The Democratic National Committee filed a lawsuit this afternoon in a Manhattan federal court against the Russian government, the Trump campaign, and various individuals it alleges participated in the plot to hack its email servers and disseminate the contents as part of the 2016 election. The DNC also sued WikiLeaks for its role in publishing the hacked materials, though it does not allege that WikiLeaks participated in the hacking or even knew in advance about it; its sole role, according to the DNC’s lawsuit, was publishing the hacked emails.
The DNC’s suit, as it pertains to WikiLeaks, poses a grave threat to press freedom. The theory of the suit — that WikiLeaks is liable for damages it caused when it “willfully and intentionally disclosed” the DNC’s communications (paragraph 183) — would mean that any media outlet that publishes misappropriated documents or emails (exactly what media outlets quite often do) could be sued by the entity or person about which they are reporting, or even theoretically prosecuted for it, or that any media outlet releasing an internal campaign memo is guilty of “economic espionage” (paragraph 170):
It is extremely common for media outlets to publish or report on materials that are stolen, hacked, or otherwise obtained in violation of the law. In October 2016 — one month before the election — someone mailed a copy of Donald Trump’s 1995 tax returns to the New York Times, which published parts of it even though it is illegal to disclose someone’s tax returns without the taxpayer’s permission; in March 2017, MSNBC’s Rachel Maddow did the same thing with Trump’s 2005 tax returns.
In April, 2016, the Washington Post obtained and published a confidential internal memo from the Trump campaign. Media outlets constantly publish private companies’ internal documents. Just three weeks ago, BuzzFeed obtained and published a secret Facebook memo outlining the company’s internal business strategies, the contents of which were covered by most major media outlets.
Some of the most important stories in contemporary journalism have come from media outlets obtaining and publishing materials that were taken without authorization or even in violation of the law. Both the New York Times and Washington Post published thousands of pages from the top-secret Pentagon Papers after Daniel Ellsberg took them without authorization from the Pentagon — and they won the right to publish them in the U.S. Supreme Court.
The Guardian and the Washington Post won the 2014 Pulitzer Prize for Public Service for publishing and reporting on huge numbers of top-secret documents taken by Edward Snowden from the National Security Agency. The Guardian, the New York Times, and numerous papers from around the world broke multiple stories by publishing classified classified documents downloaded by Chelsea Manning without authorization and sent to WikiLeaks. In 2016, more than 100 newspapers from around the world published and reported on millions of private financial documents known as the Panama Papers, which were taken without authorization from one of the world’s biggest offshore law firms and revealed the personal finances of people around the world.
In sum, investigative journalism frequently entails media outlets receiving documents and other private information from people who have stolen them or otherwise broke the law to obtain and release them. To convert that into a legal transgression or part of an unlawful racketeering plot — as the DNC lawsuit seeks to do — is to turn a core part of journalism into something illegal.
Media figures have constantly sounded the alarm about threats to press freedom each time Donald Trump posts an insulting tweet about various media personalities. But the DNC’s lawsuit — just like the attempts of the Obama and Trump DOJs to criminalize and prosecute whistleblowing under the Espionage Act — is an actual grave threat to those press freedoms.
What the DNC is counting on is that contempt for WikiLeaks and Julian Assange is so intense in official Washington that it will drown out the obvious menace this lawsuit poses to basic press freedom, or that journalists will be afraid to object out of fear that it will look like they are siding with a despised-in-Washington organization that has been accused by Trump CIA officials (without evidence) of being “a non-state hostile intelligence service often abetted by state actors like Russia.”
But just as one should object to torture and the denial of due process for Guantánamo detainees — even if some of the people detained there are actually terrorists who have killed people — one’s personal feelings about Assange and WikiLeaks should be totally irrelevant to recognizing and sounding the alarm about how dangerous the DNC’s legal theory is.
Nor does it matter at all whether one views WikiLeaks as “real journalists” — whatever that might mean. The First Amendment’s guarantee of a free press is not just for media corporations; it is not applicable only to a select group of people called “journalists,” but rather operates to protect an activity when engaged in by anyone. It protects everyone who wishes to publish information that informs the public on matters of public interest.
Even WikiLeaks’ most devoted critics and enemies are constrained to acknowledge that WikiLeaks’ publications in general — and its disclosure of at least some of the DNC and Podesta emails, in particular — informed the public about matters legitimately in the public interest. That’s why literally every major media outlet reported on their contents, why those documents forced the resignation of five top DNC officials and the firing of a CNN commentator, and why the DNC itself believes, as evidenced by this lawsuit, that it changed perceptions of Hillary Clinton.
That the Constitution and basic precepts of press freedom bar the attempt to convert WikiLeaks’ publication into something illegal was a fact embraced by the Obama administration. The Obama DOJ was eager to prosecute WikiLeaks for publishing hundreds of thousands of State Department cables and classified war logs from the Iraq and Afghanistan wars. But it knew that it was barred from doing so if all it could demonstrate was that WikiLeaks published stolen information.
As a result, the Obama DOJ knew that its only chance to prosecute WikiLeaks was if it could prove that Assange actually participated in and abetted what the government regarded as the theft by Chelsea Manning of those documents; so it tried hard, as the New York Times reported in 2010, to prove that Assange did more than just receive and publish the stolen documents:
Justice Department officials are trying to find out whether Mr. Assange encouraged or even helped the analyst, Pfc. [Chelsea] Manning to extract classified military and State Department files from a government computer system. If he did so, they believe they could charge him as a conspirator in the leak, not just as a passive recipient of the documents who then published them. … But while prosecutors have used such laws to go after leakers and hackers, they have never successfully prosecuted recipients of leaked information for passing it on to others — an activity that can fall under the First Amendment’s strong protections of speech and press freedoms.
The Obama DOJ could never find evidence that anyone from WikiLeaks actually helped Manning take the documents. They concluded that WikiLeaks’ role was confined to receiving and then publishing the materials Manning took. As a result, the Obama DOJ decided that it could not prosecute WikiLeaks because to do so would be to threaten all press freedom. After all, if it were criminal for WikiLeaks to publish those documents, why wasn’t it also a crime for the New York Times and The Guardian to do so? As the Washington Post put it in 2013:
The Justice Department has all but concluded it will not bring charges against WikiLeaks founder Julian Assange for publishing classified documents because government lawyers said they could not do so without also prosecuting U.S. news organizations and journalists, according to U.S. officials. … [O]fficials said that although Assange published classified documents, he did not leak them, something they said significantly affects their legal analysis. …
Justice officials said they looked hard at Assange but realized that they have what they described as a “New York Times problem.” If the Justice Department indicted Assange, it would also have to prosecute the New York Times and other news organizations and writers who published classified material, including The Washington Post and Britain’s Guardian newspaper, according to the officials, who spoke on the condition of anonymity to discuss internal deliberations.
In 2017, after Trump CIA Director Mike Pompeo threatened to do everything possible to destroy WikiLeaks, including prosecuting it, former Obama DOJ spokesperson Matthew Miller said on Twitter that the threats were “hollow” because the U.S. government knows that it is not illegal for someone merely to publish documents, even if the documents are stolen:
That a grave threat to press freedoms would be posed by any attempts to render illegal WikiLeaks’ publication of stolen material was also widely recognized many major media outlets, which strongly editorialized against it. The Washington Post Editorial Page, for instance, published an 2010 editorial headlined “Don’t Charge WikiLeaks”:
Such prosecutions are a bad idea. The government has no business indicting someone who is not a spy and who is not legally bound to keep its secrets. Doing so would criminalize the exchange of information and put at risk responsible media organizations that vet and verify material and take seriously the protection of sources and methods when lives or national security are endangered.
No media outlet can function, indeed journalism cannot function, if it becomes illegal to publish secret materials taken by a source without authorization or even illegally. The Obama DOJ — which was not exactly a bastion of press freedom protection, and which despised Assange as much as anyone — wisely recognized this fact, when it decided that it could not prosecute WikiLeaks for publishing stolen materials without severely endangering press freedoms.
The DNC, unfortunately, is not nearly as wise — nor nearly as worried — about destroying press freedom in the U.S. The theory it embraced today to sue WikiLeaks for publishing documents is a far more serious menace than any of Donald Trump’s insulting tweets about Chuck Todd. It deserves condemnation and scorn by anyone who actually cares about press freedom.
