Q: I have obtained leaked documents that appear to have been stolen from the Democratic Congressional Campaign Committee related to the upcoming congressional races. The documents have not been made public.
I do not intend to post the actual documents or any personal information (phone numbers, etc) but there are conversations in the documents that I believe are newsworthy and I would like to report on those conversations.
Do I have potential legal liability if I publish a story based on and quoting from the documents? Do I have potential liability even possessing the documents?
A: Your question is an interesting one, and certainly has been a hot issue recently with the various document leaks to news reporters.
I don’t think it’s a stretch to imagine that organizations that were in lawful possession of such documents would prefer that the news media not report on them after they are leaked, and in some instances, will actively attempt to prevent such reporting.
For example, in connection with the Sony hacks, Sony’s attorney sent a letter to various news entities warning them not to report on the leaked documents.
However, once documents are leaked, it may not be up to the original possessor of those documents to decide whether the contents are reported in the news.
The seminal case on this is Bartnicki v. Vopper, 532 U.S. 514, 535 (2001), which stands for the proposition that even if the information was illegally obtained by a third party in the first instance, those who have lawfully received the information from that source have a right, under the First Amendment, to publish information gleaned from those documents that relate to matters of public concern. “We think it clear that parallel reasoning requires the conclusion that a stranger’s illegal conduct does not suffice to remove the First Amendment shield from speech about a matter of public concern.” Id.
In Bartnicki, a third party illegally taped phone conversations between two individuals who were discussing contentious union matters, and then passed those tapes along to the defendant radio broadcaster, who played the tapes on-air and was subsequently sued for violations of the state’s wiretap laws. Id. at 518-19.
The Supreme Court determined that the radio broadcaster was not in violation of state law since he, himself, had lawfully obtained the information from the third party (and despite the fact the third party had unlawfully obtained the information). Id.at 528-30.
There are also some illuminating decisions from both the U.S. District Court for the First Circuit and the New Hampshire Supreme Court that you might want to review.
For example, in Jean v. Massachusetts State Police, 492 F.3d 24, 25 (1st Cir. 2007), the Court of Appeals found that an individual who posted an audio and video recording on a website of an arrest and warrantless search that she knew had been illegally obtained by a third party was likely to prevail in the District Court in seeking injunctive relief that would prevent the police from requiring her to remove the content from the internet.
In other words, the Court of Appeals was telling the trial court that more likely than not, she had the right under the First Amendment to publish those recordings. The Court of Appeals weighed the privacy interests of those who were recorded with the public interest in the content of the tapes, and determined that, despite the fact the publisher “made the decision to proceed with [her] disclosures knowing that the tape was illegally intercepted, … such a knowing disclosure is protected by the First Amendment.” Id. at 32.
In Mortgage Specialists, Inc. v. Implode-Explode Heavy Industries, Inc., 160 N.H. 227, 243 44 (2010), the New Hampshire Supreme Court ruled in favor of a website that had published confidential loan information obtained from a confidential source, denying the plaintiff’s request that the website be enjoined from further publishing such information (which, the court found, related to a matter of public concern).
Of course, the analysis is necessarily fact specific, and you might consider consulting with an attorney prior to publishing and/or reporting on the documents in your possession. At the very least, reporting on state politics is undeniably a matter of public concern, and it seems that the documents you have obtained are related to this issue.
Bryan Cave LLP is general counsel for the First Amendment Coalition and responds to First Amendment Coalition hotline inquiries. In responding to these inquiries, we can give general information regarding open government and speech issues but cannot provide specific legal advice or representation.