Cockrum v. Donald J. Trump for President Inc.

Plaintiffs have failed to state a claim arising from the unauthorized publication of their personal information on the internet by Wikileaks, allegedly in cooperation with the Trump Campaign.

The plaintiffs allege that their information was illegally obtained by Russian intelligence operatives during the Russians’ hack of computer servers belonging to the Democratic National Committee. They also allege that the Trump Campaign promised to provide political benefits to Russia in return for publication of the hacked emails in order to help the Trump Campaign win the 2016 presidential election. Their amended complaint asserts three counts: conspiracy to intimidate voters, damages for public disclosure of private facts, and intentional infliction of emotional distress.

This court rejects the Trump Campaign’s threshold challenge that the alleged publication of the hacked information was protected by the First Amendment. The amended complaint’s detailed descriptions of conversations and meetings between representatives of the Campaign and Russian operatives are more than ample at this point to provide a plausible factual basis for the plaintiffs’ allegation that the Campaign was aware that the stolen information had been unlawfully obtained. The Campaign also contends that the disclosed information dealt with matters of public concern. But the amended complaint however alleges that approximately 22,000 of the emails contained personal information.

Construing the allegations in the light most favorable to the plaintiffs, the court finds that the Campaign’s release of the hacked emails from the DNC don’t warrant First Amendment protection.

The court will follow the Supreme Court’s historically consistent interpretation that § 1985(3) is purely remedial. Therefore, in order to plead a viable conspiracy claim, the plaintiffs must allege violation of a substantive constitutional right coupled with state action. They fail to do so because the Campaign was a private entity, so no state action is sufficiently alleged. Count I must be dismissed with prejudice.

For the sake of analysis, the court will adopt the elements of the common-law tort of public disclosure of private facts recognized in Maryland, New Jersey, and Tennessee, which don’t require actual injury – the wrongful act of public disclosure was complete upon publishing the plaintiffs’ personal information. But the complaint fails to disclose the location from which Wikileaks allegedly published the information. Unable to determine where the act of publication occurred, the court applies the law of Virginia, the forum state. Because Virginia doesn’t recognize a common-law right to privacy, the court must dismiss these claims but will do so without prejudice.

Motion to dismiss granted.

Cockrum v. Donald J. Trump for President Inc., No. 3:18cv484, Mar. 15, 2019. EDVA at Richmond (Hudson).

Categories: Opinions, U.S. District Court - Eastern District of Virginia

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