Putin, Politics, and the Press

Vladimir Putin meets with journalists during his annual call-in show on Russian television "Conversation With Vladimir Putin" April 14, 2016, in Moscow, Russia. (Photo by Mikhail Svetlov/Getty Images)

The 2016 presidential election, which upended voters, journalists, politicians, and special-interest groups, was remarkable for a number of reasons—not least Trump’s unconcealed contempt for the press, whose role was challenged again and again on the campaign trail. As the Columbia Journalism Review put it two weeks after the election in an oral history of the campaign: “From the beginning of the Trump candidacy, in the summer of 2015, the press has played a central, and not always comfortable, role: as a foil to the candidate, as a target of derision and threats by his supporters, as a stand-in for the ridiculed establishment.”[1]

The New York Times went further in a December 13 story detailing Russian efforts to disrupt the 2016 presidential election, describing “every major publication, including The Times,” as “a de facto instrument of Russian intelligence.”[2] Running more than 7,000 words, the story broke down how, in 2015, hackers linked to the Russian government compromised at least one DNC computer system; how those hackers later accessed the DNC’s main network and targeted people outside the DNC, most famously Clinton campaign chairman John Podesta; and how “by last summer . . . Democrats watched in helpless fury as their private emails and confidential documents appeared online day after day—procured by Russian intelligence agents, posted on WikiLeaks and other websites, then eagerly reported on by the American media.”[3]

Times reporters Eric Lipton, David Sanger, and Scott Shane co-wrote the story, and Shane wrote the “de facto instrument” line. “I actually thought I was being a little provocative, wondering whether the editors might question it or push back, or suggest different wording, but no one did,” Shane told me. He added that the email disclosures prompted a number of conversations in the Times newsroom about the paper’s standards for using material of questionable sourcing: “There’s been no agreement, but the main thing we’ve been talking about is the role of a source’s motives in our decision to publish—whether we need to consider motives or just make an independent judgment about newsworthiness and publish when information passes that test.” The latter has been the paper’s conventional practice, Shane said. “But if you stick to that, you accept that you put yourself at the mercy of entities like foreign intelligence services that count on you to do that.”

Sanger shared those concerns, telling Frontline in January that the press, again including the Times, was a “handmaiden” to efforts to disrupt the election.[4] “[The] emails couldn’t be ignored as news,” he said. “But in writing about [them], you’re doing the work that Vladimir Putin had in mind.” That reality wasn’t lost on Times executive editor Dean Baquet, either. He told the BBC he had misgivings about doing Putin’s bidding.[5] “Will I lose a little sleep because I’m being manipulated?” he asked. “Yeah.” But he said he would lose even more if he knew he was sitting on accurate information the voting public needed to know. “At what point is my safe at home filled with information I can’t report,” Baquet wondered, “because I’m nervous about the source?”

Shane’s “de facto instrument” line set off a wider exchange, inside the media and out, aimed at that very question. Aaron Blake, writing at The Fix in The Washington Post, asked, “Do we ignore hacked emails until we can determine their origins? . . . I’m skeptical that the emails could truly have been ignored.” [6] At the Los Angeles Times, Washington bureau chief David Lauter, dismissing the idea that the press unwittingly aided Russia, said in an interview, “It’s hard for me to accept the argument that our role is to hide information that voters might find probative because we don’t like the source.”[7] Jay Caruso, in a post for the conservative political blog RedState, said questioning whether to report on the Democrats’ emails betrayed a double standard in the press.[8] “If the situation were reversed and it was [the RNC] coordinating with Marco Rubio,” Caruso wrote, “there’d be no hesitation on the part of the media to report it. . . . It wouldn’t matter if Kim Jong-un were caught on film handing the documents to Julian Assange.”

Not everyone, however, was source agnostic; some argued that the press should have moderated or better contextualized its email coverage to sound out the source’s motives. Others, like top Clinton campaign aide Jennifer Palmieri, whose emails were exposed by WikiLeaks and critiqued by journalists, suggested the emails were not fair game because they had been stolen.[9] And for its part, the White House approved of Shane’s “de facto instrument” line.[10] Press Secretary Josh Earnest said during a December 14 briefing that “independent news organizations” may make their own “editorial decisions” about covering “stolen” material, but “the excellent report . . . in [the Times] makes clear that news organizations in the United States essentially became the arms of Russian intelligence.”

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A few days later, President Obama characterized the news coverage of the emails as “an obsession,”[11] saying the press fixated on “. . . every single leak about every little juicy tidbit of political gossip, including John Podesta’s risotto recipe,” a reference to a hacked and leaked email thread in which the campaign chairman shared his thoughts on the best techniques to prepare risotto.[12] Obama said the press paid too much attention to the emails, at the expense of more substantive coverage: “. . . it’s worth us reflecting how it is that a presidential election of such importance, . . . with so many big issues at stake and such a contrast between the candidates, came to be dominated by a bunch of these leaks.”[13]

Some news consumers agreed. In October, nearly two months before Lipton, Sanger, and Shane wrote their Times story, the NPR ombudsman and public editor, Elizabeth Jensen, reported that her office had received many notes from readers and listeners who felt that NPR had not covered, or covered well, the contents of the hacked emails.[14] In a column, Jensen said the central issue is “whether transparency—the disclosure by NPR that it cannot confirm the authenticity of the emails . . . is enough to tip the balance in favor of reporting about them.”

Political historian Allan J. Lichtman, profiled several times during the campaign because he developed a system that has predicted the outcomes of all presidential elections since 1984,[15] including Trump’s victory,[16] roasted the press for covering the emails. He argued, in an October 26 opinion piece for The Hill, that journalists were “rigging” the election “in favor of Trump by swallowing hook, line, and sinker Russia’s efforts to boost his campaign.”[17] He admonished the press not to use the emails, citing, of all people, Senator Marco Rubio—who had said days earlier that the leaks represented a foreign government’s attempt to interfere in the election. “I want to warn my fellow Republicans who may want to capitalize politically on these leaks,” Rubio said in a statement. “Today it is the Democrats. Tomorrow it could be us.”[18] Hours later, former Texas Governor Rick Perry, working the room as a Trump surrogate at the third presidential debate, said, “I don’t really care what [Rubio] thinks. [H]e should be greatly concerned that the media is being in a bit of a collusion with the Clinton campaign. . . . How [the emails] got there is not as big of a concern to me as what the emails say.”[19]


Shane’s “de facto instrument”
line, as the Times itself later reported, “was an unusually blunt assessment” of the press’s performance covering the emails—of the role journalists played in publicizing the contents of stolen materials and doing as Russia expected them to do, to Trump’s apparent advantage.[20] The debate about reporting on such materials, whether hacked or otherwise stolen, has many antecedents—as does the debate about reporting on information released without authorization.[21]

When WikiLeaks began publishing classified US documents about the Iraq and Afghanistan wars and US diplomatic efforts worldwide,[22] the site’s founder, Julian Assange, clashed with journalists and others about the necessity of redactions.[23] Edward Snowden shared classified materials with journalists who pored over them to identify which were newsworthy and not likely to cause significant harm if published.[24] Many editors struggled to find a clear path for covering the personal information stolen from Sony and leaked by hackers associated with North Korea.[25] The Times published Trump’s 1995 tax return even though it didn’t know the source’s identity or motives.[26] Daniel Ellsberg leaked the Pentagon Papers to expose what he considered irresponsible escalations of an unwinnable war.[27] The list goes on.

This article’s goal is to explore the legal and ethical propriety of reporting on stolen materials like the Democratic leaders’ private communications. To that end, the first part provides context by reviewing the news coverage of the 2016 presidential election and what is known about Russian involvement in the hacks and leaks. The second part examines the legal and ethical issues around publishing stolen materials and reporting on them. The article shows that the First Amendment would preempt, or otherwise provide a defense to, most claims against the press (and WikiLeaks) for publishing or reporting on the emails. And it shows that ethically the emails that generated coverage mostly did merit it—but that it was a missed opportunity that the coverage was not more informative and proportional, falling short of journalism’s social responsibility. The article also distills various ethical principles into a general rule to guide publication decisions regarding materials of questionable sourcing.

I recognize the manifest difficulty of globally critiquing an institution as diverse as the press. Or, as Washington Post media columnist Margaret Sullivan said in an interview, “It’s hard to talk about the press or the media in general. We have to ask, Are we talking about The New York Times and The Washington Post and The Wall Street Journal, or are we talking about CNN or The National Inquirer or BuzzFeed or Breitbart?” Her colleague Paul Farhi made the same point in a September 23 piece: “There are hundreds of broadcast and cable TV networks, a thousand or so local TV stations, a few thousand magazines and newspapers, several thousand radio stations and roughly a gazillion websites, blogs, newsletters and podcasts. . . . this vast array of news and information sources . . . helps define what’s wrong with referring to ‘the media.’”[28]

But even so, it’s fair to say the overall election coverage contributed to an atmosphere, shaped in different ways by Trump, that coverage of the hacked emails fell into. A few themes are apparent: The coverage focused on controversies that were not always put into perspective; Trump loomed so large in story framing that Clinton and others were often defined through him; punditry polluted reporting on the cable networks; and misleading and false claims found refuge in many places, including mainstream news coverage. Add to that the hacked-emails coverage, which didn’t adequately contextualize or judge the significance of their contents, and you begin to wonder if journalists were not only a “de facto instrument of Russian intelligence” but also a watchdog that struggled to direct or moderate its bark.

All the News That’s Fit to Leak

If a week is a long time in politics, as the saying goes, then Clinton had an everlasting fall and summer—punctuated by the end of her bid to make history as the first female president.

“After nearly a quarter-century in the nation’s consciousness,” the Post said in its signature story November 9, “Clinton had become a walking paradox, a Rorschach test of what defines character and values.”[29] And apparently voters didn’t like what they saw. As the Times reported that day about her defeat, “Over and over, Mrs. Clinton’s weaknesses as a candidate were exposed. She failed to excite voters hungry for change. She struggled to build trust with Americans. . . . And she strained to make a persuasive case for herself as a champion of the economically downtrodden.”[30]

A full explication of the reasons Clinton lost is beyond this article’s scope, but one reason she failed to build trust is not: The email controversy. Actually, controversies. First, in March 2015, the Times broke the story that Clinton had used a personal email server to conduct official business as secretary of state,[31] a misstep that would come to command the narrative around her campaign. Although she was not the first high-ranking official to use a personal server, the Times said the revelation “[echoed] longstanding criticisms directed at both the former secretary and . . . President Bill Clinton for a lack of transparency and inclination toward secrecy.”

Clinton initially defended her email practices, before apologizing and saying that using the private server was a mistake.[32] Meanwhile, the FBI began investigating whether she or her aides had improperly stored classified information on the server, and eventually, in July 2016, FBI Director James Comey announced that they had done so and had been “extremely careless”—but that no “reasonable prosecutor” would bring charges. [33] In turn, the attorney general declined to do so.[34]

Before the election, however, on October 28, Comey sent a letter to Congress saying emails pertinent to the closed investigation had been discovered in an unrelated case and the FBI would review them.[35] A departure from longstanding policies against discussing ongoing investigations or appearing to interfere in elections, the letter set off a political firestorm.[36] Nine days later, on November 6, after “wild, false speculation about looming indictments and shocking discoveries in the emails,” Comey told Congress there was no new evidence to warrant charges.[37]

That’s the CliffsNotes version of just one email controversy. The second—the focus of this article—came in two main parts:

  1. WikiLeaks published, on July 22, 2016, a total of 44,053 emails, containing 17,761 attachments, from the accounts of DNC officials.[38]
  2.  On October 7, 2016, WikiLeaks began publishing—daily—thousands more emails from a Gmail account belonging to Clinton’s campaign manager, Podesta.[39]

WikiLeaks refused to reveal the source of the emails,[40] and a self-styled hacker named Guccifer 2.0 quickly took credit.[41] The Times, however, reported in late July 2016 that US intelligence agencies had “high confidence” that the DNC hack was the work of Russian operatives.[42] The agencies and private cybersecurity experts ultimately reached the same conclusion about the Podesta disclosures.[43] To read the authoritative account of the Russian efforts to disrupt the election—the Lipton-Sanger-Shane piece that included the “de facto instrument” line—is to bring to life in some ways the mathematician Edward Lorenz’s 1972 lecture “Does the flap of a butterfly’s wings in Brazil set off a tornado in Texas?”[44] A series of seemingly small mistakes and missed signals produced dramatic results.

When an FBI agent called the DNC in late 2015 to say that one of its computer systems had been compromised by a Russian cyberespionage team, the tech-support contractor who took the call didn’t move swiftly to expel the threat.[45] The contractor, not sure that the person claiming to be an FBI agent was one, ignored a number of follow-up calls from the agent. So the hackers went on to gain access to the main DNC network and “roam freely through [it]” for months, a span in which a second group of Russian-linked hackers also began targeting the DNC and other top Democrats. Each group was unaware of the other’s presence. But how did they get in?

Identifying cyberattackers is difficult. That’s likely one reason for the critical response to the report released in December 2016 from the FBI and Department of Homeland Security regarding Russia’s cyberespionage techniques and efforts to interfere in the election.[46] It drew fire from some cybersecurity experts who questioned its evidence and methodology.[47] But generally its conclusions tracked those of the cybersecurity community writ large.[48] The Russian hacker groups mostly used spear-phishing emails to enter the DNC systems and networks and to gain access to other accounts, like Podesta’s. Russia has denied involvement,[49] and US officials believe the hackers obtained emails from Republican systems, too, but so far none has been leaked.[50]

Then, in another lesson in Lorenz’s butterfly effect, Podesta received an email in March 2016 warning him that an unauthorized person had tried to access his Gmail account.[51] It asked him to reset his password by following a link to what purportedly was a Google page. An aide forwarded the email, for review, to a computer technician, who responded, “This is a legitimate email.” He added that Podesta should change his password and enhance his account security, directing him to a page on google.com. Reportedly, the technician meant to call the email “illegitimate,” an error that unlocked 10 years of emails, totaling roughly 60,000, on the campaign chief’s account.

In June 2016, the DNC revealed to the Post that it had been hacked. And the next day the email dumps began—first by Guccifer 2.0, believed to be a persona created by Russian intelligence; later by a site called DCLeaks.com that looked like a “clumsy front for the same Russians who had stolen the documents”; and finally by WikiLeaks, the high-profile site that made its name releasing classified documents about US diplomacy and the Iraq and Afghanistan wars. The fallout was enormous.

The July disclosures, just three days before the start of the Democratic National Convention, showed that some DNC officials preferred Clinton over Sanders and had discussed strategies to undermine his campaign. Sanders urged the DNC chairwoman to resign, and she did later that day. At the same time Trump, the newly minted Republican nominee, praised the disclosures on Twitter and in speeches. News coverage of the emails was extensive and unflattering. A typical story would characterize the emails in general and then excerpt one or more of them. Some emails included personal information, like Social Security numbers and credit card data, though the mainstream press didn’t print them.[52]

WikiLeaks’s October disclosures, which began the very day the video surfaced of Trump bragging about sexually assaulting women, “provided material for countless news reports.”[53] They explored speeches Clinton gave to Wall Street banks, questions about donations to the Clinton Foundation, Podesta’s thoughts on risotto, and all kinds of infighting. The coverage was voluminous and unrelenting—and again a typical story would characterize the emails in general, then excerpt one or more of them. The daily drip intensified the negative attention on Clinton in the campaign’s denouement. And it raised questions about WikiLeaks.

Neera Tanden, a prominent Clinton supporter, said WikiLeaks wanted to damage Clinton’s campaign: “If you care about transparency,” she said, “you put all of the emails out at once. But they wanted to hurt her. So they put them out 1,800 to 3,000 a day.”[54] Assange has said that WikiLeaks “makes its decisions based on newsworthiness,” brushing aside suggestions that his animus toward Clinton shaped how the emails were published. But he also said in a June 2016 interview that he hoped the emails would “harm” Clinton’s “chances to win the presidency.”[55] And he said, in the same interview, that he had timed the July disclosures to the Democratic convention. Before that, in February 2016, Assange wrote on WikiLeaks that Clinton “lacks judgment” and that a “vote . . . for . . . Clinton is a vote for endless, stupid war.”[56]

It’s hard to know anymore what to make of WikiLeaks, even acknowledging that some of the email disclosures served the public interest, a point that is taken up in the next part of this article. For now, consider what these journalists said to me about their impressions of the site and its founder:

Shane, of the Times, who helped the paper collaborate with Assange to publish the US diplomatic cables that WikiLeaks had obtained in 2010:

Assange is hard to judge, but it appears from his public statements during the election year that he opposed Clinton, and he’s obviously been friendly to Russia. So in that sense, there appear to be in play elements of a political agenda that Assange has denied. Also, I think of WikiLeaks as an organization created as a consequence of technological change. The fact that a leaker can now leak with great ease thousands of documents, whereas before it was difficult to leak even a dozen—that’s what has made WikiLeaks possible. It has raised repeatedly the question: “What’s the difference between a traditional news organization and them?”

 Andy Greenberg, of Wired, who wrote the 2012 book This Machine Kills Secrets: How WikiLeakers, Cypherpunks, and Hacktivists Aim to Free the World’s Information:

WikiLeaks is definitely at the radical end of the transparency spectrum. That has been most understandable in ends-justifies-the-means situations, when he was an ends-justify-the-means radical publishing about the wars in Iraq and Afghanistan. The DNC revelations are not admirable in the ends or the means. The means is that he published Podesta’s risotto recipe and the credit card information of donors; and for the ends, he helped elect Trump, who stands for nothing Assange stands for. The ultimate betrayal would be if Assange, now that Trump is in power, ignored or failed to publish Trump’s secrets, after spending years doing his best to publish a Democratic administration’s secrets.

In any case, news organizations mined the WikiLeaks disclosures for stories, and indeed they produced many hundreds of them—ultimately prompting President Obama, as the introduction noted, to characterize the coverage as “an obsession.” But before delving into those stories, it’s useful to take a wider look at the election coverage. Thomas Patterson, of Harvard’s Shorenstein Center, conducted several studies throughout the election that showed certain complexions in Clinton’s coverage that made for a difficult environment for her. [57] One of the studies, released in June,[58] analyzed the pre-primary period and found that “the Democratic race in 2015 received less than half the coverage of the Republican race” and that “Sanders’ campaign was largely ignored.” Trump’s coverage was more positive than negative for that period—as a “high volume” of press attention “preceded Trump’s rise in the polls,” suggesting that the press covered “Trump in a way that was unusual given his low initial polling numbers.” The study also reported that “Clinton had by far the most negative coverage of any candidate” during the pre-primary period.

Patterson’s next study, released in July,[59] analyzed the primary coverage and found that the press’s “fascination” with Trump delivered him the most press attention and ensured “that the Republican race was afforded far more coverage than the Democratic race.” Sanders especially struggled, receiving “only two-thirds of the coverage afforded Clinton” and “less than half of the coverage afforded Trump.” And substantive concerns, such as policy positions, accounted for only 10 percent of the coverage—which otherwise focused on the horse race.

A third study, released in September, reported that around the conventions Clinton got “significantly less news attention than Trump,” and her policy positions got a third of the coverage that Trump’s did.[60] The tone of their coverage was negative. A big difference, though, was that “Clinton had a news category entirely of her own—the emails she sent and received as secretary of state.” They made up 8 percent of her coverage, twice the amount of her policy positions. Other scandals made up another 3 percent, meaning that a “full tenth of Clinton’s coverage . . . revolved around allegations of wrongdoing.”

And, finally, a December study analyzing general election coverage concluded that, like other modern presidential elections, not one week “passed where [Trump’s and Clinton’s] coverage reached . . . positive territory,”[61] referring to its tone. “To journalists,” the study commented, “the real issues . . . are not the candidates’ policy commitments but . . . the controversies that ensnare them,” which made up one in six news reports. Moreover, the study found that “week after week Trump got more press attention than did Clinton,” and Trump “had more opportunities to define Clinton than she had to define him.”

However, Clinton’s controversies received more attention than Trump’s. They made up 16 percent of her general election coverage, i.e., “four times the amount of press attention paid to Trump’s treatment of women and sixteen times the amount [paid to her] most heavily covered policy position.” No aspect of her coverage was more negative than that of the controversies around her campaign. There “was no week in which [a scandal] accounted for less than 7 percent of her coverage,” and “in the campaign’s final week [allegations and scandals] consumed more than a third” of her coverage, the study found. And with the exception of the Post, no news organization “made a concerted effort to put the allegations in context.”

All of which had consequences, as FiveThirtyEight’s Nate Silver wrote in January:

. . . voter preferences varied substantially based on news events, and the news cycle ended on a downturn for Clinton. As a result, public opinion was sensitive to news coverage and events such as debates, with Clinton holding a national polling lead of as much as 6 to 8 percentage points over Trump in most of June, August, and October, but Trump within striking distance in most of July, September, and (crucially) November. Late-deciding voters broke strongly toward Trump in the final two weeks of the campaign, amid a news cycle dominated by discussion of the Comey letter and the WikiLeaks hack of Democratic emails.[62]

In those two weeks, the press reported eagerly and at times breathlessly on the hacked emails, using them daily to denude a candidate long seen as secretive. And her campaign mostly failed to contain the damage, in spite of refusing to confirm the emails’ authenticity and casting doubt on them by questioning the source’s motives or by admonishing the press about their news value or their taint as stolen materials. None of it was enough. It didn’t stanch the disclosures or quiet the press’s interest. Many questions remain unanswered about the hacks and leaks, but one thing is clear: They’re unlikely to be the last disclosures that put journalists in the position of reporting on materials of questionable sourcing and even becoming a “de facto instrument” in some other party’s ambitious plans.

 

The legal and ethical propriety of reporting on stolen materials

The revelations came one after the other in the weeks before Arizona Republic columnist EJ Montini accused the press in October of “trafficking in stolen goods.”[63] A longtime Bill Clinton aide had said Chelsea was “acting like a spoiled brat.”[64] Hillary had said in a paid speech at a Goldman Sachs event that her “economic fortunes” had “removed” her from her “solid middle-class upbringing.”[65] Interim DNC chairwoman Donna Brazile, also a CNN pundit, had shared with the Clinton camp a policy question ahead of a CNN town hall.[66]

Each of those revelations emerged from the Podesta emails, which to Montini amounted to “stolen property from an unknown thief.”[67] He wrote October 22 that “the emails were taken illegally” and noted various statutes making it a crime to receive or traffic in stolen goods, reasoning that news organizations could be liable for reporting on the emails. He also asked: “Is there a greater good here? How do we justify that? . . . Who elected us the final arbiter of such a thing? Is it simply because the courts allow us to get away with it?”

The law: “A stranger’s illegal conduct”

Not to bury the lede: The press generally has the right to report on stolen materials. But that right, like all rights, is not absolute—and its scope is more complicated than meets the eye. So let’s review the relevant precedents and doctrines to understand the First Amendment’s application here.

The starting point is recognizing that the Supreme Court has read the First Amendment to mean that “truthful information about a matter of public significance” gets broad protection from civil and criminal causes of action.[68] And as the Court put it in the classic case Time, Inc. v. Hill, “The guarantees for speech and press are not the preserve of political expression or comment upon public affairs.”[69] In other words, according to the Restatement (Second) of Torts, an influential legal treatise:

A matter of legitimate concern to the public is not limited to “news,” in the sense of reports of current events or activities. It extends also to the use of names, likenesses or facts in giving information to the public for purposes of education, amusement or enlightenment, when the public may reasonably be expected to have a legitimate interest in what is published.[70]

That interest expires if there is nothing more to it than “the voyeuristic thrill of penetrating the wall of privacy that surrounds a stranger,”[71] or if the interest represents only “a morbid and sensational prying into private lives for its own sake.”[72]

That being said, the protection to report truthfully about legitimate public concerns does not depend on the perceived value of the information published,[73] and it may be limited “only in exceptional cases.”[74] So far, the Court has said they include the rare occasions “when the country is at war, when a sovereign seeks to protect the primary requirements of decency by prohibiting obscenity, and when the security of community life is threatened by incitements to acts of violence and the overthrow by force of an orderly government.”[75]

Notably, several times the Supreme Court has heard cases involving privacy claims against the press, testing the “exceptional cases” principle, and in each one the First Amendment has protected truthful speech about legitimate public concerns.[76] In Cox Broadcasting v. Cohn (1975), a rape-murder victim’s father sued a broadcaster for invasion of privacy for reporting his daughter’s name, violating a state law.[77] The justices said the privacy interest had to yield to the “public interest . . . in the dissemination of truth,” reasoning that the commission of a crime and the facts surrounding its prosecution, including the victim’s identity, were newsworthy.[78]

Then, in the 2001 case Bartnicki v. Vopper, the most recent Supreme Court case in this area, a radio commentator obtained an audio recording of a private phone conversation and played excerpts of it on his program.[79] A third party had surreptitiously intercepted it and provided it to the commentator, who had not played any role in the interception, although a reasonable person would have known that the recording had been intercepted. When the commentator was sued under laws forbidding the interception and use of such conversations, he argued that the First Amendment protected his use of the audio—and the Supreme Court agreed.

The parties to the telephone conversation were a union negotiator (Bartnicki) and president (Kane) involved in collective bargaining between a teachers’ union and local school board in Pennsylvania. According to the majority opinion: “In their conversation, Kane and Bartnicki discussed the timing of a proposed strike, . . . difficulties created by public comment on the negotiations, . . . and the need for a dramatic response to the board’s intransigence. At one point, Kane said: ‘If they’re not gonna move for three percent, we’re gonna have to go to their, their homes . . . To blow off their front porches, we’ll have to do some work on some of those guys.’”

The justices said Bartnicki “presented a conflict between 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.” Acknowledging the interest in private conversations, and observing that the “fear of public disclosure of private conversations might well have a chilling effect on private speech,” the Court nonetheless ruled for the commentator:

In this case, privacy concerns give way when balanced against the interest in publishing matters of public importance. As Warren and Brandeis stated in their classic law review article: “The right of privacy does not prohibit any publication of matter which is of public or general interest.” One of the costs associated with participation in public affairs is an attendant loss of privacy.

Importantly, Cox and Bartnicki, and other similar cases, make clear that their protections apply when the publisher has “lawfully obtain[ed]” the information.[80] Consider how the Court in Bartnicki framed the issue: “Where the punished publisher . . . has obtained the information . . . in a manner lawful in itself but from a source who has obtained it unlawfully, may the government punish the ensuing publication of that information based on the defect in a chain?”

The justices answered no—that “a stranger’s illegal conduct does not suffice to remove the First Amendment shield from speech about a matter of public concern.” That was true, the Court suggested, even if the press had knowledge that the source had unlawfully obtained the information.[81] However, Bartnicki was a 6–3 case in which two justices wrote separately to “emphasize the particular circumstances before [them],” namely that the public interest in the phone call was “unusually high” because it included threats. Otherwise, Bartnicki followed from Landmark Communications, Inc. v. Virginia (1978)[82] and Florida Star v. BJF (1989),[83] among others, cases that vindicated the right to use information provided or obtained improperly by sources.

Since Bartnicki, the lower courts have tested the case’s basic principles against a variety of fact patterns and have ruled consistently in favor of publishers and other distributors.[84] And even before Bartnicki, the lower courts had been protective of the First Amendment interests around the right to report truthfully on legitimate public concerns. For example, in 1969, the US Court of Appeals for the DC Circuit took up a colorful case involving a US senator.[85] Several of his former employees took materials from his office, without permission, and sent copies to reporters, who published articles based on them. The senator filed claims against the journalists for invasion of privacy and conversion, a tort that basically means the use of stolen property. The court rejected those claims and said that the information taken from the files did not “[fall] under the protection of the law of property, enforceable by a suit for conversion”—and that the publications did not constitute privacy invasions simply because they contained information that had been illegally leaked.

All of these decisions:

reflect the reality that the press routinely seeks out information from a variety of sources, many of whom may be held to have violated a statute, a private contract, or some other legal or ethical duty either in obtaining the information or by disclosing it to the press. The courts have nevertheless concluded that, when the press induces sources to disclose what they know about newsworthy matters, it is protected by the First Amendment when it proceeds to publish such information, regardless of the legality of its source’s actions.[86]

Moreover, in the criminal context, the Supreme Court has said that criminal laws restricting the exercise of First Amendment rights “must be scrutinized with particular care.”[87] Indeed, one theme of journalistic prosecutions for soliciting, receiving, or publishing information is that they can survive First Amendment scrutiny only if the charging statute is “construed to require that (1) the press conduct at issue be unrelated to communicative acts involving the transmission of information, or (2) the defendant evince some bad-faith purpose other than and beyond the intent to obtain information for the purpose of reporting it to the public.”[88]

All of those cases, taken together, developed the First Amendment principles that would likely govern a judicial review of a claim against the press for reporting on the Democrats’ private emails. Without question, the parties that conducted the hacking would not be covered by Bartnicki and would be criminally and civilly liable under a variety of statutes, among them the Stored Communications Act and the Computer Fraud and Abuse Act.[89] But the First Amendment would preempt, or otherwise provide a defense to, most claims against the press for reporting on the emails and WikiLeaks for disclosing them.

First, there is no public evidence that the mainstream press hacked the accounts or helped anyone do so, satisfying the “lawfully obtain[ed]” issue. And, recall, it doesn’t matter that the journalists knew or had reason to know that the emails were stolen. There is no public evidence, either, that the emails contained classified information, foreclosing that source of liability.[90]

Second, some emails would have fallen short of the “legitimate public concern” bar (e.g., Podesta’s thoughts on risotto), but most of the emails that generated coverage, even if the coverage lacked context or was deficient (a point discussed below), would have cleared the bar. The quality of the coverage isn’t dispositive, just the legitimacy of the interest in the information—and most of the emails reported on did “shed light on the inner workings of a major presidential campaign,”[91] including its position on the Keystone Pipeline, Clinton’s economic views and Wall Street connections, various Clinton Foundation activities, and the relationships among top aides and journalists.

Notably, the First Amendment principles that generally protect the press’s right to report on the hacked emails also protect the Times story that included excerpts of Trump’s tax returns, provided to the paper by an anonymous source certainly not authorized to release them—and the airings of the Access Hollywood video, surely supplied in violation of a nondisclosure agreement.

Courts are deferential to the mainstream press’s judgment about what’s newsworthy, and the key to understanding Bartnicki is to see that it requires that “privacy concerns give way when balanced against the interest in publishing matters of public importance.”[92] In that sense, Bartnicki:

creates a bright­line rule that respects the fundamental division of labor established by our Constitution, one that delineates between those tasked with protecting their own privacy and those tasked with keeping the public informed. The law permits individuals, even powerful individuals, to make efforts to control what information about them is shared with the public. But, at the same time, the law does not, and under the Constitution cannot, require the press to defer to those efforts to prevent the public from learning information about matters of public concern.[93]

However, some claims have a chance. For one, disclosure of private facts, a legal theory that allows a party to recover damages if another discloses private or intimate information about him or her that lacks news value and whose disclosure would be offensive to an ordinary person.[94]

Some of the emails contained personal information like Social Security numbers and credit card data. It would be difficult to argue that those revelations addressed a legitimate public concern. Indeed, they resemble “the voyeuristic thrill of penetrating the wall of privacy that surrounds a stranger.”[95] That would put a claim on those facts outside of Bartnicki’s scope.

But the mainstream press, to my knowledge, didn’t publish the Social Security numbers or credit card data, and even if an outlet did, the claim would probably fail because the law typically allows—it’s a state claim that varies from place to place—the plaintiff to sue only the first party to disclose the information to a large number of people. WikiLeaks, then, would be the best defendant, and jurisdictional issues would complicate any suit against it or Assange.

Second, a copyright claim, also outside of Bartnicki’s scope. It’s not impossible that a news story excerpting one of the emails would create infringement liability. Copyright law protects “original works of authorship fixed in any tangible medium of expression,”[96] nominal criteria that can include email content. That means a creator could sue a news organization for excerpting the content (e.g., if an email contained a draft speech or essay). In 1985, the Supreme Court ruled that The Nation was liable for infringement after it obtained and published, without authorization, roughly 300 words of Gerald Ford’s unpublished memoir manuscript.[97]

However, the fair use doctrine could kick in. It permits the use of a copyrighted work without the creator’s authorization,[98] and it would likely protect the stories that excerpted the email contents—because the excerpts that I saw were short, used for a news purpose, and unlikely to affect the (nonexistent) value of the contents in the marketplace. Those are three of the four fair-use criteria. (The other criterion, which might favor the creator under these circumstances, is the nature of the copyrighted work and whether it was unpublished, giving it greater protection from infringement.) Plus, many stories put into their own words the facts laid bare in the emails, and that’s not a copyright problem, putting facts into your own words.[99]

Third, trade secrets. Bartnicki’s majority opinion included this line: “We need not decide whether that interest [privacy of communications] is strong enough to justify the application of [the wiretap law] to disclosures of trade secrets or domestic gossip or other information of purely private concern.”[100] The “purely private concern” reference might apply well to the revelations of Social Security numbers and credit card data (even information like Podesta’s risotto recipe), but more to the point here is the “trade secrets” reference.

The definition of a trade secret varies by state, and it’s not always clear what information, to a particular company, is a trade secret. Nor is it clear, under Bartnicki, the First Amendment protection for publishing a lawfully obtained one that is a legitimate public concern. Some states follow a rule similar to that of disclosure of private facts, allowing the plaintiff to sue only the first party to disclose the trade secret, meaning again that the best defendant might be WikiLeaks—and/or its source(s).

Another possible but unlikely source of liability is defamation: If an email included a false statement of fact about a person that harmed his or her reputation and caused damages, then publishing the email, or reporting on it, would trigger the republication rule—which holds liable any party that repeats a defamatory statement made by someone else, unless a privilege applies (one could here).[101] But more importantly, it is “possible but unlikely” because the hacked emails that generated news coverage mostly involved the expression of opinions, protected by the First Amendment, or of factual statements about public officials and public figures. The latter conjures the classic case New York Times v. Sullivan, “consider[ed] . . . against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks.”[102] Sullivan and its progeny are highly protective of speech, even statements that turn out to be incorrect, about public officials and public figures.

All of which means, again, that the First Amendment would preempt, or otherwise provide a defense to, most claims against the press (and WikiLeaks) for reporting on the emails. As the Bartnicki majority concluded, quoting Daily Mail: “action to punish the publication of truthful information seldom can satisfy constitutional standards.”[103]

Ethics: “You’re buying judgment”  

If journalists generally have the right to report on the Democrats’ private emails, should they? And if so, how? To answer those questions, it’s useful as a threshold matter to note that moral reasoning is a systematic process—one in which journalists and editors must consider a variety of values and principles, sometimes competing, to arrive at a defensible decision.[104] Most news organizations follow ethical guidelines that they or industry groups have created to set out the values and principles they believe are essential.[105]

One challenge here is the practice of deducing consistent conclusions from the guidelines,[106] a challenge familiar to any lawyer: The guidelines, rather than being clear and complete, are riddled by conflicts and ambiguities—and they’re informed by everything from surveys and focus groups to the ideas of 18th-century philosophers like John Stuart Mill.[107] Journalistic moral reasoning can seem incurably indeterminate, but it does need pliant characteristics to be useful across a fast-changing news environment.

Deni Elliott, a media ethicist, has identified three shared journalistic values that apply across culture and time: (1) journalists aim to publish stories that are balanced, accurate, relevant, and complete; (2) they aim to publish them without causing preventable harm; and (3) they aim to give citizens information they need for self-governance, the defining principle that “justifies causing harm in the production of news stories.” Those shared values inform journalism’s social responsibility.[108]

Perhaps more familiar are Bill Kovach’s and Tom Rosenstiel’s “Elements of Journalism,”[109] some of which apply with special force to reporting on stolen materials: “Journalism’s first obligation is to the truth,” which means providing information in context, with source transparency; “Its first loyalty is to citizens,” which means the public interest is supremely important; “Its essence is a discipline of verification,” which requires journalists to test the information they gather; “It must serve as an independent monitor of power,” which places on journalists the duty to be watchdogs and not act frivolously; and “It must keep the news comprehensive and proportional,” which is a factor of truthfulness.

Many of those principles are reflected, too, in the SPJ Code of Ethics, which counsels journalists to “provide context” and “identify sources clearly”; to “consider sources’ motives before promising anonymity”; to “balance the public’s need for information against potential harm or discomfort”; to “recognize that legal access to information differs from an ethical justification to publish”; to “realize that private people have a greater right to control information about themselves than public figures”; and to “avoid pandering to lurid curiosity, even if others do.”[110]

Based on a wide review of the hacked-emails news coverage, and interviews with a dozen journalists and media critics or scholars,[111] it’s clear the press missed the mark in much of its coverage of the emails. The typical story reported on the juiciest information released a certain day or week, usually with a caveat about the sourcing[112]—but sometimes not.[113] The juiciest items were not always the most consequential. For example, one that generated massive coverage was the email revealing Podesta’s thoughts on risotto.[114] Another was about an email thread in which DNC staffers dished on an Ariana Grande video showing the pop star licking donuts and saying she hates America.[115] Yet another was about an email exchange involving a Blink-182 guitarist and UFOs.[116] Those stories often were framed as novelties but in the aggregate received the volume of coverage better suited for a major, consequential issue.

Other stories did, however, pull back the curtain on the campaign and issues around it. On the frivolous side, many reported on bickering and backstabbing among top aides, such as Podesta and Clinton confidante Philippe Reines.[117] Another confirmed that Bill Clinton and Al Gore didn’t like each other.[118] And another revealed that the Los Angeles mayor was upset that Clinton hadn’t called him about a potential VP nomination.[119] On the serious side, many outlets reported that the king of Morocco offered, when Clinton was not secretary of state, to donate $12 million to the Clinton Foundation if she would attend a meeting, raising again the specter of the foundation as a pay-for-play scheme.[120] Numerous stories dug into the paid speeches she gave to Wall Street banks.[121] And many reported that the campaign, and one top aide in particular, worried that the private-server controversy was becoming “a character problem.”[122]

Overall, the biggest deficiency in the email coverage, based on my review of it and the interviews I conducted, was the failure to contextualize the contents and to judge their significance. That might not have been a big problem for a frivolous story, because by definition it was superficial—but the implications were big for a serious story, which had the chance to be informative about a legitimate public concern. Consider, for example, a CBS story October 25 under the headline “WikiLeaks emails: Clinton aide says Obama had emails from Clinton’s private account.”[123]

It reported that Obama said during an interview that he had “heard about Clinton’s private email server through news reports in March 2015—but an email from a Clinton aide around that [time] suggests the president was emailing Clinton on her private address.” The story also reported charges by Trump that Obama should be investigated and mentioned that the “State Department said that it had withheld eight email chains that added up to 18 messages between the president and Clinton,” citing an AP report. The story quoted the email and said it was posted by WikiLeaks and “hacked” from Podesta’s account. It also said that Clinton’s campaign had “not confirmed the authenticity” of the “emails posted by WikiLeaks,” which had been posting “batches of Podesta’s emails nearly daily in the last few weeks.”

However, the story did not discuss the likely source of the emails, at that time widely reported to be Russian operatives, nor did it discuss any background information about Clinton’s use of a personal server (e.g., that she wasn’t the first high-ranking official to use one, that she initially defended her practices and later apologized for them, that the FBI had investigated her server use and had announced in July that no “reasonable prosecutor” would bring charges, etc.). The story also didn’t explain the meaning of the State Department line. As a whole, it was a missed opportunity to inform readers meaningfully about an important matter.

More broadly, the frivolous stories in general, and the lack of context and judgment in too many serious stories, combined with the daily drip of disclosures throughout the fall, made for a scandal-charged final lap for Clinton. And by extension the email coverage, lacking context and judgment, was not always proportional.

Consider these comments:

Michael Calderone, The Huffington Post:

One of the lessons from the Podesta emails is that many of them didn’t rise to the level of importance that would merit major attention in the final stretch of a presidential election. I read thousands of the emails to look for compelling media stories, and voyeuristically it’s interesting to see the conversations that take place among journalists and political operatives—and to see that some journalists are obsequious when trying to gain access to certain people. It’s fair to look at these things. But I didn’t find much of what was there to be a major story or evidence of a grand conspiracy. There were valid stories, but a lot of them were not consequential.

David Folkenflik, NPR:

“The political chattering classes were all about this. Following discussions online and on Twitter, every little thing showing that the people running this powerful presidential campaign could behave like catty high schoolers—it was all pored over and dissected by people between Washington and New York. It was a huge distraction. And even if The New York Times didn’t cover every ebb and flow of it, someone somewhere would. It’s not like Breitbart was looking to show restraint, or The Daily Caller, or even Politico. Ultimately, the Clinton campaign, every day, was responding to, “Hey, here’s a hack, here’s a new thing, what is it about?” And if those were a 17 on a scale of 1 to 100, they still had to respond. The aggregate revelations reminded people of her email server, which in and of itself is not that sexy of a scandal.”

It was generally principled—for the reasons discussed below—to cover the emails that “shed light on the inner workings of a major presidential campaign,”[124] the essence of a legitimate public concern. For those emails, the primary issue was not whether to cover them but how. And running through all these decisions is the recognition that “journalists literally make news,” as media sociologist Michael Schudson has said. “They do not find it. They do not publish transcripts of reality. Even in their best efforts, they would not provide a copy of reality, but reality in a frame, reality enhanced, reality reconfigured by being heightened on a page or a screen, reality retouched by the magic of publication itself.”[125]

Or, as the Post’s Sullivan said in an interview, “There is a gatekeeper role that is important to observe. We all have an appetite for [the information], but we have to be responsible about what we’re publishing.” That reminded me of a Punch Sulzberger line from a post-retirement interview he did: “You’re not buying news when you buy The New York Times. You’re buying judgment.”[126]

That judgment, however, hasn’t always come easy. As the Nieman Lab’s Helen Lewis wrote in 2015, the Sony hack seemed to confound the Times.[127] Hackers believed to be tied to North Korea breached Sony Pictures’ computer systems in 2014, stole private materials, and published them online—apparently because the North Korean government was upset about the Sony film “The Interview,” a comedy about an assassination plot against Kim Jong-un.[128] At any rate, Baquet said the Times would report on specific material only after other news outlets had covered it, and Aaron Sorkin wrote an op-ed for the Times calling the reporting on the material “morally treasonous and spectacularly dishonorable.”[129] Sullivan, then the Times public editor, later wrote that at least some of the material was newsworthy and able to be covered.[130] Of her newsroom colleagues, she wrote:

In short, they must use a crazy little thing called news judgment. Stories about Angelina Jolie being called a “spoiled brat” don’t clear the bar; two top American entertainment executives making racially tinged jokes, from their corporate email accounts, about the first black president’s taste in films? Free speech cuts both ways. They have the right to say it, and maybe the public ought to know they did.

At the other end of the spectrum, as Lewis pointed out, Gawker dedicated a microsite to the materials to host them.[131] The reporter who led the coverage told Lewis the hack was a huge story, worthy of immersion. “It exposed the way an enormous, publicly traded multinational company functions and revealed a lot about the people making decisions at an institution of huge cultural power,” he said. “If that’s not newsworthy, I don’t know what is.”[132] Gawker’s sister site, Jezebel, ran many stories using the materials, too, including one headlined “This Is Amazing Amy Pascal’s Cheap, Crotch-Intensive Beauty Regimen,” featuring a selection of former Sony chairperson Amy Pascal’s Amazon orders.

Turning back to the DNC/Podesta emails, the chief tension here lies in the value of personal privacy and the value of speaking out on a legitimate public concern. Another is the value of minimizing harm, generally. And yet another is the problem of theft—i.e., the use of stolen materials. To the latter, some ethical perspectives say stealing or using another’s property is unacceptable no matter the circumstances. Kant’s categorical imperative is a fine example, because it makes clear that individuals do not permit for themselves what they do not wish to make a universal law—so even if enormous good could come from committing bad acts, it would be unacceptable to commit them.[133]

However, more useful under the circumstances—to address journalism practices that involve competing values—is Mill’s principle of utility. It holds that the morally right choice will produce the greatest balance of good over evil, on the basis of the greatest good in a specific case or in promoting the general welfare.[134] In the abstract, informing the electorate about a presidential election, even if it required the use of stolen emails, would produce ample good. And in the abstract, using those emails would cause harm by invading the privacy interests of the account holders, considered with an eye toward the strength of those interests (based on, say, the individuals’ status as public or private figures and the nature of the information). And, of course, news organizations would be required to consider any other harm that could result from publishing, and all of this assumes that the press played no role itself in unlawfully obtaining the information.

Distilling all of these principles into a general rule to be applied on a case-by-case basis: It is just to publish truthful private information if:

  1. The information relates to a legitimate public concern,
  2. The public’s need for it cannot be met otherwise, and
  3. The benefit of publication outweighs the harm, analyzed by reference to the affected people and entities and to society writ large.

The preamble’s “truthful” reference points to the importance of verifying the information, part one points to the importance of evaluating the information’s newsworthiness, part two points to the significance of personal privacy, and part three points to the constant need to minimize harm.

Notice that the source is not explicitly included. Nor are the source’s motives or means of acquiring the information. The basic reason: The identity, motives, and means are not in themselves reasons to publish or not. Rather, they are germane to certain parts of the rule—to the evaluation of the information itself (e.g., to its truthfulness). Alone, then, the source’s identity, motives, and means are neither irrelevant nor determinative. Publication is not conditioned on them, but they—as embedded criteria in the rule—may be part of the reason to publish or not, because of what they mean for the information’s public value or veracity.

To adopt the opposite rule—to condition publication on source savoriness, with the intent or effect of precluding any information provided “by bad people, through bad means, for bad reasons”[135]—would needlessly kill stories based on verifiable information that is important for the public to know and whose disclosure produces more good than bad. Some examples: Barstow’s report on Trump’s 1995 tax return (unknown source).[136] The Pentagon Papers (the source took the materials without authorization).[137] Dana Priest’s work on CIA black sites that won the Pulitzer Prize (sources shared information without authorization).[138] Many Pulitzer-winning investigative stories could be listed here.

“As prosecutors and police will tell you,” Folkenflik said in an interview, “you don’t usually get information about crimes from virtuous nuns and librarians. You often get it from people who themselves are in ambiguous moral standing. That’s okay. We have to take information from all kinds of places.”

It’s also worth mentioning that the source’s identity, motives, and means may be germane to the story’s presentation, if the outlet decides to publish. In other words, they should be part of the story if they’d help the audience understand it. For example, as Wired’s Greenberg told me, “Every story that references something revealed from Podesta’s emails, or from the DNC, should include a disclaimer that it came from a hack that many security professionals believe was tied to the Russian government and passed to WikiLeaks by state intelligence agents. It’s worth knowing the contents of the emails, but we need to understand that they’re being pushed with an agenda.”

Speaking of WikiLeaks, it’s a case study in how not to curate information, insofar as the site doesn’t really curate,[139] despite saying years ago that it followed “journalism and ethical principles.”[140] In reality, as CPJ’s Joel Simon wrote in August, the site’s “style is to publish leaked material uncritically, in large data dumps, devoid of context, and without reference to the motivations of the leaker.”[141] And too many times WikiLeaks has published documents that could cause harm to people.

For example, when WikiLeaks released the Afghanistan war logs in July 2010, it withheld roughly 15,000 said to be sensitive, but it did not remove the names of Afghan intelligence sources from the documents it released.[142] In contrast, the Times, The Guardian, and Der Spiegel, which had partnered with WikiLeaks to publish stories about the logs, took steps to minimize harm and to redact the names of Afghan sources. This time around, as discussed above, the DNC email disclosures included Social Security numbers and credit card data.[143] The mainstream news organizations reporting on them have not disclosed that information.

Again, the biggest deficiency in the hacked-emails coverage was the failure to contextualize the contents and judge their significance. On the issue of publishing them in the first place, using the general rule above, some emails would have failed the “legitimate public concern” criterion (e.g., Podesta’s risotto recommendations), and others were properly withheld under the benefit-harm criterion (e.g., the emails containing the Social Security number and credit card data).

But the emails that generated coverage generally (1) did address the campaign, a legitimate public concern, (2) could not have been obtained otherwise, for obvious reasons, and (3) in the absence of classified or other sensitive information, caused the most harm to the privacy interests of the account holders, who were powerful public officials and figures operating in the context of a presidential campaign. Another notable harm, the perceived negative effect of the disclosures on the election’s outcome, has more to do with the quality of the coverage than the disclosures themselves. And to the extent the disclosures themselves implicate that harm, recall that “journalism’s first obligation is to the truth,” and “its first loyalty is to citizens”—and in the abstract informing the electorate about a presidential campaign would produce ample good as long as the information is truthful.

Which underlines the point again that the emails that generated coverage mostly did merit coverage—but it’s a missed opportunity that the coverage was not more informative and proportional. It fell short of journalism’s social responsibility by not giving citizens what they needed for competent self-governance. The failure to contextualize the contents and judge their significance also betrayed journalism’s first obligation, which includes providing information in context, with source transparency. And it abrogated the duty to “keep the news comprehensive and proportional,” as factors of truthfulness.

Conclusion: An “explosion” of leaks

Five men, one of whom said he is a former employee of the Central Intelligence Agency, were arrested at 2:30 a.m. yesterday in what authorities described as an elaborate plot to bug the offices of the Democratic National Committee here.[144]

 That’s the lede of the Post story that ran June 18, 1972, setting off a slow burn that would eventually cause Nixon to resign and reorient journalism’s relationship to government. The report, which said the prosecutor called the operation “professional” and “clandestine,” went on to note that there “was no immediate explanation as to why the five suspects would want to bug the Democratic National Committee offices or whether or not they were working for any other individuals or organizations.”

The coming months, however, would bring that explanation—when a check earmarked for the Nixon campaign found its way to a Watergate burglar’s account; when the FBI found that the break-in was part of an organized political espionage effort; when Nixon aides were convicted of crimes; when Nixon refused to turn over tapes to the Senate Watergate Committee, only to be ordered to do so by the Supreme Court; when Nixon fired the special prosecutor; and when the House Judiciary Committee passed articles of impeachment, prompting Nixon to become the only president to resign.[145]

Forty-four years after the first DNC break-in, the email hacks didn’t prompt a resignation, but they did play a role in defeating Clinton. And otherwise the parallels between the two events aren’t hard to spot, as Franklin Foer wrote for Slate:

To help win an election, the Russians broke into the virtual headquarters of the Democratic Party. The hackers installed the cyber-version of the bugging equipment that Nixon’s goons used—sitting on the DNC computers for a year, eavesdropping on everything, collecting as many scraps as possible. This is trespassing, it’s thievery, it’s a breathtaking transgression of privacy. It falls into that classic genre, the dirty trick. Yet that term feels too innocent to describe the offense. Nixon’s dirty tricksters didn’t mindlessly expose the private data of low-level staff.[146]

For government and prominent private actors, the hacks were a reminder of the threat posed by foreign cyberespionage.[147] For news consumers, the hacks were difficult to conceptualize, at least at first, because of the subtle techniques the hackers employed: “The Russians, after all, didn’t knock out a power grid,” Foer wrote. “And when the stolen information arrived, it was dressed in the ideology of WikiLeaks, which presents its exploits as . . . a kind of journalistic bravery the traditional media lacks.”[148] Then, as the story unfolded, the coverage didn’t always serve its readers well, too often offering insufficient context or analysis. And for journalists, the hacks were a lesson in judgment.

Legally, the First Amendment would preempt, or otherwise provide a defense to, most claims against the press (and WikiLeaks) for publishing or reporting on the emails. And ethically the emails that generated coverage mostly did merit it. But, again, too much of that coverage also missed an opportunity to be more informative and proportional. Better editorial judgment was needed. And just as needed now is a sustained discussion about those shortcomings and how to make these editorial decisions going forward. This article is a step in that direction. Among other things, it distills various ethical principles into a general rule to guide editorial decisions regarding materials of questionable sourcing.

This self-assessment is critical because many questions remain unanswered about the hacks and leaks, but one thing is clear: They’re unlikely to be the last disclosures that put journalists in the position of reporting on materials of questionable sourcing and even becoming a “de facto instrument” for some bad actor. After all, as Greenberg wrote in his 2012 book about WikiLeaks, the drive to spill secrets is nothing new, especially for political purposes, but the technology empowering the spillers has “entered a Cambrian explosion.”[149] Plus, the “state of the world’s information favors the leaker now more than ever.”[150] The main reason, according to a recent study, is the growing “digitalization of previously analog information (from 0.8% digital in 1986 to 94% in 2007).”[151] And a major implication, Greenberg wrote, is that the digital information “is liquid: infinitely reproducible, frictionlessly mobile—fundamentally leakable.” Add to that: hackable.

It’s almost quaint today to think of five men breaking into a building and prying open a file cabinet. In fact that—the changing nature of access to all kinds of information, including on legitimate public concerns—is going to be one of the great modern challenges for journalists. They need to have dialogues across organizations. This is not a Times or Post or CNN issue—it’s a modern practice issue. In light of the stakes, too, it’s not one the press can afford to get wrong.

And as for Shane’s “de facto instrument” line, a final thought from NPR’s Folkenflik: “It’s not an accident that Shane, a veteran national security reporter, was on that story. He had been a reporter in Moscow. Yes, the Times was used. Media were all used,” he said, adding, “These [hacks] are going to keep happening. News organizations darted after each new shiny object presented to them this time. We’re going to have to get better.”

Citations

[1] Shelley Hepworth, Vanessa Gezari, Kyle Pope, Cory Schouten, Carlett Spike, David Uberti, and Pete Vernon, “Covering Trump: An oral history of an unforgettable campaign,” Columbia Journalism Review (Nov. 22, 2016), https://www.cjr.org/special_report/trump_media_press_journalists.php.

[2] Eric Lipton, David E. Sanger and Scott Shane, “The Perfect Weapon: How Russian Cyberpower Invaded the U.S.,” The New York Times (Dec. 13, 2016), https://www.nytimes.com/2016/12/13/us/politics/russia-hack-election-dnc.html.

[3] Id.

[4] “Trump’s Road to the White House,” PBS Frontline (Jan. 24, 2017), http://www.pbs.org/wgbh/frontline/film/trumps-road-to-the-white-house/transcript/.

[5] Ian Katz, “Hacking: Truth or treason?,” BBC Newsnight (Dec. 15, 2016), http://www.bbc.com/news/world-us-canada-38303381.

[6] Aaron Blake, “Did the media become a ‘de facto instrument of Russian intelligence’?,” The Washington Post (Dec. 14, 2016), https://www.washingtonpost.com/news/the-fix/wp/2016/12/14/did-the-media-become-a-de-facto-instrument-of-russian-intelligence/?utm_term=.c93741d6e67e.

[7] Sydney Ember, “Editors Defend Coverage of Stolen Emails After News of Russian Hacks,” The New York Times (Dec. 15, 2016), https://www.nytimes.com/2016/12/15/business/media/russian-hacking-stolen-emails.html.

[8] Jay Caruso, “Media Ponders Its Own ‘Guilt’ For Covering Leaked Emails During Election (You Know, Because SHE Lost),” RedState (Dec. 15, 2016), http://www.redstate.com/jaycaruso/2016/12/15/reporters-question-coverage-wikileaks-hurt-hillary-clinton/.

[9] Ember, supra note 7.

[10] Alex Griswold, “Josh Earnest: Media Became ‘Arms of Russian Intelligence’ By Reporting on Hacked DNC Emails,” Mediaite (Dec. 13, 2016), http://www.mediaite.com/online/josh-earnest-media-became-arms-of-russian-intelligence-by-reporting-on-hacked-dnc-emails/.

[11] Madeline Conway, “Obama calls media coverage of hacked emails ‘an obsession’,” Politico (Dec. 16, 2016), http://www.politico.com/story/2016/12/obama-criticize-media-hacked-email-232756.

[12] Lawrence Marcus, “WikiLeaks Hack Reveals John Podesta’s Secret to Creamy Risotto,” Food & Wine (Oct. 11, 2016), http://www.foodandwine.com/news/wikileaks-hack-reveals-john-podestas-secret-creamy-risotto.

[13] Conway, supra note 11.

[14] Elizabeth Jensen, “How Should NPR Report On Hacked WikiLeaks Emails?,” NPR (Oct. 19, 2016), http://www.npr.org/sections/ombudsman/2016/10/19/498444943/how-should-npr-report-on-hacked-wikileaks-emails.

[15] Jennifer Schuessler, “Yes, He Thought Trump Would Win. No, He Didn’t Use Hard Data,” The New York Times (Nov. 9, 2016), https://www.nytimes.com/2016/11/10/arts/yes-he-thought-trump-would-win-no-he-didnt-use-hard-data.html.

[16] Peter W. Stevenson, “Professor who predicted 30 years of presidential elections correctly called a Trump win in September,” The Washington Post (Nov. 9, 2016), https://www.washingtonpost.com/news/the-fix/wp/2016/10/28/professor-whos-predicted-30-years-of-presidential-elections-correctly-is-doubling-down-on-a-trump-win/.

[17] Allan J. Lichtman, “The media is rigging the election by reporting WikiLeaks emails,” The Hill (Oct. 26, 2016), http://thehill.com/blogs/pundits-blog/media/302858-the-media-is-rigging-the-election-by-reporting-wikileaks-emails.

[18] Michael A. Memoli, “Marco Rubio’s warning to Republicans over WikiLeaks: ‘Tomorrow it could be us’,” Los Angeles Times (Oct. 19, 2016), http://www.latimes.com/nation/politics/trailguide/la-na-trailguide-third-presidential-marco-rubio-s-warning-to-republicans-1476889343-htmlstory.html.

[19] Sam Stein, “Rick Perry On Marco Rubio’s WikiLeaks Warning: ‘I Don’t Really Care What He Thinks’,” Huffington Post (Oct. 19, 2016), http://www.huffingtonpost.com/entry/rick-perry-rubio-wikileaks_us_5807f341e4b0b994d4c3d04f

[20] Ember, supra note 7.

[21] Although this report touches on the wider debate, it focuses on reporting on stolen materials.

[22] Jonathan Peters, “WikiLeaks, the First Amendment, and the Press,” Harvard Law & Policy Review (April 18, 2011), http://bit.ly/2lgir69.

[23] Jonathan Peters, “WikiLeaks Would Not Qualify to Claim Federal Reporter’s Privilege in Any Form,” 63 Federal Communications Law Journal 667 (2011), http://www.repository.law.indiana.edu/fclj/vol63/iss3/5/.

[24] Glenn Greenwald, “On WikiLeaks, Journalism, and Privacy: Reporting on the Podesta Archive Is an Easy Call,” The Intercept (Oct. 13, 2016), https://theintercept.com/2016/10/13/on-wikileaks-journalism-and-privacy-reporting-on-the-podesta-archive-is-an-easy-call/.

[25] Helen Lewis, “When Is it Ethical to Publish Stolen Data?,” Nieman Reports (Spring 2015), http://niemanreports.org/articles/when-is-it-ethical-to-publish-stolen-data/.

[26] Greenwald, supra note 24.

[27] Daniel Ellsberg, “Why the Pentagon Papers matter now,” The Guardian (June 13, 2011), https://www.theguardian.com/commentisfree/cifamerica/2011/jun/13/pentagon-papers-daniel-ellsberg.

[28] Paul Farhi, “Dear readers: Please stop calling us ‘the media.’ There is no such thing.,” The Washington Post (Sept. 23, 2016), https://www.washingtonpost.com/lifestyle/style/dear-readers-please-stop-calling-us-the-media-there-is-no-such-thing/2016/09/23/37972a32-7932-11e6-ac8e-cf8e0dd91dc7_story.html

[29] Karen Tumulty, Philip Rucker, and Anne Gearan, “Donald Trump wins the presidency in stunning upset over Clinton,” The Washington Post (Nov. 9, 2016), https://www.washingtonpost.com/politics/election-day-an-acrimonious-race-reaches-its-end-point/2016/11/08/32b96c72-a557-11e6-ba59-a7d93165c6d4_story.html

[30] Matt Flegenheimer and Michael Barbaronov, “Donald Trump Is Elected President in Stunning Repudiation of the Establishment,” The New York Times (Nov. 9, 2016), https://www.nytimes.com/2016/11/09/us/politics/hillary-clinton-donald-trump-president.html

[31] Michael S. Schmidt, “Hillary Clinton Used Personal Email Account at State Dept., Possibly Breaking Rules,” The New York Times (March 2, 2015), https://www.nytimes.com/2015/03/03/us/politics/hillary-clintons-use-of-private-email-at-state-department-raises-flags.html

[32] Adam Goldman and Alan Rappeport, “Emails in Anthony Weiner Inquiry Jolt Hillary Clinton’s Campaign,” The New York Times (Oct. 28, 2016), https://www.nytimes.com/2016/10/29/us/politics/fbi-hillary-clinton-email.html?rref=collection%2Fbyline%2Fmichael-s.-schmidt

[33] Aaron Blake, “‘Extremely careless,’ and 7 other big quotes from the FBI’s findings on Clinton’s emails,” The Washington Post (July 5, 2016), https://www.washingtonpost.com/news/the-fix/wp/2016/07/05/extremely-careless-and-7-other-comey-quotes-that-explain-the-fbis-clinton-email-findings/?utm_term=.c55d5f9ea015

[34] Eric Bradner, “AG Loretta Lynch declines to press charges against Clinton,” CNN (July 6, 2016), http://www.cnn.com/2016/07/06/politics/loretta-lynch-hillary-clinton-emails-no-charges/

[35] Matt Apuzzo, Michael S. Schmidt, and Adam Goldman, “Emails Warrant No New Action Against Hillary Clinton, F.B.I. Director Says,” The New York Times (Nov. 6, 2016), https://www.nytimes.com/2016/11/07/us/politics/hilary-clinton-male-voters-donald-trump.html

[36] Matt Apuzzo, Adam Goldman, Michael S. Schmidt, and William K. Rashbaum, “Justice Dept. Strongly Discouraged Comey on Move in Clinton Email Case,” The New York Times Oct. 29, 2016), https://www.nytimes.com/2016/10/30/us/politics/comey-clinton-email-justice.html

[37] Id.

[38] Lipton, Sanger, and Shane, supra note 2.

[39] Aaron Sharockman, “It’s True: WikiLeaks dumped Podesta emails hour after Trump video surfaced,” PolitiFact (Dec. 18, 2016), http://www.politifact.com/truth-o-meter/statements/2016/dec/18/john-podesta/its-true-wikileaks-dumped-podesta-emails-hour-afte/

[40] Assange at first refused to comment on the source of the emails, but later, responding to a question about whether the source was “Russia or anyone associated with Russia,” he said, “Our source is not a state party.” That echoed an answer he gave before the election: “Our source is not the Russian government. It is not state parties.” See Euan McKirdy, “WikiLeaks’ Assange: Russia didn’t give us emails,” CNN (Jan. 4, 2017), http://www.cnn.com/2017/01/04/politics/assange-wikileaks-hannity-intv/

[41] Joe Uchill, “Guccifer 2.0 mum on latest hack of Democrats,” The Hill (July 29, 2016), http://thehill.com/policy/cybersecurity/289839-guccifer-20-mum-on-latest-hack-of-democrats

[42] David E. Sanger and Eric Schmitt, “Spy Agency Consensus Grows That Russia Hacked D.N.C.,” The New York Times (July 26, 2016), https://www.nytimes.com/2016/07/27/us/politics/spy-agency-consensus-grows-that-russia-hacked-dnc.html

[43] Lipton, Sanger, and Shane, supra note 2.

[44] Katz, supra note 5.

[45] Lipton, Sanger, and Shane, supra note 2.

[46] Katie Bo Williams, “FBI, DHS release report on Russia hacking,” The Hill (Dec. 29, 2016), http://thehill.com/policy/national-security/312132-fbi-dhs-release-report-on-russia-hacking

[47] David Z. Morris, “Grizzly Misstep: Security Experts Call Russia Hacking Report “Poorly Done,” “Fatally Flawed”,” Fortune (Dec 31, 2016), http://fortune.com/2016/12/31/russian-hacking-grizzly-steppe/

[48] Lipton, Sanger, and Shane, supra note 2.

[49] “Lavrov denies Russian hacking to influence elections,” Reuters (Feb 18, 2017), http://www.reuters.com/article/us-russia-cyber-lavrov-idUSKBN15X0DR

[50] Nicole Gaouette, “FBI’s Comey: Republicans also hacked by Russia,” CNN (Jan. 10, 2017), http://www.cnn.com/2017/01/10/politics/comey-republicans-hacked-russia/

[51] Lipton, Sanger, and Shane, supra note 2.

[52] Michael Nunez, “WikiLeaks Just Published Tons of Credit Card and Social Security Numbers,” Gizmodo (July 22, 2016) http://gizmodo.com/wikileaks-just-published-tons-of-personal-data-like-a-b-1784140603

[53] Lipton, Sanger, and Shane, supra note 2.

[54] Id.

[55] Charlie Savage, “Assange, Avowed Foe of Clinton, Timed Email Release for Democratic Convention,” The New York Times (July 26, 2016) https://www.nytimes.com/2016/07/27/us/politics/assange-timed-wikileaks-release-of-democratic-emails-to-harm-hillary-clinton.html

[56] Julian Assange, “A vote today for Hillary Clinton is a vote for endless, stupid war,” WikiLeaks (Feb. 9, 2016), https://wikileaks.org/hillary-war/

[57] The studies were based on analysis of news reports by ABC, CBS, CNN, Fox, the Los Angeles Times, NBC, The New York Times, USA Today, The Wall Street Journal, and The Washington Post.

[58] Thomas E. Patterson, “Pre-Primary News Coverage of the 2016 Presidential Race: Trump’s Rise, Sanders’ Emergence, Clinton’s Struggle,” The Shorenstein Center on Media, Politics and Public Policy (June 13, 2016), https://shorensteincenter.org/pre-primary-news-coverage-2016-trump-clinton-sanders/

[59] Thomas E. Patterson, “News Coverage of the 2016 Presidential Primaries: Horse Race Reporting Has Consequences,” The Shorenstein Center on Media, Politics and Public Policy (July 11, 2016), https://shorensteincenter.org/news-coverage-2016-presidential-primaries/

[60] Thomas E. Patterson, “News Coverage of the 2016 National Conventions: Negative News, Lacking Context,” The Shorenstein Center on Media, Politics and Public Policy, (Sept. 12, 2016), https://shorensteincenter.org/news-coverage-2016-national-conventions/

[61] Thomas E. Patterson, “News Coverage of the 2016 General Election: How the Press Failed the Voters,” The Shorenstein Center on Media, Politics and Public Policy, (Dec. 7, 2016), https://shorensteincenter.org/news-coverage-2016-general-election/

[62] Nate Silver, “The Real Story Of 2016,” FiveThirtyEight (Jan. 19, 2017), http://fivethirtyeight.com/features/the-real-story-of-2016/

[63] EJ Montini, “Why is the media trafficking in stolen goods?,” The Arizona Republic (October 22, 2016), http://www.azcentral.com/story/opinion/op-ed/ej-montini/2016/10/22/montini-donald-trump-hillary-clinton-wikileaks-marco-rubio/92520638/

[64] Cody Derespina, “7 biggest revelations from WikiLeaks release of Podesta emails,” Fox News (Oct. 11, 2016), http://www.foxnews.com/politics/2016/10/11/7-biggest-revelations-from-wikileaks-release-podesta-emails.html

[65] Kyle Cheney and Sarah Wheaton, “The most revealing Clinton campaign emails in WikiLeaks release,” Politico (Oct. 7, 2016), http://www.politico.com/story/2016/10/john-podesta-wikileaks-hacked-emails-229304

[66] Id.

[67] Montini, supra note 63.

[68] Thornhill v. Alabama, 310 U.S. 88, 101–02 (1940).

[69] 385 U.S. 374, 388 (1967).

[70] Restatement (Second) of Torts § 652D cmt. j (1977).

[71] Haynes v. Alfred A. Knopf, Inc., 8 F.3d 1222, 1232 (7th Cir. 1993).

[72] Restatement (Second) of Torts § 652D cmt. h (1977).

[73] Lee Levine, Nathan E. Siegel, and Jeanette Melendez Bead, “Handcuffing the Press: First Amendment Limitations on the Reach of Criminal Statutes as Applied,” 55 New York Law School Law Review 1015, 1019 (2010).

[74] Bartnicki v. Vopper, 532 U.S. 514, 528 (2001) (quoting Smith v. Daily Mail Publ’g Co., 443 U.S. 97, 103 (1979)).

[75] Worrell Newspapers of Ind., Inc. v. Westhafer ̧ 739 F.2d 1219, 1223 (7th Cir. 1984), aff’d, 469 U.S. 1200 (1985).

[76] Levine, Siegel, and Bead, supra note 74, at 1021.

[77] Cox Broad. Corp. v. Cohn, 420 U.S. 469, 492 (1975).

[78] Id. at 491 (quoting Garrison v. Louisiana, 379 U.S. 64, 73 (1964)).

[79] Bartnicki, 532 U.S. 514.

[80] Id. at 528; see also Smith v. Daily Mail Publ’g Co., 443 U.S. 97, 103 (1979).

[81] Id. at 517-18 (noting that although the defendants “did not participate in the interception, . . . they did know—or at least had reason to know—that the interception was unlawful”).

[82] 435 U.S. 829 (1978).

[83] 491 U.S. 524 (1989).

[84] Boehner v. McDermott, 484 F.3d 573 (D.C. Cir. 2007).

[85] Pearson v. Dodd, 410 F.2d 701 (D.C. Cir. 1969).

[86] Levine, Siegel, and Bead, supra note 73, at 1026.

[87] R.A.V. v. City of St. Paul, 505 U.S. 377, 414 (1992) (quoting City of Houston v. Hill, 482 U.S. 451, 459 (1987)).

[88] Levine, Siegel, and Bead, supra note 73, at 1036.

[89] 18 U.S.C. 121 §§ 2701–2712 and 18 U.S.C. § 1030. The former governs the disclosure of “stored wire and electronic communications and transactional records” held by Internet service providers, and the latter outlaws certain conduct that effectively victimizes computer systems.

[90] It’s worth mentioning New York Times Co. v. United States, better known as the Pentagon Papers case, which “tends to get thrown out there as the catch-all for press freedom.” See Diana Dellamere, The Legality of Publishing Hacked E-mails, Columbia Journalism Review (Dec. 16, 2009), http://archives.cjr.org/the_observatory/the_legality_of_publishing_hac.php. Although the case did affirm “the right of the press to publish information of great public concern obtained from documents stolen by a third party,” Bartnicki, 532 U.S. at 528, the case makes for an inapt analogy in this context because it involved a government effort to forbid publication of classified information said to implicate national security. Cases like Bartnicki, Landmark Communications, Florida Star—and the reporting around the DNC/Podesta emails—involved neither a prior restraint nor the publication of classified information. That’s also the reason the Espionage Act, which generally forbids unauthorized disclosures of classified information, isn’t discussed here—and the reason the Snowden affair isn’t fully discussed or the WikiLeaks disclosures related to US diplomacy and the wars in Iraq and Afghanistan. Like the Pentagon Papers case, they are often invoked in discussions about mass leaks, but they make inapt analogies because of the nature of the information at issue. The Sony leaks are a better analogy.

[91] Paul J. Safier, “Is It Truthful? Then the Media Has a Right to Publish It,” The Legal Intelligencer (Feb. 2, 2017), http://bit.ly/2lm4MKl

[92] Bartnicki, 532 U.S. at 534.

[93] Safier, supra note 91.

[94] Jonathan Peters, “Could Facebook Live change the way courts think about privacy law?,” Columbia Journalism Review, (July 14, 2016), https://www.cjr.org/united_states_project/facebook_live_streaming_video_privacy_law.php

[95] Haynes v. Alfred A. Knopf, Inc., 8 F.3d 1222, 1232 (7th Cir. 1993).

[96] 17 U.S. Code § 102.

[97] Harper & Row v. Nation Enterprises, 471 U.S. 539 (1985).

[98] Jonathan Peters, “Can I use that? A legal primer for journalists,” Columbia Journalism Review (Oct. 1, 2015), https://www.cjr.org/united_states_project/journalist_legal_questions.php

[99] Copyright, Digital Media Law Project, http://www.dmlp.org/legal-guide/copyright

[100] Eriq Gardner, “Can Sony Get Around the First Amendment to Sue the Media Over the Hack?,” The Hollywood Reporter (Dec. 15, 2014), http://www.hollywoodreporter.com/thr-esq/can-sony-get-around-first-757804

[101] “Am I Liable for Republishing Defamatory Statements?,” Defamation Removal Law, https://www.defamationremovallaw.com/am-i-liable-for-republishing-defamatory-statements/

[102] 376 U.S. 254 (1964).

[103] Bartnicki, 532 U.S. at 534.

[104] Clifford G. Christians, Mark Fackler, Kathy Brittain Richardson, Peggy J. Kreshel, Robert H. Woods, Jr., Media Ethics: Cases and Moral Reasoning 2 (2012).

[105] See, e.g., “SPJ Code of Ethics,” Society of Professional Journalists https://www.spj.org/ethicscode.asp

[106] Christians et al., supra note 104, at 2-3.

[107] Id. at 15-16.

[108] Deni Elliott, “Essential Shared Values and 21st Century Journalism,” in The Handbook of Mass Media Ethics 36) (Lee Wilkins and Clifford G. Christians, eds., 2009).

[109] Walter Dean, “The Elements of Journalism,” American Press Institute, https://www.americanpressinstitute.org/journalism-essentials/what-is-journalism/elements-journalism/

[110] SPJ Code of Ethics, supra note 106.

[111] Admittedly, my review was unscientific. But it included a large number of stories from the same outlets used in the Shorenstein studies—plus more.

[112] See, e.g., Amy Chozick, “Donations to Foundation Vexed Hillary Clinton’s Aides, Emails Show,” The New York Times (Oct. 26, 2016), https://www.nytimes.com/2016/10/27/us/politics/bill-hillary-clinton-foundation-wikileaks.html

[113] See, e.g., David Dayen, “The Most Important WikiLeaks Revelation Isn’t About Hillary Clinton,” The New Republic (Oct. 14, 2016), https://newrepublic.com/article/137798/important-wikileaks-revelation-isnt-hillary-clinton

[114] Marcus, supra note 12.

[115] See, e.g., “Pop diva Ariana Grande lost White House gig over doughnut-licking incident,” Fox News (July 24, 2016), http://www.foxnews.com/entertainment/2016/07/24/pop-diva-ariana-grande-lost-white-house-gig-over-doughnut-licking-incident.html

[116] See, e.g., Jon Blistein, “Read Tom DeLonge’s Leaked Email to Hillary Clinton Campaign About UFOs,” Rolling Stone (Oct. 11, 2016), http://www.rollingstone.com/music/news/read-tom-delonges-leaked-e-mail-to-hillary-clinton-about-ufos-w444283

[117] See, e.g., Tal Kopan, “What (more) we’ve learned about Clinton’s circle,” CNN (Oct. 27, 2016), http://www.cnn.com/2016/10/26/politics/podesta-emails-wikileaks-what-learned-hillary-clinton/

[118] See, e.g., Tal Kopan, “Emails: Hillary Clinton campaign stressed about Al Gore before endorsement,” CNN (Oct. 21, 2016), http://www.cnn.com/2016/10/21/politics/wikileaks-hillary-clinton-podesta-emails-al-gore/

[119] See, e.g., “10 revealing, juicy and quirky emails from the Clinton WikiLeaks dump,” Al Jazeera (Oct. 24, 2016), http://live.aljazeera.com/Event/US_Election_2016/430807358

[120] See, e.g., Jeremy Diamond, “Donald Trump accuses Hillary Clinton of ‘pay for play’ in Morocco after email hack,” CNN (Oct. 21, 2016), http://www.cnn.com/2016/10/21/politics/clinton-morocco-trump-pay-for-play/

[121] See, e.g., Amy Chozick, Nicholas Confessore, and Michael Barbaro, “Leaked Speech Excerpts Show a Hillary Clinton at Ease With Wall Street,” The New York Times (Oct. 7, 2016), https://www.nytimes.com/2016/10/08/us/politics/hillary-clinton-speeches-wikileaks.html

[122] See, e.g., Rosalind S. Helderman, “WikiLeaks reveals fears and frustrations inside Clinton world,” The Washington Post (Oct. 25, 2016), https://www.washingtonpost.com/politics/her-instincts-can-be-terrible-wikileaks-reveals-fears-and-frustrations-inside-clinton-world/2016/10/25/a6ceefdc-9ae0-11e6-a0ed-ab0774c1eaa5_story.html

[123] Emily Schultheis, “WikiLeaks emails: Clinton aide says Obama had emails from Clinton’s private account, CBS News (Oct. 25, 2016), http://www.cbsnews.com/news/wikileaks-emails-clinton-aide-says-obama-had-emails-from-clintons-private-account/

[124] Safier, supra note 91.

[125] Michael Schudson, “Here’s what non-fake news looks like,” Columbia Journalism Review (Feb. 23, 2017), https://www.cjr.org/analysis/fake-news-real-news-list.php

[126] Clyde Haberman, “Arthur O. Sulzberger, Publisher Who Transformed The Times for New Era, Dies at 86,” The New York Times (Sept. 29, 2012), http://www.nytimes.com/2012/09/30/nyregion/arthur-o-sulzberger-publisher-who-transformed-times-dies-at-86.html

[127] Helen Lewis, “When Is it Ethical to Publish Stolen Data?,” Nieman Reports (June 1, 2015), http://niemanreports.org/articles/when-is-it-ethical-to-publish-stolen-data/

[128] Lori Grisham, “Timeline: North Korea and the Sony Pictures hack,” USA Today (Dec. 18, 2014), http://www.usatoday.com/story/news/nation-now/2014/12/18/sony-hack-timeline-interview-north-korea/20601645/

[129] Aaron Sorkin, “The Sony Hack and the Yellow Press Sony Hackers,” The New York Times (Dec. 14, 2014), https://www.nytimes.com/2014/12/15/opinion/aaron-sorkin-journalists-shouldnt-help-the-sony-hackers.html

[130] Margaret Sullivan, “Hacked Emails, ‘Air–Kissing’—and Two Firm Denials,” The New York Times (Dec. 12, 2014), https://publiceditor.blogs.nytimes.com/2014/12/12/maureen-dowd-amy-pascal-email-leak-questions/

[131] Lewis, supra note 127.

[132] Id.

[133] Christians et al., supra note 104, at 12-13.

[134] Id.

[135] James Poniewozik, “The Sony Hack, and Why Stolen News Is Still News,” Time (Dec. 15, 2014), http://time.com/3633820/sony-email-hack-sorkin-news/

[136] David Barstow, Susanne Craig, Russ Buettner, and Megan Twohey, “Donald Trump Tax Records Show He Could Have Avoided Taxes for Nearly Two Decades, The Times Found,” The New York Times (Oct. 1, 2016), https://www.nytimes.com/2016/10/02/us/politics/donald-trump-taxes.html

[137] New York Times Co. v. United States, 403 U.S. 713 (1971).

[138] Dana Priest of The Washington Post, The Pulitzer Prizes, http://www.pulitzer.org/winners/dana-priest

[139] Josh Gerstein, “Snowden knocks WikiLeaks for handling of DNC leak,” Politico (July 28, 2016), http://www.politico.com/blogs/under-the-radar/2016/07/edward-snowden-wikileaks-dnc-226386

[140] Peters, supra note 23, at 684.

[141] Joel Simon, “How journalists can cover leaks without helping spies,” Columbia Journalism Review (Aug. 3, 2016), https://www.cjr.org/opinion/dnc_email_wikileaks_scandal_russia.php

[142] Peters, supra note 23, at 684.

[143] Nunez, supra note 52.

[144] Alfred E. Lewis, “5 Held in Plot to Bug Democrats’ Office Here,” The Washington Post (June 18, 1972), http://www.washingtonpost.com/wp-srv/national/longterm/watergate/articles/061872-1.htm

[145] “Timeline: The Watergate Story,” The Washington Post, http://www.washingtonpost.com/wp-srv/politics/special/watergate/timeline.html

[146] Franklin Foer, “The DNC Hack Is Watergate, but Worse,” Slate (July 26, 2016), http://www.slate.com/articles/news_and_politics/politics/2016/07/the_dnc_hack_is_watergate_but_worse.html

[147] Kaveh Waddell, “A Watergate Break-In For the 21st Century,” The Atlantic (June 14, 2016), https://www.theatlantic.com/technology/archive/2016/06/russian-hackers-infiltrate-dnc-systems/487016/

[148] Foer, supra note 146.

[149] Andy Greenberg, This Machine Kills Secrets 5 (2012).

[150] Id.

[151] Martin Hilbert and Priscila Lopez, “The World’s Technological Capacity to Store, Communicate, and Compute Information,” 332 Science 60, 64 (2011).

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Jonathan Peters is CJR’s press freedom correspondent. He is a media law professor at the University of Georgia, with posts in the Grady College of Journalism and Mass Communication and the School of Law. Peters has blogged on free expression for the Harvard Law & Policy Review, and he has written for Esquire, The Atlantic, Sports Illustrated, Slate, The Nation, Wired, and PBS. Follow him on Twitter @jonathanwpeters.