theft.”
Joshua Dratel, an attorney for WikiLeaks, told the Associated Press he was “very gratified with the result, which reaffirms First Amendment principles that apply to journalists across the board, whether they work for large institutions or small independent operations.”
Despite the arguments of the federal judge in defense of the First Amendment, DNC deputy communications director Adrienne Watson signaled the DNC may not back down from its lawsuit.
Watson maintained the opinion raises “serious concerns about our protections from foreign election interference and the theft of private property to advance the interests of our enemies.”
“At a time when the Trump administration and Republican leaders in Congress are ignoring warnings from the president’s own intelligence officials about foreign interference in the 2020 election, this should be of concern to anyone who cares about our democracy and the sanctity of our elections,” Watson said.
Under President Barack Obama’s administration, Democrats largely ignored or supported a grand jury investigation into WikiLeaks. Several Democratic lawmakers endorsed the prosecution of Assange.
Assange was indicted under the Espionage Act by President Donald Trump’s administration. That indictment was roundly condemned by journalists at media organizations and press freedom groups as a dangerous escalation against freedom of the press.
Because a Democratic presidential administration never really shut down the grand jury investigation, the Justice Department under Trump was able to pick up where the Obama administration left off—even if the administration had recognized it had a “New York Times problem” where it could not prosecute WikiLeaks staffers without also going after journalists at establishment media outlets.
The initial response of the DNC to the outcome of this lawsuit, as well as the fact that WikiLeaks and Assange were ever sued, shows how contempt for freedom of the press under the First Amendment is not and has never been limited to the Trump White House.