Abstract: This Article addresses a fluid and increasingly salient category of cases involving the First Amendment right to publish information that was hacked, stolen, or illegally leaked by someone else. Twenty years ago, in Bartnicki v. Vopper, the Supreme Court appeared to give broad constitutional cover to journalists and other publishers in these situations, but Justice Stevens’s inexact opinion for the Court and Justice Breyer’s muddling concurrence left the boundaries unclear. The Bartnicki framework is now implicated in dozens of new cases— from the extradition and prosecution of Julian Assange, to Donald Trump’s threatened suit of The New York Times over his tax records, to the civil suits spawned by the hack of DNC servers—so there is a pressing need for clarity.
The empirical part of this Article presents the results of a comprehensive analysis of every case applying Bartnicki over the past two decades to determine if lower courts have answered the questions Bartnicki left open and to identify points of confluence and conflict. The analysis shows courts are divided about nearly every aspect of Bartnicki. There is a circuit split regarding the amount of separation a publisher must have from a source in order to be protected, division about the relevance of statutory prohibitions on receiving or possessing certain information, and confusion about how to assess whether publications, particularly those involving large caches of data, address matters of public concern.
The normative part of this Article proposes a reorientation of courts’ approaches to these issues by (1) untethering liability for the procurement, receipt, and publication of information, treating each as a legally discrete act; (2) denying Bartnicki protection only to those who directly participate or assist in the illegal procurement of information; (3) treating as a First Amendment violation any law punishing those who merely receive or possess newsworthy information; and (4) engaging in more contextual analyses of “public concern.” All of these changes will help stabilize the law, strike a better balance between newsgathering and secrecy, and vitalize press and citizen communication at a time of decreasing government and private-sector transparency.