Democratic National Committee v. The Russian Federation, et al.

The Supreme Court has recognized broad protection for the publication of truthful information of public concern, and it has extended that protection to the publication of information that was acquired unlawfully in the first instance, so long as the publishing party was “ not involved in the initial illegality.” The press has relied on this protection to report on major stories—ranging from the Pentagon Papers to the Panama Papers—that inform the public and hold the powerful to account.

The Knight Institute, the Reporters Committee for Freedom of the Press, and the ACLU filed an amicus brief addressing this question in a case brought by the Democratic National Committee against more than a dozen entities—including the Trump campaign, Russian officials, and WikiLeaks—alleging a broad conspiracy to hack the DNC in the lead-up to the 2016 election. The lawsuit does not allege that WikiLeaks participated in the DNC hack, but instead that it released the hacked documents, and that it communicated with the source of the information to acquire and coordinate the release of the hacked documents. WikiLeaks has moved to dismiss the DNC’s charges, in part on First Amendment grounds.

Our brief emphasizes one critical point in support of WikiLeaks’ motion: An act of publication that would otherwise be protected by the First Amendment does not lose that protection simply because a source acquired the published information unlawfully, or because the publishing party communicated with the source about the receipt or publication of that information. A ruling against WikiLeaks that narrowed this protection could jeopardize this well-established legal framework that has made much important investigative and national security journalism possible.