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IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
RICHMOND DIVISION
______________________________________
ROY COCKRUM, et al.,
Case No. 3:18-cv-484-HEH
Plaintiffs,
v.

Date: November 16, 2018

DONALD J. TRUMP FOR
PRESIDENT, INC.,
Defendant.

BRIEF OF LAW PROFESSORS ERWIN CHEMERINSKY AND RICH SCHRAGGER
AS AMICI CURIAE IN SUPPORT OF PLAINTIFFS

Victor Glasberg (VA Bar No. 16184)
Victor M. Glasberg & Associates
121 S. Columbus Street
Alexandria, VA 22314
703.684.1100
Fax: 684.1104
vmg@robinhoodesq.com
Vincent Levy (pro hac vice pending)
Gregory Dubinsky (pro hac vice pending)
Evan H. Stein (pro hac vice pending)
HOLWELL SHUSTER & GOLDBERG LLP
425 Lexington Avenue, 14th Floor
New York, NY 10017
646-837-5151
vlevy@hsgllp.com

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TABLE OF CONTENTS

TABLE OF AUTHORITIES .......................................................................................................... ii
INTERESTS OF AMICI CURIAE .................................................................................................. v
INTRODUCTION .......................................................................................................................... 1
ARGUMENT .................................................................................................................................. 3
I.

THE CONSTITUTION DOES NOT PROTECT SPEECH INTEGRAL TO CRIMINAL
ACTIVITY .......................................................................................................................... 4
BARTNICKI DOES NOT IMMUNIZE THE CAMPAIGN’S CONDUCT ....................... 6

II.
A.

Bartnicki Turned On The “Special Circumstances” In That Case ................................ 6

B.

The Campaign’s Alleged Involvement In The Wrongful Theft Of Information Takes
This Case Out Of Bartnicki’s Protections..................................................................... 7

C.

Bartnicki Provides No Protection For The Public Disclosure Of Private Facts ........... 9

D.

The Involvement Of Foreign Actors Is Another Reason Not To Apply Bartnicki..... 12

III. PERMITTING THIS CASE TO PROCEED DOES NOT THREATEN LEGITIMATE
PRESS FUNCTIONS ....................................................................................................... 14
CONCLUSION ............................................................................................................................. 16

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TABLE OF AUTHORITIES
CASES
Bartnicki v. Vopper,
532 U.S. 514 (2001) ........................................................................................................... passim
Bluman v. Fed. Election Comm’n,
800 F. Supp. 2d 281 (D.D.C. 2011) ................................................................................ 3, 12, 13
Boehner v. McDermott,
484 F.3d 573 (D.C. Cir. 2007) .................................................................................................. 10
Branzburg v. Hayes,
408 U.S. 665 (1972) .................................................................................................................. 14
Cal. Motor Transport Co. v. Trucking Unlimited,
404 U.S. 508 (1972) .................................................................................................................... 4
Citizens United v. FEC,
558 U.S. 310 (2010) .................................................................................................................. 13
Giboney v. Empire Storage & Ice Co.,
336 U.S. 490 (1949) .................................................................................................................... 1
Holder v. Humanitarian Law Project,
561 U.S. 1 (2010) ........................................................................................................................ 4
Horton v. City of St. Augustine,
272 F.3d 1318 (11th Cir. 2001) ................................................................................................ 15
Latino Officers Ass’n, N.Y., Inc. v. City of New York,
196 F.3d 458 (2d Cir. 1999)...................................................................................................... 14
Main Rd. v. Aytch,
522 F.2d 1080 (3d Cir. 1975).................................................................................................... 14
New York Times Co. v. Sullivan,
376 U.S. 254 (1964) .......................................................................................................... 1, 9, 13
New York Times Co. v. United States,
403 U.S. 713 (1971) .................................................................................................................. 14
New York v. Ferber,
458 U.S. 747 (1982) .................................................................................................................... 4

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Quigley v. Rosenthal,
327 F.3d 1044 (10th Cir. 2003) .............................................................................................. 8, 9
Smith v. Daily Mail Publ’g Co.,
443 U.S. 97 (1979) ...................................................................................................................... 2
United States v. Alvarez,
567 U.S. 709 (2012) .................................................................................................................... 4
United States v. Rowlee,
899 F.2d 1275 (2d Cir. 1990)...................................................................................................... 5
United States v. Varani,
435 F.2d 758 (6th Cir. 1970) ...................................................................................................... 4
STATUTES AND RULES

7 U.S.C. § 8791(b)(2) ..................................................................................................................... 5
18 U.S.C. § 1030 ......................................................................................................................... 4, 5
18 U.S.C. § 35 ................................................................................................................................. 5
18 U.S.C. § 115 ............................................................................................................................... 5
18 U.S.C. § 157 ............................................................................................................................... 5
18 U.S.C. § 201 ............................................................................................................................... 5
18 U.S.C. §§ 210-11 ....................................................................................................................... 5
18 U.S.C. § 224 ............................................................................................................................... 5
18 U.S.C. § 226 ............................................................................................................................... 5
18 U.S.C. § 241 ............................................................................................................................... 5
18 U.S.C. § 371 ............................................................................................................................... 3
18 U.S.C. § 372 ............................................................................................................................... 5
18 U.S.C. § 594 ............................................................................................................................... 5
18 U.S.C. § 550 ............................................................................................................................... 5
18 U.S.C. § 605 ............................................................................................................................... 5
18 U.S.C. § 610 ............................................................................................................................... 5
18 U.S.C. §§ 793-98 ....................................................................................................................... 5
18 U.S.C. § 872 ............................................................................................................................... 5
18 U.S.C. § 873 ............................................................................................................................... 5
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18 U.S.C. § 878 ............................................................................................................................... 5
18 U.S.C. § 1001 ............................................................................................................................. 5
18 U.S.C. § 1027 ............................................................................................................................. 5
18 U.S.C. § 1343 ............................................................................................................................. 5
18 U.S.C. § 1621 ............................................................................................................................. 5
18 U.S.C. § 1831 ............................................................................................................................. 5
18 U.S.C. § 1832 ............................................................................................................................. 5
18 U.S.C. § 1902 ............................................................................................................................. 5
18 U.S.C. § 1905-07 ....................................................................................................................... 5
18 U.S.C. § 2710 ............................................................................................................................. 5
29 U.S.C. § 2008 ............................................................................................................................. 5
42 U.S.C. § 1320d-6 ....................................................................................................................... 5
42 U.S.C. § 1985(3) ........................................................................................................................ 3
52 U.S.C. § 30121(a) ...................................................................................................................... 4
11 C.F.R. § 110.20(h) ..................................................................................................................... 4

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INTERESTS OF AMICI CURIAE
Amici submit this brief in support of Plaintiffs.1 Amici are Erwin Chemerinsky, Dean and
Jesse E. Choper Distinguished Professor of Law at Berkeley Law, and Rich Schragger, Perre
Bowen Professor of Law at the University of Virginia School of Law. As professors who teach
and write on constitutional law, they have an interest in the correct application of First
Amendment law.
Amici take no position on the plausibility of Plaintiffs’ claim that Defendants engaged in
the conduct alleged in the complaint, or that the alleged facts, if true, state plausible claims under
state and federal law. Instead, although Amici maintain various views on the scope of the First
Amendment, they submit that the Court should reject Defendant’s assertion that the Constitution
immunizes the various conspiracies alleged in the complaint.

1

Amici affirm that no person, other than amici and their counsel, authored this brief in whole or
in part; and that no person, other than amici and their counsel, contributed money that was intended to
fund the preparation or submission of this brief.

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INTRODUCTION
The Free Speech Clause of the First Amendment embodies “the principle that debate on
public issues should be uninhibited, robust, and wide-open.” New York Times Co. v. Sullivan,
376 U.S. 254, 270 (1964). It was adopted to safeguard the right to speak truth to power without
fear of censorship, retribution, or punishment, even where the government disagrees with the
speaker’s views.
The Trump Campaign asserts that these fundamental protections accord it immunity from
liability here because then-candidate Donald J. Trump and others acting on the Campaign’s
behalf are being sued for words spoken during an election. Mere words, the Campaign
maintains, cannot give rise to liability under the First Amendment if the words are truthful.
With respect, there is no First Amendment right to conspire with a foreign government to
influence elections. Or to conspire with foreign agents to steal and disseminate a political
opponent’s confidential information. Or to conspire to intimidate members of an opposition
party. Or to intentionally injure a rival’s supporters on account of their electoral preferences.
The Campaign’s arguments to the contrary warp the meaning of the First Amendment.
Most fundamentally, there is no support for the Campaign’s assertion that the First Amendment
shields its conduct because words are at issue. Criminal and tort laws can be valid even where
the alleged wrongdoer used words to commit the offense: “[I]t has never been deemed an
abridgment of freedom of speech,” the Supreme Court has held, “to make a course of conduct
illegal merely because the conduct was in part initiated, evidenced, or carried out by means of
language, either spoken, written, or printed.” Giboney v. Empire Storage & Ice Co., 336 U.S.
490, 502 (1949).

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And the Campaign fails in its effort to manufacture a constitutional immunity to conspire
with foreign powers to influence elections or harm private citizens. Bartnicki v. Vopper, the
primary case upon which the Campaign relies, concerned a unique set of facts involving the
publication of stolen information; the Court held that the publisher of information was immune
from liability because (a) the disseminator was “not involved” and “played no part” in the
“illegal” theft of information, and (b) the information at issue was of paramount public concern,
while “the speakers’ legitimate privacy expectations [were] unusually low.” Bartnicki v. Vopper,
532 U.S. 514, 525, 529 (2001); id. at 540 (Breyer, J., concurring). The Court stressed these
unique facts repeatedly, as did Justice Breyer, joined by Justice O’Connor, when he explained in
a separate opinion why the two were supplying the votes needed to form a majority. Id. at 525,
528-30, 535; see id. at 535-41 (Breyer, J., concurring); see also Smith v. Daily Mail Publ’g Co.,
443 U.S. 97, 103 (1979) (“[I]f a newspaper lawfully obtains truthful information about a matter
of public significance then state officials may not constitutionally punish publication of the
information, absent a need . . . of the highest order.” (emphasis added)).
Plaintiffs’ allegations remove this case from Bartnicki’s protections. Unlike the Bartnicki
defendants — who “found out about the interception only after it occurred,” “never learned the
identity of the persons or persons who made the interception,” and obtained “access to the
information on the tapes . . . lawfully,” 532 U.S. at 525 — the Campaign allegedly conspired
with Russia and WikiLeaks to disseminate emails obtained by Russia in a then-ongoing hack so
as to intimidate and threaten supporters of the Campaign’s rival, among other misconduct. The
Campaign, it is alleged here, directed Russian operatives’ dissemination of unlawfully obtained
information to WikiLeaks as part of a quid pro quo deal with Russia. Plaintiffs’ allegations,

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accepted as true for purposes of the First Amendment analysis, take the Campaign far outside of
Bartnicki’s immunity for the “law-abiding possessor of information.” 532 U.S. at 529.
That should be enough to take this case out of Bartnicki’s ambit. But there is more.
Bartnicki reflects the Constitution’s “core” protections for speech of public concern, while the
torts here involved the alleged dissemination of private information. Meanwhile, the Campaign
makes no argument that the Campaign’s alleged co-conspirators (WikiLeaks and Russian
intelligence) — the only persons who actually disclosed any information here — themselves had
First Amendment rights. That is unsurprising, because the First Amendment does not protect the
efforts of foreign powers, or their agents, to influence elections. Bluman v. Fed. Election
Comm’n, 800 F. Supp. 2d 281 (D.D.C. 2011) (Kavanaugh, J.), aff’d, 565 U.S. 1104 (2012).
If the Court reaches the First Amendment questions presented here, it should hold,
without any trepidation, that the First Amendment does not immunize the conduct alleged in the
complaint.
ARGUMENT
Amici evaluate the First Amendment immunity urged by the Campaign’s motion by
taking Plaintiffs’ allegations as true and by assuming they plausibly allege a violation of state
and federal tort and criminal law. The core allegations here are that the Campaign entered into a
conspiracy with the Russian Government and WikiLeaks (a) to intimidate voters from “support
or advocacy” for electors for President and to “injure” such voters “on account of such support or
advocacy,” in violation of 42 U.S.C. § 1985(3); (b) to interfere with or obstruct the lawful
electoral functioning of the government, in violation of 18 U.S.C. § 371; and (c) to commit
various state torts, including public disclosure of private facts. Per Plaintiffs, the Campaign, in
furtherance of that conspiracy, itself violated various provisions of federal and state law,

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including by accepting information known to have been obtained through unauthorized access to
a computer network, 18 U.S.C. § 1030(a)(2); and by violating the ban on contributions or
donations by foreign nationals in federal elections and by soliciting, assisting, or accepting such
contributions and donations, 52 U.S.C. § 30121(a); 11 C.F.R. § 110.20(h). Amici are of the view
that there is no First Amendment immunity to engage in the conduct alleged here.
I.

THE CONSTITUTION DOES NOT PROTECT SPEECH INTEGRAL TO
CRIMINAL ACTIVITY
At the outset, it is well-settled that the First Amendment does not protect “speech integral

to criminal conduct.” United States v. Alvarez, 567 U.S. 709, 717 (2012) (plurality opinion)
(collecting authorities). The federal and state governments may lawfully prohibit injurious
misconduct, and provide a civil or criminal remedy, even where a defendant’s speech is
implicated. New York v. Ferber, 458 U.S. 747, 761-62 (1982); Cal. Motor Transport Co. v.
Trucking Unlimited, 404 U.S. 508, 514 (1972) (“First Amendment rights are not immunized
from regulation when they are used as an integral part of conduct which violates a valid
statute.”); Holder v. Humanitarian Law Project, 561 U.S. 1, 26-39 (2010) (material support of
terrorism may be made a crime consistent with the First Amendment).
Thus, the government may constitutionally punish and criminalize conduct even where
speech is “the very vehicle of the crime itself.” United States v. Varani, 435 F.2d 758, 762 (6th
Cir. 1970). The Constitution does not immunize “advocacy intended, and likely, to incite
imminent lawless action,” “obscenity,” “defamation,” “speech integral to criminal conduct,”
“fighting words,” “child pornography,” “fraud,” “true threats,” and “speech presenting some
grave and imminent threat the government has the power to prevent.” Alvarez, 567 U.S. at 717
(plurality opinion). And so, federal law has long made it a crime to engage in fraud, blackmail,

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perjury, intimidation, and coercion, among other misconduct effectuated through words.2
Federal law also bars the disclosure of all sorts of protected information, such as the leaking of
classified information.3
It is also established that conspiracies, although they also may be effectuated through
speech, can be punished consistently with the First Amendment. United States v. Rowlee, 899
F.2d 1275, 1278 (2d Cir. 1990) (“Appellants were convicted of the act of conspiracy . . . . Their
conduct was not protected by the First Amendment merely because, in part, it may have involved
the use of language.”). Thus, the common law has long prohibited all sorts of illicit agreements,
and federal law likewise prohibits conspiracies although they may be evidenced by or formed
with words. E.g., 18 U.S.C. §§ 241 (conspiracy against exercise of civil rights) 371-72
(conspiracy to commit offense against the United States or to impede officers); 1030(b)
(conspiracy to commit computer fraud).
As a result, the First Amendment does not protect the Campaign from liability for
conduct that violates federal law or that is tortious under state law merely because the
Campaign’s illegalities were effectuated with words.

2

E.g., 18 U.S.C. §§ 35 (conveying categories of false information); 115 (threats of violence
against public officials and their families); 157 (fraudulent representations in bankruptcy); 201(c) (bribery
of public officials and witnesses); 210-11 (offers, and acceptance of offers, to procure appointive public
office); 224 (bribery in sporting contests); 226 (bribery affecting port security); 550 (false claim for
refund of duties); 594 (intimidation of voters); 610 (coercion of political activity); 793-798 (espionage);
872 (extortion by federal officers); 873 (blackmail); 878 (threats and extortion against foreign officials);
1001 (false statements to government officials); 1027 (false statements in relation to ERISA documents);
1343 (wire fraud); 1621 (perjury).
E.g., 18 U.S.C. §§ 605 (barring “furnish[ing] or disclos[ing]” for “political purpose” any “list of
names” of persons receiving funds for work relief to political candidates); 798 (disclosure of classified
information); 1831 (dissemination of trade secrets for benefit of foreign governments); 1832
(dissemination of trade secrets); 1902 (disclosure of crop information); 1905-07 (certain types of
confidential information); 2710 (disclosure of video tape rental or sale records); 42 U.S.C. § 1320d-6
(criminal penalties for disclosing “individually identifiable health information” without authorization); 7
U.S.C. § 8791(b)(2) (information provided by agricultural operations to the Department of Agriculture);
29 U.S.C. § 2008 (“information obtained during a polygraph test”).
3

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II.

BARTNICKI DOES NOT IMMUNIZE THE CAMPAIGN’S CONDUCT
Bartnicki announced a narrow constitutional immunity to publish newsworthy

information lawfully obtained by the publisher, even where a third party had previously and
unlawfully obtained the later-published information. The Supreme Court did not create an
immunity to conspire with foreign actors to steal and disclose harmful private information, to
influence elections, or to engage in any of the other misconduct alleged here.
A. Bartnicki Turned On The “Special Circumstances” In That Case
In Bartnicki, an “unidentified person” intercepted and recorded a telephone call
describing plans of violence by two people involved in negotiations between a teachers’ union
and a school board. 532 U.S. at 518. Yocum, a person opposed to the union, but with no
connection to the interception, found a tape of the recorded conversation in his mailbox and
relayed it to Vopper, a radio commentator, who played it on air. Id. at 519. Both individuals
“found out about the interception only after it occurred” and “never learned the identity of the
person or persons who made the interception.” Id. at 525. Nor did either individual know how
the tape had come to be in Yocum’s mailbox. Id. at 519-20. The allegations in the complaint
stated only that the radio commentator (and others) “knew or had reason to know” that the
conversation had been illegally recorded. Id. It was undisputed that “their access to the
information was obtained lawfully, even though the information itself was intercepted unlawfully
by someone else.” Id. at 525.
Thus, the “narrow” question addressed in Bartnicki was whether the First Amendment
permits punishment of “a law-abiding possessor of information” on a matter of public concern
who discloses that information, where the disseminator had absolutely no involvement with,
knowledge of, or connection to the wrongdoer — where the disseminator is “a stranger” to the

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wrongdoer and the illegal conduct. Id. at 529, 535. Stressing the “limited principles that sweep
no more broadly than the appropriate context of the instant case,” the Court held that it would
violate the First Amendment to punish the publication in that case. Id. at 528-29. The Court
emphasized not only the unique circumstances through which the publisher had obtained the
information, but also the public interest in the information disclosed.
In providing the dispositive votes for the Court’s 6-3 decision in Bartnicki, Justices
Breyer and O’Connor also went out of their way to stress the very “special circumstances” of
that case:
(1) the radio broadcasters acted lawfully (up to the time of final public disclosure); and
(2) the information publicized involved a matter of unusual public concern, namely,
a threat of potential physical harm to others.
Id. at 535-36 (concurring op.). Thus, they emphasized that “the broadcasters here engaged in no
unlawful activity other than the ultimate publication of the information another had previously
obtained” and “neither encouraged nor participated directly or indirectly in the interception.” Id.
at 538 (emphasis added). They stressed the unique nature of the information disclosed. Id. at
540. And they explained, in closing, that they “would not extend th[e] [Court’s] holding
beyond” the facts of that case, for members of the media or anyone else. Id. at 541.
B. The Campaign’s Alleged Involvement In The Wrongful Theft Of Information
Takes This Case Out Of Bartnicki’s Protections
Plaintiffs’ allegations, which Amici assume to be true for purposes of evaluating the First
Amendment immunity claimed by the Campaign, thus remove this case from any conceivable
proximity to Bartnicki’s protections. That is so for the simple reason that the complaint alleges
that the Campaign was involved in, knew about, and participated in the illegal scheme as it was
ongoing and violated laws unrelated to publication. That means the first of the two “special
circumstances” on which Bartnicki turned is entirely absent.
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Thus, Plaintiffs allege that the Campaign — “alerted” by the Kremlin “that it was in
possession of stolen DNC emails” as the Russian hacks were ongoing — “agreed that Russia
would release the stolen emails in order to help the Campaign and the Campaign would provide
political benefits to Russia in return.” Amended Complaint, Dkt. 8, ¶ 2 (“Compl.”). “At the
direction of” Russia and the Campaign, allegedly, “the emails were then released by WikiLeaks,
which joined the conspiracy.” Id. ¶ 2. In return, the Campaign allegedly “followed through on
its promise to provide benefits to the Russian regime.” Id.
Unlike the defendants in Bartnicki, therefore, the Campaign is alleged to have conspired
with those who stole the information that was disclosed while the theft was ongoing. The
Campaign, to paraphrase Bartnicki, allegedly “played [a] part” in the unlawful gathering of
information; “found out about the interception” before “it occurred”; “learned the identity of the
person or persons who made the interception”; “encouraged,” “participated directly or
indirectly”; and “ordered, counseled, . . . or otherwise aided or abetted the interception [and] the
later delivery of the [stolen information] by the interceptor to an intermediary.” Bartnicki, 532
U.S. at 519, 525; id. at 538 (Breyer, J., concurring). The Campaign, in other words, is alleged to
be a joint tortfeasor and co-conspirator, not an innocent bystander. The Campaign’s conduct is
therefore not privileged under the First Amendment.
Quigley v. Rosenthal is instructive. 327 F.3d 1044 (10th Cir. 2003). There, the Tenth
Circuit declined to immunize the Anti-Defamation League’s (“ADL”) publication of
conversations, which the ADL had obtained from the intercepting party (the Aronsons), even
though the ADL had done “nothing to ‘procure’” them. Id. (emphasis added). Bartnicki was
inapposite, the Tenth Circuit held, because the ADL was not a stranger to the interception:
the ADL, from the time of its first contacts with the Aronsons in late October
1994, knew that the Aronsons were the persons responsible for recording the
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Quigleys’ telephone conversations. Further, it was uncontroverted that the ADL
knew, during November and early December 1994, that the Aronsons were
continuing to record the Aronsons’ telephone conversations.
Id. at 1067 (emphasis added). The Tenth Circuit distinguished Bartnicki on the ground that the
disclosing party in Bartnicki had learned of the interception after it had occurred and never
learned the interceptor’s identity. Here, to repeat, the Campaign is alleged to have learned about
the hacking from the Russians while it was ongoing, agreed to participate in a conspiracy to use
the hacked emails to its advantage, and facilitated the disclosure of emails by a third party only
after providing the Russian government with assurances. Compl. ¶¶ 149, 154-55, 261.
C. Bartnicki Provides No Protection For The Public Disclosure Of Private Facts
The second “special circumstance” on which Bartnicki turned is also absent. Unlike
Bartnicki — which involved the “publication of intercepted information of a special kind” about
the threatened use of violence in a public negotiation between a union and a government body,
532 U.S. at 540 (Breyer, J., concurring) — this case concerns the dissemination of private
information not alleged to be important to the political or social discourse in any respect.
Bartnicki’s immunity was rooted in a long line of cases reflecting the “overriding
importance” of “our profound national commitment to the principle that debate on public issues
should be uninhibited, robust, and wide-open.” Id. at 534 (emphasis added) (quoting New York
Times Co. v. Sullivan, 376 U.S. 254, 270 (1964)). Those cases recognize that civil remedies and
criminal statutes must sometimes yield when paramount First Amendment rights and interests
are at stake. For example, New York Times v. Sullivan, on which Bartnicki relied, famously
requires a showing of “actual malice” before subjecting a publisher to liability for libel in “an
action brought by a public official against critics of his official conduct” on a “major public
issue[].” 376 U.S. at 268, 271, 281. To hold otherwise, the Court reasoned, would be to

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significantly curtail political and social discourse and to disregard the Framers’ concern that the
government ought not be able to impose punishment for seditious libel.
In line with those precedents, Bartnicki sought to carefully balance and apply to the facts
of that case two “interests of the highest order — on the one hand, the interest in the full and free
dissemination of information concerning public issues, and, on the other hand, the interest in
individual privacy and, more specifically, in fostering private speech.” 532 U.S. at 518
(emphasis added). The Supreme Court’s animating concern was, accordingly, to protect speech
regarding “matter[s] of public concern” — that is, the kind of speech that “implicates the core
purposes of the First Amendment” — while balancing competing interests. Id. at 525, 533-34.
Similarly, the two concurring Justices emphasized “the special kind” of information at
issue in Bartnicki, stressing that “the speakers’ legitimate privacy expectations are unusually
low, and the public interest in defeating those expectations is unusually high.” Id. at 540
(Breyer, J., concurring). Indeed, the participants in the conversation in Bartnicki did not have a
significant interest in keeping their threats of physical harm private, while withholding the
information from the public would significantly curtail the public discourse. Id.4
Bartnicki thus “does not stand for the proposition that anyone who has lawfully obtained
truthful information of public importance has a First Amendment right to disclose that
information.” Boehner v. McDermott, 484 F.3d 573, 577 (D.C. Cir. 2007) (en banc). And where
only private information is at stake, Bartnicki has no application at all.

4

In turn, the dissenting Justices in Bartnicki (Chief Justice Rehnquist, joined by Justices Scalia
and Thomas) would have allowed punishment of “the involuntary broadcast of personal conversations.”
Id. at 554. The dissent emphasized the “significant privacy concerns” raised by the fact that “millions of
important and confidential conversations [now] occur through a vast system of electronic networks.” Id.
at 541.

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Again, therefore, Plaintiffs’ allegations take this case outside of Bartnicki’s protections.
In contrast to Bartnicki, this case concerns the disclosure of “private information” that allegedly
did not “involv[e] any public policy matter at issue in the [2016] campaign”; the disclosed
information includes Plaintiffs’ social security numbers, home addresses, and private
correspondence, including correspondence about personal health matters. Compl. ¶ 26; see id. at
¶¶ 10, 11, 18-27. In this case, “[a]lthough a handful of the released emails unrelated to Plaintiffs
received a significant amount of news coverage, the vast majority of the tens of thousands of
emails and attachments dumped on the Internet in furtherance of the conspiracy were not of
public interest.” Compl. ¶ 26. That is, again, enough to make Bartnicki entirely inapplicable.
Amici will not repeat Plaintiffs’ persuasive explanation why the Campaign is wrong to
focus solely on the “aggregate” in ascertaining newsworthiness, Pltfs. Br. 7-8, 13-15, but Amici
do pause to note that the Campaign’s proposed approach is highly concerning in an era when,
with the click of a mouse, any person can blast unlimited amounts of data to the world. If one
drop of newsworthiness in a vast batch of information suffices to immunize the release of the
most private and intimate facts of innocent bystanders, then “the fear of public disclosure of
private conversations might well have a chilling effect on private speech,” in a manner
deleterious to the “privacy of communication [that] is essential if citizens are to think and act
creatively and constructively.” Bartnicki, 532 U.S. at 533 (quotation marks omitted); see also id.
at 554 (Rehnquist, C.J., dissenting) (concerned that Court’s holding would chill private speech of
the “millions of people” who, in 2001, “communicate[d] electronically on a daily basis”). The
First Amendment does not mandate that result, and there is every good reason to require
publishers of important information to take care to omit unnecessary private details that may
injure private bystanders.

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D. The Involvement Of Foreign Actors Is Another Reason Not To Apply Bartnicki
Finally, Plaintiffs’ allegations of a conspiracy with hostile foreign actors provide another
reason not to immunize the Campaign’s conduct. Plaintiffs allege (and Amici assume) that
WikiLeaks — described by the U.S. Secretary of State as “a non-state hostile intelligence service
often abetted by state actors like Russia,” Compl. ¶ 176 — obtained and disclosed the private
emails at issue here as part of a conspiracy with Russia and the Campaign, and was acting as
Russia’s agent in so doing. The Campaign is not alleged to have itself disclosed the information
forming the basis of the suit.
The Campaign does not argue, nor could it under the prevailing case law, that Russia or
its foreign agents, acting outside the United States, had a First Amendment right to obtain
unlawfully and disclose publicly the private information at issue in this case. Nor can the
Campaign plausibly argue that a computer hack by agents of a foreign power to unlawfully
obtain and disclose information from the Democratic National Committee (as is alleged here)
furthers “the core purposes of the First Amendment.” Bartnicki, 532 U.S. at 533-34.
As then-Judge Kavanaugh explained in a case involving the First Amendment rights of
foreign citizens present in the United States, “the government may bar foreign citizens . . . from
participating in the campaign process that seeks to influence how voters will cast their ballots in
the elections.” Indeed, “[i]t is fundamental to the definition of our national political community
that foreign citizens do not have a constitutional right to participate in, and thus may be excluded
from, activities of [U.S.] democratic self-government.” Bluman, 800 F. Supp. 2d at 288. “It
follows, therefore, that the United States has a compelling interest for purposes of First
Amendment analysis in limiting the participation of foreign citizens in activities of American
democratic self-government, and in thereby preventing foreign influence over the U.S. political

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process.” Id.5; see Citizens United v. FEC, 558 U.S. 310, 423 (2010) (Stevens, J., dissenting)
(without contradiction from majority opinion, explaining that “we have never cast doubt on laws
that place special restrictions on campaign spending by foreign nationals”).
*

*

*

*

In short, Bartnicki is facially inapposite because the complaint alleges that the Campaign
was a co-conspirator and joint tortfeasor; it was not an innocent bystander. Further, the
complaint alleges torts based on the disclosure of private facts — the privacy interests at stake
cut strongly against the disseminator, as every member of the Bartnicki Court recognized, 532
U.S. at 518; id. at 540 (Breyer, J., concurring); id. at 541-42 (Rehnquist, C.J., dissenting, joined
by Scalia and Thomas, JJ.). And the allegations implicate the most compelling interests in favor
of regulation in our constitutional order — “national security” and the prevention of “foreign
influence over the U.S. political process,” Bluman, 800 F. Supp. 2d at 283-84, 288.
On the other side of the constitutional ledger, First Amendment immunity for the
Campaign’s alleged involvement in a conspiracy to disseminate confidential personal
information by foreign actors would not further the fundamental interest in the “national
commitment to the principle that debate on public issues should be uninhibited, robust, and wideopen.” 532 U.S. at 534 (emphasis added) (quoting Sullivan, 376 U.S. at 270). Evaluating the
constitutional interests at issue as Bartnicki instructs, the Court should reject the Campaign’s
attempt to use the First Amendment as a shield against Plaintiffs’ allegations.

5

The Supreme Court unanimously affirmed the Bluman judgment granting the Federal Election
Commission’s motion to dismiss against a suit filed by foreign citizens seeking to become involved in
“political contributions and express-advocacy expenditures.” 565 U.S. 1104; 800 F. Supp. 2d at 288.

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III.

PERMITTING THIS CASE TO PROCEED DOES NOT THREATEN
LEGITIMATE PRESS FUNCTIONS
The Campaign would have the Court believe that allowing this case to proceed would

threaten the very foundation of the First Amendment. There is no such risk.
The existing regime gives the press no license to steal information,6 and yet it ensures
that the press has the breathing room needed to protect the core values enshrined in the First
Amendment. Thus, so long as the press lawfully obtains information, even if that information
was illegally obtained by a third party, it cannot be held liable when it publishes newsworthy
information. Nothing about this case threatens to alter that firmly established regime. Although
a “fundamental purpose of the First Amendment is to foreclose governmental control or
manipulation of the sentiments uttered to the public,” Main Rd. v. Aytch, 522 F.2d 1080, 1087
(3d Cir. 1975), that purpose is furthered — not hindered — by punishing those who engage in a
conspiracy with the thief to disseminate stolen information to injure specific persons.
It is important to remember that this case is not about a prior restraint. Cf. New York
Times Co. v. United States, 403 U.S. 713 (1971) (per curiam) (upholding publication of
information on a matter of public interest in the face of a prior restraint). The information at
issue in this case has already been disclosed to the public. Whether the Campaign, through
WikiLeaks, could have been stopped from disclosing the information in the first place consistent
with the First Amendment is simply not the question here. See Latino Officers Ass’n, N.Y., Inc.
v. City of New York, 196 F.3d 458, 465 (2d Cir. 1999) (drawing distinction between prior
restraint and punishment “after the fact”); Horton v. City of St. Augustine, 272 F.3d 1318, 1332

See Branzburg v. Hayes, 408 U.S. 665, 691 (1972) (“It would be frivolous to assert . . . that the
First Amendment, in the interest of securing news or otherwise, confers a license on either the reporter or
his news sources to violate valid criminal laws. Although stealing documents or private wiretapping
could provide newsworthy information, neither reporter nor source is immune from conviction for such
conduct . . . .”).
6

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 Case 3:18-cv-00484-HEH Document 46 Filed 11/16/18 Page 21 of 22 PageID# 512

(11th Cir. 2001) (same). The only question is whether a domestic actor can be held liable for
conspiring with a foreign power that unlawfully acquires private information to disseminate that
information for the purpose of injuring political opponents. Punishing this conduct is fully
consistent with the Supreme Court’s careful instructions and will not discourage press
organizations from undertaking legitimate, legal fact gathering or from disclosing important,
newsworthy information that is the lifeblood of our open political discourse.

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 Case 3:18-cv-00484-HEH Document 46 Filed 11/16/18 Page 22 of 22 PageID# 513

CONCLUSION
The appropriate balance is the one the Supreme Court struck in Bartnicki. Organizations
that wish to disclose truthful information on matters of public interest, where that information
was unlawfully obtained by others, may do so without fear of punishment so long as (1) they are
“strangers” to the malefactors who acquired the information, (2) they obtain access to that
information without themselves breaking the law, and (3) the information is important to the
public discourse. Taking the allegations in the complaint as true, the Campaign fails on all
counts. There is even further reason not to apply Bartnicki here, where Plaintiffs allege that the
Campaign conspired with hostile foreign actors who themselves stole and disclosed the
information.
Dated: November 16, 2018

Respectfully submitted,
By:

/s/ Victor Glasberg

Victor Glasberg (VA Bar No. 16184)
VICTOR M. GLASBERG & ASSOCIATES
121 S. Columbus Street
Alexandria, Virginia 22314
Telephone: (703) 684-1100
Facsimile: (703) 684-1104
Email: vmg@robinhoodesq.com
Vincent Levy (pro hac vice pending)
Gregory Dubinsky (pro hac vice pending)
Evan H. Stein (pro hac vice pending)
HOLWELL SHUSTER & GOLDBERG LLP
425 Lexington Avenue, 14th Floor
New York, New York 10017
Telephone: (646) 837-5151
Facsimile: (646) 837-5150
Email: vlevy@hsgllp.com
Attorneys for Amici Curiae

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