During the 2016 campaign, Donald Trump eagerly exploited emails that Russian intelligence agencies stole from the Democratic National Committee and Clinton campaign officials, and then released through WikiLeaks and other intermediaries. As the two-year anniversary of the election approaches, it remains unclear whether Trump or his campaign will bear civil, let alone criminal, liability for the email-hacking scheme. Yet some theories being advanced in court against the Trump campaign raise serious First Amendment concerns for journalists who base their stories on documents that have been purloined or improperly released.
In April, the DNC sued Russia together with a long list of defendants, including Trump’s campaign, alleging that they engaged in a wide-ranging conspiracy to steal and misuse the emails. As Trump incessantly reminds us, however, there remains no evidence (or no publicly released evidence) establishing that his campaign actually “colluded” with the Russians to steal the emails, as the DNC contends. The plaintiffs in another recently filed lawsuit have come up with a creative, and worrisome, theory for holding the Trump campaign to account, even if Trump and his associates played no role in the hacking.
The plaintiffs in the new suit are two Democratic Party donors, along with a former DNC employee, who sent emails that were among those hacked by the Russians. The plaintiffs’ emails included personal and private information—such as Social Security numbers, health information, and even information regarding one plaintiff’s sexual orientation—that were included, without abridgment, within WikiLeaks’ document dumps. In their Aug. 23 civil complaint, the plaintiffs contend that the Trump campaign should be held liable under state as well as federal civil rights law for the publication of this private information.
In some states, a publisher can face civil liability for the invasion of privacy or the intentional infliction of emotional distress arising from the disclosure of embarrassing or otherwise harmful private personal information. Billionaire investor (and Trump supporter) Peter Thiel funded a successful lawsuit by wrestler Hulk Hogan against Gawker based on just such a theory; the resulting $140 million jury verdict bankrupted Gawker as well as its founder.
Such invasion-of-privacy suits have, however, long been questioned by civil libertarians and press advocates, who argue that the publication of truthful, nondefamatory information should not be a basis for imposing civil liability, at least upon journalists and others who play no role in purloining the data. Furthermore, the Supreme Court has imposed strict First Amendment limitations upon such claims, effectively barring liability for the dissemination of truthful information of public concern, even when the information is stolen, so long as the defendant was not involved in the underlying misappropriation.
The claims against the Trump campaign go one step beyond a typical invasion-of-privacy lawsuit, given that the Trump campaign did not publish the stolen emails. The plaintiffs nonetheless contend that the campaign should be held liable for the inclusion of the plaintiffs’ private information within WikiLeaks’ mass document dumps. While the complaint does not assert that the Trump campaign knew in advance about the email thefts, it does assert that the campaign “partnered” with Russia in formulating a scheme to plan and structure the release of the stolen documents to damage Hillary Clinton, an allegation that will be very difficult to prove unless new evidence is brought to light through the Mueller investigation.
There is now ample evidence that members and associates of the Trump campaign, ranging from the president’s eldest son to his adviser Roger Stone, interacted with representatives of the Russian government during the months leading up to the election. And Donald Trump Jr.’s emails leave little doubt that the Trump campaign would have welcomed news of Russia’s plans to disseminate “dirt” on Hillary Clinton. Furthermore, campaign adviser George Papadopoulos has admitted that he was provided with advance notice of the existence of stolen emails (although he denies sharing the information with anyone in the campaign).
But absent a basis to assert that that Trump campaign reviewed or otherwise knew of what was actually contained in the emails, the plaintiffs’ allegation that the campaign launched a scheme with the Russians to plot out the dissemination of materials to “maximize their political impact” seems to be based on speculation, not facts. And the plaintiffs’ claim that the Trump campaign knew that their private information, or that of others, was going to be disseminated seems all the more speculative.
The plaintiffs also allege that the campaign avidly “amplified and drew attention to the hacked emails” after their publication by WikiLeaks, Guccifer 2.0, et al. As the complaint puts it, the campaign schemed to “maximize [Trump’s] advantage from the release of the hacked emails.” This is plainly true. During the closing months of the campaign, Trump mentioned the stolen materials at every opportunity and even openly (jokingly, Trump now claims) encouraged Russia to steal and release more materials. Furthermore, it is all but certain that Trump campaign staffers busied themselves behind the scenes identifying the most damaging emails to highlight to members of the press.
Certainly, many would like Trump and his campaign to be held to account for enthusiastic touting of the hacked documents. Yet the complaint does not state any potentially valid legal theory for imposing liability on the campaign for exploiting the stolen emails after their publication. If gaining an “advantage” from the dissemination of stolen, but already public, emails containing truthful information could provide a basis for liability, it would raise serious concerns for free and open dialogue under the First Amendment.
Under such a theory, members of the press could bear liability along with the Trump campaign. After all, as Hillary Clinton’s campaign complained at the time, the media was an eager conduit for the dissemination of the WikiLeaks materials, devoting huge amounts of attention to salacious or embarrassing facts contained in the troves. Accordingly, if the Trump campaign were deemed to be liable for “maximizing” the “advantage” provided by WikiLeaks’ dumps of stolen documents, that could provide a template for future actions against press outlets.
As First Amendment expert Floyd Abrams, who defended the New York Times’ right to publish the purloined Pentagon Papers, has observed, even if the Trump campaign escapes liability in this case, that may not indicate that WikiLeaks would be protected from liability in future suits. After all, it is undisputed that WikiLeaks deliberately chose to publish the purloined emails in full, including the plaintiffs’ private personal information. And Supreme Court precedent leaves open the possibility that parties may be held liable for the dissemination of such information in the absence of newsworthiness. Furthermore, if the Mueller investigation ultimately does provide evidence that the Trump campaign actually “partnered” with the Russian government to publish the stolen DNC documents, a civil lawsuit could well be the very least of the president’s problems.
In the meantime, however, testing the limits of First Amendment protections to impose liability on the Trump campaign may be ill-advised. Trump was recently sued for his ongoing efforts to punish critical speech by journalists; it would be tragically ironic if a lawsuit brought against his campaign ended up providing a new tool for attacking journalists.