Back in April, when the DNC first sued a whole bunch of people and organizations claiming a giant conspiracy between the Russians, Wikileaks and the Trump campaign, we warned that beyond the complaint including a ton of truly nutty claims, it was also an attack on the 1st Amendment. Much of what was described as violating the law by Wikileaks and others was classic journalism activity — and a ruling in favor of the DNC would do massive harm to the 1st Amendment. Indeed, as the case has continued to move forward, more and more media organizations are warning about the possibility of a catastrophic outcome for news media should the DNC win this case.
Perhaps ironically, this puts Donald Trump on the same team, legally, as the people he repeatedly insists are “the enemy of the people.” His lawyers, of course, don’t mind the double standard and have been quick to correctly wrap themselves in the First Amendment to try to get the lawsuit dismissed. This is the proper result.
Unfortunately, Trump derangement syndrome means that otherwise competent people keep searching for a “but, Trump… ” exception to the 1st Amendment. Over at Just Security, two former Obama White House lawyers — Bob Bauer and Ryan Goodman — try to argue the case for why the 1st Amendment doesn’t protect the Trump campaign in this case. The crux of their argument is that the campaign was a lot more involved in seeking damaging information, rather than just passing it around once it had been leaked.
It is on fundamental factual distinctions between Bartnicki and the Trump case that the campaign’s First Amendment theory founders. Unlike Bartnicki’s radio host, the campaign is not free of involvement in illegal activity. It did not merely comment on what the Russians and WikiLeaks conspired to make public. It willfully engaged with both the Russians and WikiLeaks in both the pursuit and the publication of the stolen emails—actions that bump up against clear prohibitions in federal campaign finance law. Foreign nationals may not contribute or spend funds to influence an American election, and, crucially, a U.S. political campaign cannot assist or act in coordination with foreign electoral intervention.
We know that the Russians were peddling assistance to a receptive campaign, that the campaign learned as early as April 2016 that Russians possessed stolen emails, th… Jr. advised the Russians on when to release derogatory information (“later in the summer”), that the Russian hacking operation continued long after the Russians first made contact with and were greeted receptively by the campaign, that the president himself publicly encouraged the Russian government to locate the so-called “missing“ Clinton emails, and that Russian spies quickly followed by trying to hack Clinton’s personal email. There are also reports that the Russians may have previewed the plan to disseminate the emails before ever doing so. For the purposes of the ongoing civil suit, those allegations alone rob the campaign of its current defense.
But those paragraphs make a ton of assumptions, often without enough evidence to back it up. But much, much, much worse is the following paragraph that Bauer and Goodman put in, claiming that the media shouldn’t be concerned about the 1st Amendment impact of this case:
There is misplaced concern that a defeat for this First Amendment defense puts media protections at risk. Federal campaign finance regulation supplies useful guidance here: It exempts standard journalistic activity, but denies those protections to conduct outside the “legitimate press function.” It is clear from disclosures by an internal WikiLeaks critic and other materials that Julian Assange targeted Hillary Clinton and sought to work with the Trump campaign and the Russians to secure her defeat. This is not a “legitimate press function.” And the conflation of Wikileaks’ plan of campaign attack with standard journalistic activity undermines important distinctions critical to the protection of the free press.
That paragraph is frightening and should worry anyone who believes in the 1st Amendment’s protections for the press. These lawyers are basically arguing that they get to decide what is and what is not a “legitimate press function” and that working with a campaign automatically makes it not a legitimate press function. As Glenn Greenwald notes, there’s a viable argument that under the description that Bauer and Goodman lay out here someone could just as easily argue that Vox or MSNBC aren’t protected by the 1st Amendment either:
There’s no question that, say, MSNBC & Vox are working hard to help Dems win midterms & the GOP to lose. If – as these Obama lawyers argue – it’s not “a legitimate press function” to try to help candidates win & lose, does that mean MSNBC & Vox have no 1A rights? That’s toxic.
— Glenn Greenwald (@ggreenwald) November 2, 2018
Some will argue that there are differences of degree and level of cooperation, but even if that’s true (and it’s not clear that it is), you’ve already wiped out the basic 1st Amendment protections because now every media outlet will need to argue, over and over again, whether or not any of its activity counts as “a legitimate press function.” That would create massive chilling effects, and is a standard that could be easily abused.
Hell, just to bring this all back around, it doesn’t take a stable genius to figure out what President Trump would start doing if he could argue the 1st Amendment doesn’t apply to publications engaged in things that are “not a legitimate press function.” And, incredibly, the DNC seems to want to hand him this very power. It’s mind-boggling.
Dan Froomkin has an excellent reply to the Bauer/Goodman piece. He agrees that there may be some violations of the law buried in everything, but lumping in Wikileaks (even as he calls Julian Assange’s recent activities “despicable”) here is an attack on the basic 1st Amendment protections for journalists. Even if you dislike Trump massively, supporting these arguments is an attack on the press that will come back to bite everyone by handing the government and others a tool to argue that certain press activities are somehow not protected for not being “a legitimate press function.”
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