Reprinted from cpj.org
In 1993, WILK radio host Frederick Vopper broadcast a conversation intercepted by an illegal wiretap and sent anonymously to the Pennsylvania radio station, in which two teachers union officials discussed violent negotiating tactics. The officials sued Vopper, arguing that he should be liable for the illegal wiretap that captured their comments. But the Supreme Court disagreed. As Justice John Paul Stevens wrote in the Bartnicki v. Vopper decision, "A stranger's illegal conduct does not suffice to remove the First Amendment shield from speech about a matter of public concern."
In April, the Democratic National Committee, the governing body of the Democratic Party, announcedthat it was suing WikiLeaks and Julian Assange--along with a number of other defendants, including the Trump campaign and Russian operatives--for their alleged involvement in the theft and dissemination of DNC computer files during the 2016 election. On its surface, the DNC's argument seems to fly in the face of the Supreme Court's precedent in Bartnicki v. Vopper that publishers are not responsible for the illegal acts of their sources. It also goes against press freedom precedents going back to the Pentagon Papers and contains arguments that could make it more difficult for reporters to do their jobs or that foreign governments could use against U.S. journalists working abroad, First Amendment experts told CPJ.
"I'm unhappy that there's even an allegation that you could be held liable for publishing leaked information that you didn't have anything to do with obtaining," said George Freeman, a former lawyer for The New York Times and executive director of the independent advisory group, Media Law Resource Center. James Goodale, the First Amendment lawyer who defended The New York Times in the 1971 Pentagon Papers case, said that the suit appeared to be the first time WikiLeaks has been sued for a journalistic function. Goodale, a senior adviser to CPJ and former board chair, added that the DNC had "paid zero attention to the First Amendment ramifications of their suit."
The DNC argues that WikiLeaks was involved in a conspiracy, rendering the normally protected act of publicizing documents tantamount to the criminal act of hacking the servers. Its suit contends that WikiLeaks and Assange violated laws that ban disseminating trade secrets and forbid wiretapping. To tie WikiLeaks and Assange to the underlying illegal act of hacking, the DNC cited the federal Racketeer Influenced and Corrupt Organizations Act, a law originally intended to tie street-level criminals to gang leaders.
President Trump has denied that his campaign was involved in such a conspiracy, and Russian President Vladimir Putin denied the hackers acted on behalf of his government.
The case raises a number of important press freedom questions: Where should courts draw the line between source-building and "conspiring"? What activities could implicate a journalist in a source's illegal behavior? Would putting a SecureDrop link soliciting leaks count as illegal conspiracy? And if a reporter asked for documents on an individual while indicating that they think the person deserves to be exposed, would that count as shared motive, or is the only truly protected activity passively receiving leaks, like radio host Vopper?
"There is a spectrum that run on one side from someone dropping a plain manila envelope, to the other extreme where you actually steal the documents yourself," said David McCraw, deputy general counsel for The New York Times. "The line in the middle is still being determined by the courts."
David Bralow, an attorney with The Intercept, added, "It's hard to see many of WikiLeaks' activities as being different than other news organizations' actions when it receives important information, talks to sources and decides what to publish. The First Amendment protects all speakers, not simply a special class of speaker."
The DNC lawsuit claims that Assange harbored animosity toward Clinton, was in touch with the Trump campaign, and timed the release of his documents to harm the Clinton campaign. But as McCraw said, a publisher "having a point of view," doesn't mean they aren't engaged in "journalistic activity." And coordinating publication time doesn't necessarily establish an "agent-principal" relationship between the hackers who broke the law and the publishers.
Xochitl Hinojosa, a DNC spokesperson, told CPJ, "This lawsuit is about an illegal foreign intelligence operation against the United States by a hostile adversary that found active and willing partners in the Trump campaign, as well as WikiLeaks, which acted at the behest of the Russians." Hinojosa added, "We will present these arguments further in court."
WikiLeaks did not respond to CPJ's emailed request for comment.
Marcy Wheeler, an independent national security reporter who has reviewed the DNC complaint, said the legal theory behind it could be applied to other leaks such as the Panama Papers and the Paradise Papers--internal documents that were likely obtained illegally from law firms and financial institutions, and then passed to the press. Similar legal cases have already been brought in Europe. One of the law firms named in the Paradise Papers case sued the BBC and the Guardian, the BBC reported.
The DNC's argument, Wheeler said, could be replicated by the Department of Justice to target an outlet like The Intercept. "If this precedent is out there, the government would happily describe The Intercept as a co-conspirator," in the Winners or Albury leaks, she told CPJ, referring to former military contractor Reality Winners, and former FBI agent Terry Albury, whom several news outlets speculated were the sources for major leak investigations revealed by The Intercept.
The Department of Justice has also previously tried to implicate reporters in leak instigations, including in 2010, when it named Fox News reporter James Rosen in a search warrant as a "co-conspirator" and surveilled him.
This is why CPJ has long maintained that WikiLeaks and Assange should not be prosecuted under the Espionage Act for publishing classified documents procured by someone else. WikiLeaks, however, has not always been a responsible steward of its materials. In 2011, the organization released unredacted diplomatic cables that endangered the life of the Ethiopian reporter Argaw Ashine. And in general, WikiLeak's practice of publicizing large data dumps without probing the context or motivations of leakers can render it vulnerable to manipulation, as CPJ Executive Director Joel Simon has written. Still, as CPJ wrote in a letter to the Obama administration in 2010, arresting Assange would set dangerous precedent for publishers everywhere.