President Donald Trump’s attorneys have been quietly making the case in defense of WikiLeaks throughout legal filings responding to a lawsuit filed by Democrat Party donors who allege that the campaign and former advisor Roger Stone conspired with Russians to publish the leaked Democratic National Committee emails.
This is despite the fact that efforts by the US to arrest Assange have expanded under the Trump administration as Attorney General Jeff Sessions has declared the publishers arrest a “priority.”
CIA Director Mike Pompeo, who is now Trump’s pick to replace Rex Tillerson as Secretary of State, has also claimed that Assange has “no First Amendment rights” and that the agency, under his direction, is “working to take down WikiLeaks.”
Yet, buried within hundreds of pages of case filings, in a motion filed in October, lawyer Michael A. Carvin argued that under section 230 of the Communications Decency Act (47 U.S.C. § 230), “a website that provides a forum where ‘third parties can post information’ is not liable for the third party’s posted information.”
“That is so even when even when the website performs ‘editorial functions’ ‘such as deciding whether to publish,’” the filing contends. “Since WikiLeaks provided a forum for a third party (the unnamed ‘Russian actors’) to publish content developed by that third party (the hacked emails), it cannot be held liable for the publication.”
Carvin went on to argue that this defeats any claim of conspiracy, as a conspiracy is an agreement to commit “an unlawful act.”
“Since WikiLeaks’ posting of emails was not an unlawful act, an alleged agreement that it should publish those emails could not have been a conspiracy,” the filing asserts.
Additionally, the filing argues that the plaintiffs cannot rely on allegations of a conspiracy with Roger Stone, because they do not claim that he himself handed over the emails to WikiLeaks.
“In addition, the First Amendment generally denies the government power to punish truthful speech,” Carvin wrote. He adds that privacy cannot justify these violations of core First Amendment norms. The filing then refers to the 1989 case of Florida Star v. B.J.F., in which it was determined that “punishing truthful publication in the name of privacy” is an “extraordinary measure.”
The First Amendment is even more strictly guarded during a political campaign, when it has “its fullest and most urgent application.” According to Citizens United, the First Amendment leaves voters “free to obtain information from diverse sources in order to determine how to cast their votes.”
“It would eviscerate that guarantee to punish true disclosures made in a political campaign,” the filing contends.
The filing included dozens of examples of WikiLeaks emails that were of importance during the election.
In a later filing, which we have previously reported on, Carvin argued that WikiLeaks is protected under the Bartnicki First Amendment Test.
The motion, filed on December 29, argued that a defendant may not be held liable for a disclosure of stolen information if the disclosure deals with “a matter of public concern” and provided that the speaker was not “involved” in the theft.
Given that WikiLeaks does not steal or hack the documents that they publish, this precedent set by the case of Bartnicki v. Vapper should also apply to Assange. The organization publishes material that is given to them if it meets their editorial criteria, which is that it must be of political, diplomatic or ethical importance and it must not have been published elsewhere.
Carvin’s filing goes on to assert that there can be “no serious doubt” that the disclosures from WikiLeaks satisfied the “newsworthy” and “public concern.”
To counter the argument from the plaintiffs that only portions of the released emails were “newsworthy” and thus not all of it should be considered protected under the First Amendment, the lawyers for the Trump campaign asserted that “tort law analyzes newsworthiness on an aggregate basis,” meaning that the entirety of the disclosure as a whole is considered protected free speech.
In February, the plaintiffs filed a sur-reply in opposition to the motion to dismiss by the Trump campaign. They argued that in the Bartnicki case there was no dispute that “the subject matter of the conversation” at issue “was a matter of public concern,” were as there is an argument to be made in the case at hand.
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“Here, in contrast, the question of newsworthiness is in dispute. Defendants contend that the law permits a publisher of stolen emails to dump all of the emails online as long as some of the emails include some material that is newsworthy or of public concern. Defendants cannot (and do not try to) demonstrate that the private facts at issue here are themselves ‘matters of public concern,’” the sur-reply argues. “Instead, they argue that a disclosure should be judged ‘in the aggregate’ rather than ‘line by line’ to determine whether it ‘deals with a matter of public concern.’”
The filing claims that the plaintiffs are not trying to argue that the entire leak needs to be newsworthy, but that much of it has “no information
of any relevance to the public.” They argued that since the emails are from multiple sources it is not the same as Bartnicki which only had one phone call at issue.
Trump’s legal team previously argued that “every single email . . . inherently addressed political matters” due to the fact that they were all related to the DNC. The plaintiffs argued that if their logic holds, it would “would declare open season on the communications systems of every political, public-interest, lobbying, media, and governmental organization.”
The judge has not yet announced their ruling regarding the motion to dismiss.
Numerous requests for comment about the filings has been ignored by Carvin, his law firm and the White House.
Assange has been unable to leave their London embassy over concerns that the nation will arrest him to extradite him to the United States. An intelligence leak from Stratfor in 2012 revealed that the US has a sealed indictment against the publisher — which if convicted, could mean life in prison.
After 16 months of investigation, the UN Working Group on Arbitrary Detention (UNWGAD) determined in February of last year that Assange is being arbitrarily and unlawfully detained by Sweden and the UK and must be immediately released and compensated. The UK appealed this determination, but the UN stood by their original conclusion.
It is intensely hypocritical that the Trump campaign’s legal team will defend WikiLeaks for their own benefit while allowing the political persecution of Assange to continue.