The Trump Campaign’s First Amendment Fallacy

In July, Protect Democracy filed a federal lawsuit, Cockrum v. Donald J. Trump for President, Inc., against the Trump Campaign on behalf of three Americans who had their private information published to the world in violation of state privacy law and federal civil rights law. On October 8, the Campaign filed a motion to dismiss the case. The Campaign’s primary argument is that the First Amendment protects its right to offer policy concessions to a hostile foreign government in exchange for the disclosure of emails stolen from the DNC that contained the plaintiffs’ private information. In making that argument, the Campaign casts itself as a journalist reporting information of critical importance to the public. That comparison is specious. While the First Amendment protects journalists who publish newsworthy information, a political campaign has no constitutional right to conspire with a hostile foreign power to disseminate the indisputably private, personal information of its opponent’s supporters.

Q. How does the Trump legal team’s First Amendment argument relate to the Mueller investigation?

A. The Campaign’s First Amendment argument is a preview of how the President and his allies might respond to the findings of the Mueller investigation. Trump and his associates initially— and falsely—denied the Russians sought to interfere in the election.. Then they denied—again, falsely—that they had any contact with Russians. As more and more facts have been revealed about the Campaign’s relationship with the Russian government—it is now clear that there have been more than 80 contacts (that we know of) between the Trump Campaign and Russian agents—Trump and his legal team are trying to shift the goalposts from “we didn’t have contact with Russia” to “we didn’t collude with Russia” to “collusion isn’t a crime.” (We explained why conspiracy, the legally correct term for “collusion,” with a foreign government is a crime here. Brookings has a new paper expanding on that here.) This latest argument—that the First Amendment protects a campaign’s ability to conspire with a foreign government to obtain something of value in exchange for policy concessions—is another step in that evolution. The Campaign’s legal team contends that even if it conspired with a foreign government, but that doing so was protected by the Constitution. As we explain below, they are wrong.

Q. Does the First Amendment apply to the Trump Campaign conspiring with the Russian regime and WIkiLeaks to dump the private information in stolen emails?

A. No, it doesn’t. The First Amendment protects the publication of truthful, newsworthy information. There is no doubt that some of the information published on WikiLeaks was relevant to the public and received significant media coverage. But this case is not about the information that made news, such as the DNC’s relationship with the Sanders campaign. It is about the substantial amount of information released by the Trump Campaign and its co-conspirators that was private and of no legitimate interest to the public—including social security numbers, bank information, medical information, and intimate details about personal relationships. States have long had laws prohibiting the publication of this type of information, and the First Amendment is not a license to publish someone’s purely private information. As the Tenth Circuit Court of Appeals has explained, “the dissemination of non-newsworthy private facts is not protected by the First Amendment.” Gilbert v. Med. Econ. Co., 665 F.2d 305, 308 (10th Cir. 1981).

Q. But if some of the leaked information was newsworthy, doesn’t the First Amendment apply to the entire release of emails?

A. No. Courts have explained that “to properly balance freedom of the press against the right of privacy, every private fact disclosed in an otherwise truthful, newsworthy publication must have some substantial relevance to a matter of legitimate public interest.” Gilbert, 665 F.2d at 308. This rule makes perfect sense in practice. Someone who writes an article about a matter of paramount interest to the public is not entitled to include a social security number in the article (except in the exceedingly rare circumstance that the social security number itself is relevant to the public). A contrary rule would allow anyone to dump on the Internet the contents of the email account of almost anyone engaged in activity of interest to the public, because they could be confident that at least some of the information would be newsworthy.

Q. Could your case limit First Amendment protections for journalists?

A. No, the Trump Campaign can be held accountable without narrowing protections for journalists. The First Amendment will continue to protect the press because the First Amendment protects the publication of truthful, newsworthy information. A journalist who receives information that is of public interest has the constitutional right to publish that information, even if the journalist’s source obtained it through unlawful means.

Consider the ways in which the facts of this case differ from the work of journalists. Journalists publish newsworthy information—they do not publish purely private information that is of no relevance to the public, such as a social security numbers. Nor do journalists actively conspire with a hostile foreign power to secure the release of stolen emails in exchange for policy concessions—thereby violating far more than privacy laws—in order to win an election and harm U.S. citizens because of their participation in our political process.

Q. What if a journalist publishes information that she deems newsworthy, but a court disagrees? Would she then be liable?

A. Almost certainly not. Courts are appropriately reluctant to impose liability on journalists who are simply doing their job. That is why they are enormously deferential to the media’s judgment about what is newsworthy and what is not. This deference ensures that the media has “the breathing space needed . . . for the exercise of effective editorial judgment.” Virgil v. Time, Inc., 527 F.2d 1122, 1129 (9th Cir. 1975). Here, all agree that the plaintiffs’ private information was of no relevance to the public and that the defendants made no effort to determine whether this information was newsworthy.

Q. Would a journalist be liable for publishing newsworthy information that she received from a political campaign in order to harm the campaign’s opponent? 

A. No. As long as the information is newsworthy, the First Amendment protects the right to publish it, regardless of the motives of the source—or even of the journalist. This is what the Supreme Court held in Bartnicki v. Vopper, 532 U.S. 514 (2001).

Q. What if the information was stolen by hackers?

A. Again, the First Amendment would protect the journalist as long as the information is newsworthy. Of course, if the journalist participated in the hacking or paid the hackers to obtain information the journalist knew had been stolen, she could be liable for participating in the hacking. As journalists know, the First Amendment is not a license to violate generally applicable laws. But as long as the journalist was not involved in the illegal conduct, she is protected by the First Amendment.

Q. The Campaign argues that the Supreme Court’s decision in Bartnicki supports their position here. Is that right?

A. To the contrary, Bartnicki makes clear why the First Amendment does not protect the Campaign. In Bartnicki, an anonymous individual illegally intercepted and recorded a phone call and provided the recording to a journalist, who played it on the air. The Supreme Court held that the First Amendment protected the journalist because he was not involved in the illegal conduct and the information was indisputably newsworthy. The Court emphasized that its holding was “narrow” and did not necessarily apply to “other information of purely private concern.”

The information at issue in this case, such as social security numbers, was indisputably private. Furthermore, the Campaign is nothing like the innocent journalist in Bartnicki. The Campaign was engaged in an illegal conspiracy to offer policy favors in exchange for the dissemination of its stolen private information and the intimidation of its political opponents.

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