COCKRUM et al v. DONALD J. TRUMP FOR PRESIDENT, INC. et al

Filing 42

REPLY to opposition to motion re 20 MOTION to Dismiss filed by DONALD J. TRUMP FOR PRESIDENT, INC.. (Attachments: # 1 Exhibit Ex 1 - WikiLeaks accuracy policy, # 2 Exhibit Ex 2 - Washington Post article)(Carvin, Michael)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

ROY COCKRUM,

ET AL .,

Plaintiffs,
v.

Case No. 1:17-cv-1370-ESH

DONALD J. TRUMP FOR PRESIDENT,
INC. ET AL .,
Defendants.

REPLY IN SUPPORT OF
DEFENDANT DONALD J. TRUMP FOR PRESIDENT, INC.’S
MOTION TO DISMISS THE FIRST AMENDED COMPLAINT

Jeffrey Baltruzak
JONES DAY
500 Grant Street, Suite 4500
Pittsburgh, PA 15219
[phone]
[e-mail]

Michael A. Carvin
Counsel of Record
Vivek Suri
JONES DAY
51 Louisiana Avenue, NW
Washington, DC 20001
[phone]
[e-mail]
[e-mail]

Counsel for Donald J. Trump for President, Inc.

TABLE OF CONTENTS
Page
Table of Authorities ...................................................................................................... ii
Argument ...................................................................................................................... 1
I.

The Court should dismiss the complaint on procedural grounds ......................... 1
A. Plaintiffs fail to show subject-matter jurisdiction over the tort claims ......... 1
B. Plaintiffs fail to establish personal jurisdiction ............................................. 3
C. Plaintiffs fail to establish that venue lies in this district .............................. 7

II. The Court should dismiss the complaint for failure to state a claim ................... 7
A. Plaintiffs’ tort claims are governed by New York law, which rejects
their theories of tort liability ........................................................................... 7
B. Plaintiffs fail to state claims for public disclosure of private facts .............. 10
C. Plaintiffs fail to state a claim for intentional infliction................................ 20
D. Plaintiffs fail to state a viable theory of vicarious liability .......................... 22
E. Plaintiffs fail to show that their theories of liability comply with the
First Amendment and vagueness doctrine ................................................... 24
F. Plaintiffs fail to state a claim under 42 U.S.C. § 1985 ................................. 25
Conclusion ................................................................................................................... 30
Certificate of Service

i

TABLE OF AUTHORITIES
Page(s)
CASES
Alkanani v. Aegis Defense Services, LLC,
976 F. Supp. 2d 13 (D.D.C. 2014) ............................................................................. 4
Alvarado v. KOB-TV, LLC,
493 F.3d 1210 (10th Cir. 2007) ............................................................................... 11
Armstrong v. Thompson,
80 A.3d 177 (D.C. 2013) .......................................................................................... 18
Ashcroft v. Free Speech Coalition,
535 U.S. 234 (2002) ................................................................................................ 11
Barimany v. Urban Pace, LLC,
73 A.3d 964 (D.C. 2013) ............................................................................................ 8
*

Bartnicki v. Vopper,
532 U.S. 514 (2001) .........................................................................................passim
Bell Atlantic Corp. v. Twombly,
550 U.S. 544 (2007) ................................................................................................ 17
Bender v. Williamsport Area School District,
475 U.S. 534 (1986) .................................................................................................. 2
Bettis v. Islamic Republic of Iran,
315 F.3d 325 (D.C. Cir. 2003) ................................................................................. 20
Bristol-Myers Squibb Co. v. Superior Court,
137 S. Ct. 1773 (2017) .............................................................................................. 6
Brown v. Keene,
33 U.S. 112 (1834)..................................................................................................... 2
Carpenters v. Scott,
463 U.S. 825 (1983) .............................................................................. 26, 27, 28, 29
CFTC v. Nahas,
738 F.2d 487 (D.C. Cir. 1984) ................................................................................... 2

ii

TABLE OF AUTHORITIES
(continued)
Page(s)
City of Boerne v. Flores,
521 U.S. 507 (1997) ................................................................................................ 28
Crane v. Carr,
814 F.2d 758 (D.C. Cir. 1987) ................................................................................... 4
Daimler AG v. Bauman,
134 S. Ct. 746 (2014) ................................................................................................ 5
Dennis v. Sparks,
449 U.S. 24 (1980) .................................................................................................. 23
FDA v. Brown & Williamson Tobacco Corp.,
529 U.S. 120 (2000) .................................................................................................. 3
Florida Star v. BJF,
491 U.S. 524 (1989) .............................................................................. 10, 12, 13, 20
Granger v. Klein,
197 F. Supp. 2d 851 (E.D. Mich. 2002) .................................................................. 19
Great American v. Novotny,
442 U.S. 366 (1979) ................................................................................................ 26
Griffin v. Breckenridge,
403 U.S. 88 (1971) .................................................................................................. 28
Halberstam v. Welch,
705 F.2d 472 (D.C. Cir. 1983) ........................................................................... 22, 24
Harrison v. Washington Post Co.,
391 A.2d 781 (D.C. 1978) ........................................................................................ 16
Hobson v. Wilson,
737 F.2d 1 (D.C. Cir. 1984) ..................................................................................... 26
Hustler Magazine, Inc. v. Falwell,
485 U.S. 46 (1988) .................................................................................................. 24
In re APA Assessment Fee Litigation,
766 F.3d 39 (D.C. Cir. 2014) ..................................................................................... 8

iii

TABLE OF AUTHORITIES
(continued)
Page(s)
Kush v. Rutledge,
460 U.S. 719 (1983) ................................................................................................ 29
McNally v. Pulitzer Publishing Co.,
532 F.2d 69 (8th Cir. 1976) ..................................................................................... 10
NAACP v. Button,
371 U.S. 415 (1963) ................................................................................................ 24
Naffe v. Frey,
789 F.3d 1030 (9th Cir. 2015) ................................................................................... 2
NBC-USA Housing, Inc. v. Donovan,
741 F. Supp. 2d 55 (D.D.C. 2010) ............................................................................. 6
New York Times Co. v. Sullivan,
376 U.S. 254 (1964) ................................................................................................ 19
Ortberg v. Goldman Sachs Group,
64 A.3d 158 (D.C. 2013) .......................................................................................... 21
Paynes v. Lee,
377 F.2d 61 (5th Cir. 1967) ..................................................................................... 29
Pearson v. Dodd,
410 F.2d 701 (D.C. Cir. 1969) ....................................................................... 8, 10, 16
Perkins v. Benguet Consolidated Mining Co.,
342 U.S. 437 (1952) .................................................................................................. 5
PLIVA v. Mensing,
564 U.S. 604 (2011)................................................................................................. 23
Randolph v. ING Life Insurance & Annuity Co.,
973 A.2d 702 (D.C. 2009) ........................................................................................ 16
Reed v. Town of Gilbert,
135 S. Ct. 2218 (2015) ............................................................................................ 24
Rice v. Paladin Enterprises, Inc.,
128 F.3d 233 (4th Cir. 1997) ................................................................................... 19

iv

TABLE OF AUTHORITIES
(continued)
Page(s)
Rosenboro v. Kim,
994 F.2d 13 (D.C. Cir. 1993) ..................................................................................... 2
Schlesinger v. Councilman,
420 U.S. 738 (1975) .................................................................................................. 1
Seiferth v. Helicopteros Atuneros, Inc.,
472 F.3d 266 (5th Cir. 2006) ..................................................................................... 4
*

Snyder v. Phelps,
562 U.S. 443 (2011)..................................................................................... 12, 13, 14
Sundberg v. TTR Realty, LLC,
109 A.3d 1123 (D.C. 2015) ...................................................................................... 24
Terry v. Adams,
345 U.S. 461 (1953) ................................................................................................ 29
Triple Up Limited v. Youku Tudou Inc.,
235 F. Supp. 3d 15 (D.D.C. 2017) ............................................................................. 4
United States v. Harris,
106 U.S. 629 (1883) ................................................................................................ 28
United States v. Morrison,
529 U.S. 598 (2000) ................................................................................................ 28
Vassiliades v. Garfinckel’s,
492 A.2d 580 (D.C. 1985) ........................................................................................ 13
Virgil v. Time, Inc.,
527 F.2d 1122 (9th Cir. 1975) ................................................................................. 10
Wiggins v. Philip Morris, Inc.,
853 F. Supp. 470 (D.D.C. 1994) .............................................................................. 26
Wolf v. Regardie,
553 A.2d 1213 (D.C. 1989) ...................................................................................... 11
Ziglar v. Abbasi,
137 S. Ct. 1843 (2017) ............................................................................................ 26

v

TABLE OF AUTHORITIES
(continued)
Page(s)
STATUTES
18 U.S.C. § 1030 ........................................................................................................... 15
28 U.S.C. § 1392 ............................................................................................................. 7
42 U.S.C. § 1983 ........................................................................................................... 23
42 U.S.C. § 1985 ....................................................................................................passim
D.C. Code § 13-423 ......................................................................................................... 3
17 Stat. 1871 ................................................................................................................ 28

vi

ARGUMENT
We have explained that, in order to analyze personal jurisdiction, venue, choice of
law, and the merits, one must first appreciate that this case is about the publication
rather than the acquisition of the DNC emails. (Mem. 6–7.) Plaintiffs expressly accept
this key premise. They say: “Plaintiffs do not seek to hold Defendants directly liable
for hacking the DNC servers in D.C,” because the hack “took place before [the Campaign] joined the conspiracy.” (Opp. 21.) Instead, Plaintiffs seek to hold the defendants liable only “for [the] dissemination.” (Opp. 27 n.10.)
For a variety of reasons, however, Plaintiffs may not hold the Campaign liable “for
the dissemination” of the DNC emails. Most importantly, Plaintiffs fail to satisfy the
D.C. long-arm statute and fail to overcome the Campaign’s First Amendment publicconcern defense. The Court should dismiss the case.
I. The Court Should Dismiss The Complaint On Procedural Grounds
Plaintiffs cannot show subject-matter jurisdiction, personal jurisdiction, or venue.
A. Plaintiffs fail to show subject-matter jurisdiction over the tort claims
Plaintiffs establish neither diversity jurisdiction nor supplemental jurisdiction
over their common-law tort claims. They acknowledge that, to establish diversity jurisdiction, they must satisfy the amount-in-controversy requirement individually rather than collectively. (Opp. 14–15.) Yet their complaint never states that any individual plaintiff seeks damages exceeding $75,000. This omission decides the case,
since a complaint “is fatally defective unless it contains a proper allegation of the
amount in controversy.” Schlesinger v. Councilman, 420 U.S. 738, 744 n.9 (1975).

1

Plaintiffs argue that, in light of the nature of the injuries pleaded in the complaint,
compensatory and punitive damages could exceed $75,000. (Opp. 15.) But “the decisions of [the Supreme Court] require, that the averment of jurisdiction shall be positive, that the [complaint] shall expressly state the fact on which jurisdiction depends.
It is not sufficient that jurisdiction may be inferred argumentatively.” Brown v. Keene,
33 U.S. 112, 115 (1834) (Marshall, C.J.); see Bender v. Williamsport Area School District, 475 U.S. 534, 547 (1986) (“it is not sufficient that jurisdiction may be inferred
argumentatively from … the pleadings”); CFTC v. Nahas, 738 F.2d 487, 492 n.9 (D.C.
Cir. 1984) (“a party must … affirmatively allege in his pleadings the facts showing
the existence of jurisdiction”). This rule is “inflexible and without exception.” Bender,
475 U.S. at 546. Here, the complaint fails to state affirmatively that any single plaintiff’s damages exceed $75,000. And Plaintiffs have not asked for leave to amend the
complaint to include such an allegation. That ends the case.
Plaintiffs try to get around the problem by appealing to the “legal certainty” test
for judging the jurisdictional amount. (Opp. 14.) But the legal certainty test kicks in
only after “the complaint affirmatively alleges that the amount in controversy exceeds
the jurisdictional threshold.” Naffe v. Frey, 789 F.3d 1030, 1040 (9th Cir. 2015). Once
the plaintiff makes such an allegation, “the sum claimed by the plaintiff controls,”
unless it “appear[s] to a legal certainty that the claim is really for less.” Rosenboro v.
Kim, 994 F.2d 13, 16 (D.C. Cir. 1993). Here, the complaint does not affirmatively allege that any single plaintiff satisfies the amount requirement. The legal-certainty
test thus does not come into play.

2

That leaves supplemental jurisdiction. Plaintiffs acknowledge that courts should
not exercise supplemental jurisdiction where the state claims “require more judicial
resources to adjudicate” than the federal claims. (Opp. 16.) Plaintiffs’ state claims will
consume far more judicial resources than their federal claims. To resolve the state
claims, the Court must (1) conduct a choice-of-law inquiry, (2) decide novel questions
of District law, such as whether the public-disclosure tort covers disclosures of sexual
orientation, (3) resolve important First Amendment issues, and (4) adjudicate an
anti-SLAPP motion. The federal-law claims raise no such complications. Exercising
supplemental jurisdiction is thus plainly inappropriate.
B. Plaintiffs fail to establish personal jurisdiction
To establish personal jurisdiction, Plaintiffs must satisfy both the long-arm statute
(D.C. Code § 13-423) and the Due Process Clause. (Mem. 10.) Plaintiffs do neither.
Long-Arm Statute. Plaintiffs claim that two subsections of the long-arm statute,
(a)(1) and (a)(4), confer jurisdiction here. But neither provision applies in this case.
To start, subsection (a)(1) applies where the defendant “transact[s] any business in
the District.” The clause does not cover this tort case. “The words of a statute must
be read … with a view to their place in the overall statutory scheme.” FDA v. Brown
& Williamson Tobacco Corp., 529 U.S. 120, 133 (2000). The long-arm statute’s overall
scheme includes two subsections, (a)(3) and (a)(4), that expressly address “tort[s].”
This means that a tort plaintiff must rely on those tort-specific subsections. He may
not circumvent the requirements of those provisions by invoking the “transacting
business” clause instead.

3

The D.C. Circuit has specifically ruled that claims for invasion of privacy “fal[l]
under” the tort subsections; they “do not fit” under the “transacting business” clause.
Crane v. Carr, 814 F.2d 758, 763 (D.C. Cir. 1987). This Court, too, has “declin[ed] to
construe ‘transacting business’ jurisdiction to encompass tort actions that the tortspecific provisions would otherwise disallow.” Triple Up Limited v. Youku Tudou Inc.,
235 F. Supp. 3d 15, 21 n.1 (D.D.C. 2017); see Alkanani v. Aegis Defense Services, LLC,
976 F. Supp. 2d 13, 27–28 (D.D.C. 2014).
That leaves subsection (a)(4), which applies where a plaintiff suffers “tortious injury in the District.” Plaintiffs assert in-District injuries for only some of their claims.
They do not even try to show in-District injury for (1) Cockrum’s claims for public
disclosure and intentional infliction, (2) Schoenberg’s claims for public disclosure and
intentional infliction, or (3) Comer’s claims regarding disclosures relating to his sexual orientation or his illness. Because personal jurisdiction is “claim-specific” (Seiferth v. Helicopteros Atuneros, Inc., 472 F.3d 266, 274 (5th Cir. 2006)), the Court
should dismiss these claims for this reason alone.
Plaintiffs argue that their § 1985 claims involve tortious injury in the District because Plaintiffs supported the DNC, which is headquartered in the District. (Opp. 22.)
The argument is wrong. Section § 1985 prohibits conspiracies to “intimidat[e]” citizens who support federal candidates. The “tortious injury” in a § 1985 case is thus the
intimidation experienced by the plaintiff. That intimidation occurs where the plaintiff
is located, not where the entity he supports is located. Here, none of Plaintiffs lived
in the District. There is thus no tortious injury in the District.

4

Only Plaintiff Comer tries to shoehorn his public-disclosure claim into subsection
(a)(4): He claims that the disclosure of emails in which he gossips about his colleagues
caused injury here by affecting his professional relationships in the District. This argument is wrong. The long-arm statute requires “tortious injury.” Revealing someone’s gossip is not a tort, so the harm caused by the revelation is not tortious injury.
Infra 18. Thus, this claim, too, warrants dismissal for lack of personal jurisdiction.
Due Process. Plaintiffs claim that the Court may exercise general jurisdiction
under Perkins v. Benguet Consolidated Mining Co., 342 U.S. 437 (1952), even though
the Campaign is permanently headquartered in New York, because it has been “temporarily headquartered” in the District “since January 20, 2017.” (Opp. 23.) But “Perkins should be regarded as a decision on its exceptional facts.” Daimler AG v. Bauman,
134 S. Ct. 746, 756 n.8 (2014). In Perkins, a Philippine corporation shut down its
Philippine operations and moved to Ohio because of the Japanese occupation of the
Philippines during World War II. “To the extent that the company was conducting
any business during and immediately after the Japanese occupation of the Philippines, it was doing so in Ohio.” Id. “Given the wartime circumstances,” Ohio “could be
considered a [temporary] surrogate” for the principal place of business, and thus could
exercise general jurisdiction. Id.
This case looks nothing like Perkins. As Plaintiffs allege, the Campaign continues
to maintain its “permanent” headquarters in Trump Tower in New York. (Am. Compl.
¶ 35.) It has not temporarily shut down its offices there to move all of its operations
to the District. Perkins thus does not authorize general jurisdiction in this case.

5

Plaintiffs argue, alternatively, that the Court may exercise specific jurisdiction because of “meetings” and “negotiat[ions]” that occurred in the District and because the
alleged Russian hack targeted servers located in the District. (Opp. 19). But specific
jurisdiction covers only claims that “arise from” the Campaign’s purposeful activities
in the District. Bristol-Myers Squibb Co. v. Superior Court, 137 S. Ct. 1773, 1780
(2017). Plaintiffs cannot show that this case “arises from” meetings or negotiations in
the District, since they never allege that the Campaign ever discussed the DNC
emails in those meetings. Similarly, the case does not “arise from” the alleged Russian
hack; the case concerns the publication, rather than the acquisition, of the emails.
Plaintiffs fall back on the intuition that a presidential campaign faces no inconvenience in defending a case here. (Opp. 17.) But restrictions on personal jurisdiction
are “territorial limitations on the power” of the court, not just an “immunity from
inconvenient or distant litigation.” Bristol-Myers Squibb, 137 S. Ct. at 1780. “Even if
the defendant would suffer … no inconvenience,” a plaintiff must still show that the
court has the power to decide the case. Id. at 1780. Plaintiffs have not done so.
Finally, Plaintiffs ask for jurisdictional discovery. (Opp. 18 n.7). But a plaintiff who
wants such discovery must explain, in “detai[l],” “what discovery he wishes to conduct”
and “what results [he] thinks such discovery would produce.” NBC-USA Housing, Inc.
v. Donovan, 741 F. Supp. 2d 55, 60 (D.D.C. 2010). Plaintiffs have never tried to do so.
They have instead made a bare request for discovery, without telling the Court what
they want to see or what they expect to learn. A plaintiff may not get discovery to
start such a generalized fishing expedition into unidentified issues.

6

C. Plaintiffs fail to establish that venue lies in this district
Plaintiffs also fail to establish venue. Venue would be appropriate only if a “substantial part” of the events giving rise to the claim occurred in this district. 28 U.S.C.
§ 1392(b)(2). Plaintiffs assert that venue is proper because the hack targeted emails
stored in this district. (Opp. 23.) But Plaintiffs concede that this case is about the
disclosure rather than the hack. Since the hack did not itself give rise to the claims,
it cannot establish venue. (Mem. 16.) Plaintiffs also assert that venue is proper because the alleged conspirators met and communicated in the District. (Opp. 23.) But
as we have already explained, Plaintiffs have failed to show that any of the events in
this district played a “substantial” (rather than peripheral) role in the alleged conspiracy. (Mem. 16.) Venue is thus improper in this district.
II. The Court Should Dismiss the Complaint for Failure to State a Claim
Plaintiffs also fail to state a claim for public disclosure of private facts, for intentional infliction of emotional distress, and for a violation of § 1985(3).
A. Plaintiffs’ tort claims are governed by New York law, which rejects their
theories of tort liability
Plaintiffs agree that, under the District of Columbia’s choice-of-law rules, a court
decides which state’s law will apply by considering which states have an interest in
having their law applied, and (if multiple states have such an interest) by asking
which state has the most significant relationship to the occurrence and the parties.
(Opp. 34.) Under this test, this case is governed by New York law—which rejects the
tort theories alleged by Plaintiffs. The case is not governed by the law of the District,
nor by Tennessee, New Jersey, or Maryland—the alternatives Plaintiffs propose.

7

New York has a powerful interest in applying its law to this case. Plaintiffs assert,
without citation, that New York lacks an interest in “protecting its domiciliaries” from
liability in other states. (Opp. 35.) But this argument contradicts In re APA Assessment Fee Litigation, 766 F.3d 39 (D.C. Cir. 2014)—a case we cite in our opening brief,
but which Plaintiffs never attempt to distinguish. There, the D.C. Circuit held that a
state does have an interest in “protecting defendants from litigation” and in
“shield[ing]” its citizens from “liability” in other states. Id. at 53. As a result, a “rule
of non-liability” is “owed the same consideration in the choice-of-law process” as a
“rule which imposes liability.” Id. Put simply, New York has a strong interest in ensuring that the Campaign, a New York entity, may speak freely without fear of liability for its truthful speech.
Plaintiffs claim that the Court should nonetheless apply D.C. law, because the hack
targeted servers located in the District. (Opp. 34.) This claim is mistaken. Choice-oflaw analysis requires “a precise inquiry” focused on the “distinct issu[e] to be adjudicated,” not a panoramic view of “various state interests generally.” Barimany v. Urban
Pace, LLC, 73 A.3d 964, 967 (D.C. 2013). The issue to be adjudicated here is whether
the publication of the emails was tortious. That issue “[does] not turn on the manner
in which [the information] has been obtained.” Pearson v. Dodd, 410 F.2d 701, 705
(D.C. Cir. 1969). The District may well have a distinctive interest in regulating the
theft of the emails (since the theft targeted servers in the District), but it has no better
interest in regulating the subsequent publication of the emails than any other state
(since the emails were published on the internet, not just in the District).

8

Even if the District had a relevant interest, New York law would still apply because
New York’s relationship to the occurrence and parties is more significant than the
District’s. Two parties (the Campaign and Mr. Stone) are headquartered in or rent a
home in New York; no party lives in the District. Many participants in the alleged
conspiracy (Mr. Trump, Trump Jr., Kushner) lived and worked in New York; none
lived or worked in the District. The targets of the alleged conspiracy (Hillary Clinton
and the Clinton campaign) are also from New York, not from the District.
Against all of this, Plaintiffs assert that they suffered some of their injuries in the
District. (Opp. 35.) That claim is inaccurate; Plaintiffs all live outside the District,
and thus suffered at least the bulk of their injuries outside the District. Plaintiffs also
assert that the alleged conspirators met and negotiated about unspecified topics in
the District. (Opp. 35). But Plaintiffs themselves say that they also met and negotiated in “New York City.” (Opp. 67.) All in all, the District’s ties to the case are far less
significant than New York’s. New York law should govern the case.
As a fallback, Plaintiffs argue that the Court should apply the laws of their own
home states—Tennessee, New Jersey, and Maryland. (Opp. 35.) We agree that, just
as New York has an interest in protecting the Campaign, these three states have an
interest in protecting Plaintiffs. But that just takes us to the second step of the choiceof-law inquiry: asking which state has the most significant relationship to the case.
The answer to that question is plainly New York, since Plaintiffs do not allege that
any of the relevant events occurred in Tennessee, New Jersey, or Maryland. New York
law thus governs this case, and Plaintiffs’ tort claims fail.

9

B. Plaintiffs fail to state claims for public disclosure of private facts
To analyze Plaintiffs’ claim for public disclosure of private facts, one must first realize that liability for this tort “[does] not turn on the manner in which [the information] has been obtained.” Pearson, 410 F.2d at 705; see McNally v. Pulitzer Publishing Co., 532 F.2d 69, 79 (8th Cir. 1976) (“manner in which information is acquired
is not relevant”). A defendant is liable for public disclosure even if “the information
was obtained without commission of a tort and in a manner wholly unobjectionable.”
Virgil v. Time, Inc., 527 F.2d 1122, 1126 (9th Cir. 1975). For example, if an email is
truly “private,” then a defendant commits a tort by publishing that email regardless
of whether he got it by hacking into a server, by receiving a copy from a whistleblower,
or by finding a printout dropped in the street.
This theory of tort liability for disclosing truthful and legally obtained material
poses obvious dangers for free speech. “Punishing truthful publication in the name of
privacy” is always an “extraordinary measure” (Florida Star v. BJF, 491 U.S. 524,
540 (1989)); doubly so when the publisher did nothing illegal in acquiring the information in the first place. These concerns make it all the more important for courts to
enforce well-established restrictions on the tort’s scope.
Plaintiffs’ claims violate these restrictions. Most importantly, the claims improperly seek to punish speech about issues of public concern, and the kind of information
that is involved in this case is not the kind of information that the tort of public disclosure is meant to protect.

10

1. The public-disclosure claims fail because the publication concerned
newsworthy and public issues
Under the First Amendment, a defendant may not be held liable for a disclosure of
stolen information if (1) the disclosure deals with “a matter of public concern” and (2)
the speaker was not “involved” in the theft. Bartnicki v. Vopper, 532 U.S. 514, 529,
535 (2001). Similarly, under tort law, a defendant is not liable for a disclosure if the
disclosure is “newsworthy.” Wolf v. Regardie, 553 A.2d 1213, 1220 n.12 (D.C. 1989).
Plaintiffs entirely ignore the First Amendment, instead addressing only the tortlaw newsworthiness element. They never so much as cite Bartnicki. (Opp. 45–48.)
They certainly make no effort to show that the Campaign was “involved” in the initial
theft of the DNC emails, in effect conceding that the Campaign satisfies the second
part of the Bartnicki First Amendment test. The dispositive question is thus whether
the disclosure in this case dealt with “newsworthy” and “public” issues. There can be
no serious doubt that it did. (Mem. 21–26.) That ends the case: The disclosure satisfies the First Amendment test.
In any event, Plaintiffs’ arguments are unpersuasive. First, Plaintiffs urge the
Court to parse the emails line by line to determine which parts are protected and
which are not. In their view, “every … fact disclosed” must have “substantial relevance” or a “logical nexus” to a public issue in order to be protected. (Opp. 46). This
theory is wrong. Tort law analyzes newsworthiness “on an aggregate basis.” Alvarado
v. KOB-TV, LLC, 493 F.3d 1210, 1221 (10th Cir. 2007). Similarly, an “essential First
Amendment rule” requires courts to judge speech “as a whole,” not piece by piece.
Ashcroft v. Free Speech Coalition, 535 U.S. 234, 248 (2002).
11

The Supreme Court made this point in Bartnicki. There, leaders of a teachers’ union spoke on the phone about “blow[ing] off the front porches” of school-board members to influence salary negotiations. 532 U.S. at 518–19. The Supreme Court held
that the First Amendment protected a radio host’s disclosure of this illegally intercepted conversation. Even though the threat to “blow off” front porches was not itself
speech about a public issue, the First Amendment protected the disclosure because
the host made it while “engaged in debate about” teacher pay—“a matter of public
concern.” Id. at 535. Bartnicki’s “public concern” inquiry thus focuses on the broader
context of the disclosure, not just on the nature of the specific fact disclosed.
The Court made the same point in Florida Star. There, a newspaper revealed the
name of a rape victim, violating a statute that protected this private fact. 491 U.S. at
528. The Court ruled that the First Amendment barred civil liability, because “the
news article concerned a matter of public significance.” Id. at 536 (emphasis added).
“The article generally, as opposed to the specific identity contained within it, involved
a matter of paramount public import.” Id. at 537 (emphasis added).
Snyder v. Phelps, 562 U.S. 443 (2011), removed any conceivable ambiguity on this
score. There, protestors held up hateful signs at a soldier’s funeral—some about public issues (“God Hates the USA”), some about the fallen soldier (“You’re Going to Hell”).
The Court held that the First Amendment protected the entire protest, because its
“overall thrust” and dominant theme” “spoke to broader public issues.” Id. at 454.
Snyder—like Bartnicki and Florida Star—thus flatly contradicts Plaintiffs’ salamislicing approach to First Amendment protection.

12

Plaintiffs derive their “logical nexus” test from Vassiliades v. Garfinckel’s, 492 A.2d
580 (D.C. 1985)—a case in which a doctor making a public presentation about cosmetic surgery used before-and-after photographs of one of his patients. Vassiliades
does not support Plaintiffs’ argument. One, the court simply did not address the question here: whether disclosures should be judged in the aggregate or line by line. Rather, the court noted that “the photographs” (plural) lacked a “nexus” with public issues, without suggesting it was considering the disclosed photographs separately, rather than collectively. Id. at 590.
Two, even assuming the D.C. Court of Appeals’ 1985 opinion in Vassiliades could
be interpreted to hold that courts must parse speech line-by-line, any such interpretation cannot survive the Supreme Court’s later opinions in Florida Star, Bartnicki
and Snyder. As noted, under those cases, the “public concern” test turns on the “overall thrust and dominant theme” of the speech, not on the character of individual snippets of the speech.
Three, the Campaign would prevail even under Plaintiffs’ “logical nexus” test.
Vassiliades says that a disclosure has the necessary “nexus” to a public issue if it
“strengthen[s] … the credibility” of speech about that issue. Id. at 589. Publishing a
collection of emails in its entirety, without redactions, can certainly strengthen the
credibility of the overall disclosure, since redactions would likely raise suspicions that
the publisher has engaged in selective, misleading disclosures. Indeed, WikiLeaks’
“accuracy policy” prohibits redactions precisely to avoid accusations that WikiLeaks
has “tamper[ed] with the evidentiary value of … historical archives.” (Reply Ex. 1.)

13

Second, in an apparent effort to deny that the disclosure primarily concerns public
issues, Plaintiffs assert that only “a few emails” (or “a small portion of [the] emails”)
addressed public issues. (Opp. 48.) The assertion is wrong. In the first place, every
single email was a (1) work email (2) sent or received by “key members” of a major
political party’s staff (Opp. 66) (3) in the course of a presidential campaign. Every
single email thus inherently addressed political matters.
In the second place, the “leaked cache” included “thousands of emails” between “officials and party fund-raisers” “revealing in rarely seen detail … elaborate, ingratiating and often bluntly transactional exchanges.” (Mem. Ex. 5.) For example, in one set
of emails, a DNC official tells “Tennessee donor Roy Cockrum”: “If [you] were willing
to contribute $33,400 … your generous contribution would allow you to attend a small
roundtable we are having with President Obama.” (Reply Ex. 2.) These “thousands”
of emails all deal with public issues, since they all show the public the extent to which
the DNC sold, and wealthy donors bought, access and influence to elected officials.
In the third place, a court applying the public-concern test must examine “all the
circumstances of the speech”—not just “content,” but also “context.” Snyder, 562 U.S.
at 454. According to Plaintiffs’ own allegations, the emails were published in order to
undermine Hillary Clinton’s campaign (not to undermine Roy Cockrum’s finances),
days before the Democratic National Convention (not days before Eric Schoenberg
applied for a new credit card), and on the internet (not in the Comer family’s
hometown newspaper). (Am. Compl. ¶ 51.) The context of the speech was public rather than private. That forecloses tort liability

14

Third, Plaintiffs worry that protecting disclosures will encourage “political espionage.” (Opp. 48.) That claim is empirically false. It is a crime to hack a computer. See
18 U.S.C. § 1030. Hackers also face liability for the separate tort of intrusion (which
does not have a public-concern element). And, under Bartnicki, a speaker involved in
hacking a political opponent’s emails cannot claim First Amendment protection. 532
U.S. at 529–30. These safeguards ensure that those who engage in “political espionage” can be punished.
In fact, Plaintiffs’ argument is a frontal assault on Bartnicki itself. In Bartnicki,
the Court ruled that “the normal method of deterring” the theft of another person’s
communications “is to impose an appropriate punishment on the person who engages
in” the theft. Id. at 529. The Court considered it “quite remarkable to hold that speech
by a law-abiding possessor of information can be suppressed in order to deter conduct
by a non-law-abiding third party.” Id. at 529–330. In arguing that a state may punish
disclosures in order to deter “political espionage,” Plaintiffs ask this Court to reject
Bartnicki’s holding and reasoning. The Court should summarily refuse that request.
Finally, amici Campaign Officials worry that protecting the disclosure here will
“chill participation in electoral politics.” (ECF No. 40 at 4.) Again, the Supreme Court
addressed this argument in Bartnicki. The Court acknowledged that “the fear of public disclosure of private conversations might well have a chilling effect on private
speech.” 532 U.S. at 533. But it ruled that these concerns “give way when balanced
against the interest in publishing matters of public importance.” Id. at 534. Bartnicki
thus forecloses amici’s arguments.

15

2. The public-disclosure claims also fail because this case does not
involve the kind of information that this tort protects
Plaintiffs say that this case involves “four types of private facts.” (Opp. 37.) Yet
none of these four types of facts is protected by the public-disclosure tort.
First, Plaintiffs allege that the emails disclosed Cockrum’s and Schoenberg’s social
security numbers, addresses, and related details. But public-disclosure liability covers only “embarrassing” facts. Harrison v. Washington Post Co., 391 A.2d 781, 784
(D.C. 1978). Social security numbers and addresses are not “embarrassing.”
Plaintiffs invoke Randolph v. ING Life Insurance & Annuity Co., 973 A.2d 702,
710 (D.C. 2009). But Randolph involved a different tort—“intrusion.” Id. Intrusion
(“obtaining … information by improperly intrusive means”) “should be kept clearly
separate” from public disclosure (disclosing information already obtained). Pearson,
410 F.2d at 705. Randolph held only that “conduct giving rise to the unauthorized
viewing of … [a] Social Security number … can constitute an intrusion,” “even though
there is no publication.” 973 A.2d at 710.
This distinction is critical. A defendant is liable for intrusion “whatever the content
of what he learns.” Pearson, 410 F.2d at 705 (emphasis added). “An eavesdropper to
the marital bedroom may hear marital intimacies, or he may hear statements of
fact … ; for purposes of [intrusion] liability that should make no difference.” Id. In
contrast, liability for public disclosure does depend on the content of the disclosure.
Id. Plaintiffs have sued for public disclosure, not intrusion. But a social security number, address, or phone number is not “embarrassing,” so its disclosure does not
amount to the specific tort alleged in this case.
16

Second, Plaintiffs conclusorily allege that the emails disclosed facts “suggesting”
Comer’s sexual orientation. But the complaint does not say what these “suggestive”
facts are. Even though we raised this problem in the motion to dismiss, and even
though Plaintiffs surely know which facts their own claim involves, Plaintiffs still
have not specified those facts. (Opp. 39–44.) This omission defeats Plaintiffs’ claim,
because it deprives us of “fair notice of what the … claim is and the grounds upon
which it rests.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). Until we and
the Court know precisely which facts Comer is talking about, neither we nor the
Court can assess (for example) whether those facts are embarrassing, whether Comer
kept them private, or whether they indeed “suggest” Comer’s sexual orientation. Indeed, Plaintiffs’ adamant refusal to specify the facts on which their own claim rests
indicates that the allegedly “suggestive” fact is, simply, Comer’s widely known job
title of LGBT Finance Director. But disclosing a job title is not a tort.
In any event, whatever the suggestive facts may have been, Comer’s claim fails
because he revealed the facts to colleagues in work emails, rather than keeping the
fact private. Plaintiffs insist that Comer has the right to define a “circle of intimacy”—
to decide which “colleagues” and even which “acquaintances” may know his sexual
orientation. (Opp. 42.) But that is not how this tort works. The law defines the relevant “circle” to consist “at most” of “family” and “close friends.” Restatement (Second)
of Torts § 652D, comment b. Comer has revealed the “suggestive” facts to people outside that sphere. He cannot now claim that facts that he shared so widely are so private, intimate, and embarrassing that their disclosure triggers tort liability.

17

Plaintiffs’ claim, in fact, turns the public-disclosure tort upside down. A publicdisclosure plaintiff normally claims that only his family knew an intimate fact, until
someone disclosed it to the outside world. But here, Comer wants to claim that the
only the outside world knew his sexual orientation, until someone disclosed it to his
family. That theory gets this tort backwards.
Comer’s claim also fails because one’s sexual orientation is not “shame[ful]” (Armstrong v. Thompson, 80 A.3d 177, 189 (D.C. 2013)). Plaintiffs cite cases from the 1980s,
1990s, and early 2000s ruling that the public-disclosure tort covers disclosure of sexual orientation. (Opp. 40.) But attitudes about sexual orientation have (to put it
mildly) changed since the 1980s. Even if the District would have considered homosexuality “shameful” then, it would not do so today.
Third, Plaintiffs allege that, in many of the disclosed emails, Comer made (unidentified) unkind remarks about his colleagues. (Opp. 38.) But the public-disclosure
tort covers only “intimate” information, such as “intimate personal letters” about
“family quarrels.” Restatement (Second) of Torts § 652D, comment b. Plaintiffs cite
no case that extends the tort to cover workplace correspondence about workplace
quarrels, and we are aware of none.
Finally, Plaintiffs allege that one emails revealed that Comer suffered from “an
illness.” (Opp. 38.) But this illness was a run-of-the-mill condition (“stomach flu”), not
an intensely embarrassing disease. (Mem. Ex. 13.) Further, Comer described the illness in a work email, not in an intimate letter to a relative or a confidential report to
a doctor. He thus failed to keep the illness “private,” as the tort requires.

18

3. The public-disclosure claim fails because Plaintiffs fail to allege
specific intent to disclose private facts
Finally, Plaintiffs fail to allege that the Campaign acted with the specific intent to
disclose information about them. To the contrary, the Campaign allegedly agreed to
disclose information “to damage the Clinton Campaign” (Am. Compl. ¶ 23); the private facts in this case have nothing to do with that goal.
Plaintiffs argue that the public-disclosure tort requires only general intent to publish something, not specific intent to publish the private fact. Not true; a defendant
is liable only if he “intentionally disclosed the private fact at issue.” Granger v. Klein,
197 F. Supp. 2d 851, 869 (E.D. Mich. 2002) (emphasis added).
Even assuming tort law does not require specific intent, the First Amendment
surely does. It is axiomatic that “a heightened intent requirement” applies to efforts
to penalize speech. Rice v. Paladin Enterprises, Inc., 128 F.3d 233, 247 (4th Cir. 1997).
Defamation law provides a useful analogy: Bartnicki relies on defamation cases and
holds that “parallel reasoning” “requires” the application of the same First Amendment principles in defamation and invasion-of-privacy cases. 532 U.S. at 535. A defendant cannot be liable for defamation simply because he intentionally publishes
something that contains a defamatory falsehood; rather, the defendant must have
specifically had “knowledge that [the statement] was false.” New York Times Co. v.
Sullivan, 376 U.S. 254, 280 (1964) (cited in Bartnicki, 532 U.S. at 535). For the same
reason, a defendant cannot be liable for public disclosure simply because he intentionally publishes something that contains a private fact; rather, the defendant must
at least know that the publication contains such facts.
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Moreover, a state may impose liability for the disclosure of truthful information,
“if at all,” “only when [the liability] is narrowly tailored” to a compelling interest.
Florida Star, 491 U.S. at 541; see Bartnicki, 532 U.S. at 528. But the state does not
have a cognizable (much less compelling) interest in punishing a defendant who does
not have the specific intent to disclose private facts. If the defendant never intended
to disclose private facts, punishing him will not directly deter such disclosures.
In fact, there is virtually no connection between the punishment Plaintiffs seek
and the Campaign’s alleged actions. Even under Plaintiffs’ theory, the Campaign did
not hack the emails, transmit the emails, or even possess the emails. Rather, Plaintiffs allege that the Campaign agreed that the Russians should disclose emails already in the Russians’ possession, for the purpose of harming candidate Hillary Clinton. Plaintiffs thus seek to punish a defendant who neither was involved in illegally
obtaining private information, nor ever specifically intended to disclose that private
information. The First Amendment does not tolerate such a blunderbuss approach.
C. Plaintiffs fail to state a claim for intentional infliction
Plaintiffs’ claims for intentional infliction fail for a number of reasons. First, tort
law and the First Amendment both foreclose liability because the disclosures here
deal with newsworthy matters and matters of public concern. (Mem. 31.)
Second, tort law forecloses liability because the defendants’ alleged conduct was
not “directed at” Plaintiffs. (Mem. 32.) A plaintiff normally may not recover for intentional infliction of emotional distress for “conduct … directed at a third person.” Bettis
v. Islamic Republic of Iran, 315 F.3d 325, 331 (D.C. Cir. 2003) (quoting Restatement

20

(Second) of Torts § 46). For example, if Smith murders Jones in the street, a bystander
who has just watched Jones die may experience intense emotional distress. Yet he
does not have an intentional-infliction claim, since Smith’s actions were “directed at”
Jones, not at the bystander. Restatement (Second) of Torts § 46, comment l. In this
case, the disclosure was “directed at” the Clinton campaign; nobody alleges that it
was directed at these three Plaintiffs. That means Plaintiffs’ claims fail.
Third, Plaintiffs fail to show that the disclosure was outrageous. (Mem. 32.) Plaintiffs instead shift focus, arguing that the alleged collusion was outrageous: “Defendants conspired with Russian agents and others to undermine an election and the very
foundation of our democracy—conduct that … would rightfully arouse shock and outrage.” (Opp. 51–52.) But that misses the point. Plaintiffs may sue only about the disclosure of their own information; they lack standing to raise generalized grievances
about the legitimacy of the election. The only question is thus whether the disclosure
itself was outrageous and Plaintiffs make no argument that it was.
Finally, Plaintiffs fail to show the necessary level of emotional distress. The law of
the District of Columbia “sets a high standard”; a plaintiff must show that the distress
is “so acute” that it is likely to cause “harmful physical consequences.” Ortberg v.
Goldman Sachs Group, 64 A.3d 158, 164 (D.C. 2013). Plaintiffs never even try to show
that Cockrum and Schoenberg experienced harmful physical consequences. Nor do
they try to show that the consequences Comer experienced were proximately caused
by the disclosure—rather than by other events in his life, such as his loss of “a longterm romantic relationship” (Opp. 55). The intentional-infliction claims fail.

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D. Plaintiffs fail to state a viable theory of vicarious liability
Since Plaintiffs do not allege that the Campaign published the emails, they must
show why the Campaign is vicariously liable for that disclosure. They fail to do so.
Conspiracy with Russia. Plaintiffs first assert civil conspiracy. The “elements”
of this theory are: “(1) an agreement … (2) to participate in an unlawful act” and “(3)
an injury caused by … (4) [an] overt act … done pursuant to and in furtherance of the
common scheme.” Halberstam v. Welch, 705 F.2d 472, 481 (D.C. Cir. 1983).
Plaintiffs assert a civil conspiracy between the Campaign and “Russian actors.”
But Plaintiffs have never alleged that the Campaign entered into an agreement to
reveal their social security numbers or sexual orientation. In fact, they have never
alleged that the Campaign even knew that the DNC emails contained these details.
Plaintiffs therefore claim that the Campaign entered into a “more general agreement” to cooperate to defeat Hillary Clinton, and that this “more general agreement”
makes it liable for the disclosure. (Opp. 27. n.10). This aggressive theory of vicarious
liability—under which the Campaign can be liable for a disclosure it neither committed nor agreed to, simply because it agreed to something else—is incorrect.
First, a plaintiff asserting civil-conspiracy liability must show that the defendant
agreed “to participate in an unlawful act.” Halberstam, 705 F.2d at 481 (emphasis
added). Plaintiffs cannot satisfy this element. “Cooperating” with someone to defeat
a particular candidate is not a tortious or unlawful act. Quite the contrary, it is association protected by the First Amendment. Therefore, an agreement to engage in such
cooperation does not constitute a civil conspiracy.

22

Second, the plaintiff must also show that the tort for which he is suing “was done
pursuant to and in furtherance of the common scheme.” Id. The alleged “common
scheme” here was a scheme “to damage the Clinton campaign.” (Am. Compl. ¶ 23.)
But exposing Comer’s sexual orientation does not further the scheme of damaging the
Clinton campaign. Neither does revealing social security numbers.
Third, Plaintiffs have in any event failed to plausibly plead a “more general agreement.” Plaintiffs contend that, even before the Campaign entered the picture, Russian actors had already independently decided to “defeat Hillary Clinton and help
elect Mr. Trump,” and had already independently “broke into [the DNC’s] computer
networks.” (Am. Compl. ¶ 23.) But if Russia already wanted to defeat Hillary Clinton,
and it already had the emails that would help it accomplish that objective, why would
it have needed to enter into an agreement with the Campaign to disclose them? Why
not just disclose the emails on its own? Plaintiffs have no good answers.
Conspiracy with WikiLeaks. Plaintiffs next assert a conspiracy with WikiLeaks.
To overcome WikiLeaks’ Communications Decency Act immunity, they cite Dennis v.
Sparks, 449 U.S. 24 (1980), which holds that federal judicial immunity does not protect a judge’s co-conspirator form a § 1983 claim. But Dennis involved a federal immunity from a federal law (§ 1983), while this case involves a federal immunity from
state law (D.C. tort and conspiracy law). In Dennis, the Court had to reconcile the
competing federal rules, but in this case, the Supremacy Clause means that the federal rule simply prevails. PLIVA v. Mensing, 564 U.S. 604, 621–23 (2011) (plurality).
The federal immunity trumps D.C. conspiracy liability, foreclosing Plaintiffs’ claims.

23

Aiding and Abetting. Plaintiffs last claim that the D.C. Circuit’s decision in Halberstam allows them to hold the Campaign liable on the ground that it aided and
abetted Russian actors. (Opp. 32.) But since Halberstam, the D.C. Court of Appeals
has stated that it “ha[s] not recognized the tort of aiding and abetting.” Sundberg v.
TTR Realty, LLC, 109 A.3d 1123, 1129 (D.C. 2015). The D.C. Court of Appeals’ later
interpretation of D.C. law thus supersedes, the D.C. Circuit’s earlier decision.
E. Plaintiffs fail to show that their theories of liability comply with the
First Amendment and vagueness doctrine
Responding to the argument that their tort theories violate the First Amendment,
Plaintiffs claim that the torts are content-neutral and thus immune from strict scrutiny. That is wrong. A law is content-based if it turns on “the communicative content”
of the speech regulated. Reed v. Town of Gilbert, 135 S. Ct. 2218, 2226 (2015). Each
of Plaintiffs’ tort theories does just that; each turns on what the speaker says, rather
than where or when or how he says it. If the disclosure consists of intimate facts, the
speaker is liable; if it consists of vanilla facts, he is not. That triggers strict scrutiny.
Responding to the argument that their tort theories are void for vagueness, Plaintiffs claim that the law frequently uses “imprecise standards.” (Opp. 59.) But that is
true only when the government regulates conduct; the government must regulate
“with narrow specificity” when it deals with speech. NAACP v. Button, 371 U.S. 415,
433 (1963). Terms such as “offensive” and “outrageous” violate this heightened vagueness standard; “‘outrageousness’ in [this] area … has an inherent subjectiveness
about it which would allow a jury to impose liability on the basis of the jurors’ tastes
or views.” Hustler Magazine, Inc. v. Falwell, 485 U.S. 46, 58 (1988).
24

F. Plaintiffs fail to state a claim under 42 U.S.C. § 1985
Section 1985(3) prohibits conspiracies (a) to deprive anyone “of the equal protection
of the laws, or of equal privileges and immunities,” (b) to prevent state governments
from providing “equal protection,” (c) to use “force, intimidation, or threat” to prevent
a citizen from “giving his support or advocacy” in a federal election, and (d) to “injure”
a citizen “on account of such support or advocacy.” Plaintiffs’ claims, brought under
the “support or advocacy” provisions, fail for a variety of reasons.
1. The § 1985(3) claim fails because Plaintiffs fail to allege state action
Our opening brief explains, in four steps, why Plaintiffs must allege state action to
state a claim under § 1985(3). First, § 1985(3) provides a remedy for conspiracies to
violate predicate rights defined by other laws; it does not create any freestanding
rights of its own. Second, § 1985(3) covers a purely private conspiracy if—but only
if—federal law protects the predicate right against private action. Third, the predicate right here—the First Amendment right to support a candidate in a federal election—is protected only against state action, not against private action. Fourth, Plaintiffs must therefore allege state action. (Mem. 42.) Plaintiffs have failed to do so.
Plaintiffs contest only the first step. They agree that § 1985(3)’s “equal protection”
and “equal privileges” provisions merely provide a remedy for violations of predicate
rights defined by other laws, but they insist that the “support or advocacy” provisions
work differently. They say that these provisions create a substantive right to support
federal candidates, that is “independent” of the Constitution, and thus covers both
private and state action. (Opp. 61.) Their reading is wrong.

25

First, Plaintiffs’ reading contradicts the Supreme Court’s, the D.C. Circuit’s, and
this Court’s precedents. The Supreme Court has ruled: “Section 1985(3) provides no
substantive rights itself; it merely provides a remedy for violation of the rights it
designates.” Great American v. Novotny, 442 U.S. 366, 372 (1979). Again: “The rights,
privileges, and immunities that § 1985(3) vindicates must be found elsewhere.” Carpenters v. Scott, 463 U.S. 825, 833 (1983). Once more: “§ 1985(3) [is a] remedial statute.” Ziglar v. Abbasi, 137 S. Ct. 1843, 1866 (2017). Similarly, the D.C. Circuit has
ruled: “[T]he rights protected by section 1985(3) exist independently of the section
and only to the extent that the Constitution creates them.” Hobson v. Wilson, 737 F.2d
1, 15 (D.C. Cir. 1984). And this Court has held: “There can be no recovery under section 1985(3) absent a violation of a substantive federal right.” Wiggins v. Philip Morris,
Inc., 853 F. Supp. 470, 480 (D.D.C. 1994).
Plaintiffs would limit all of these rulings to the “equal privileges” provisions of
§ 1985(3), deeming them inapplicable to the “support or advocacy” provisions. But
these rulings are categorical statements. They refer to “§ 1985(3),” not to “some parts
of § 1985(3)” or “some provisions of § 1985(3).” Moreover, in adopting this interpretation, the Supreme Court did not rely specifically on the wording of the “equal privileges” clause. Rather, it relied on the “language, structure, and legislative history of
§ 1985(3)” as a whole. Scott, 463 U.S. at 834; see Novotny, 442 U.S. at 381 (Powell, J.,
concurring) (“purpose, history, and common understanding of this Civil War Era statute”). There is no basis for ruling that the Supreme Court’s interpretation covers some
parts of § 1985(3) but not others.

26

Second, and more specifically, Plaintiffs’ reading contradicts the Supreme Court’s
decision in Scott. There, the Court refused to interpret § 1985(3) to cover “every concerted effort by one political group to nullify the influence or do other injury to a
competing group by … unlawful means.” 463 U.S. at 836. The Court cautioned that
accepting that view “would go far toward making the federal courts, by virtue of
§ 1985(3), the monitors of campaign tactics.” Id. For example, a broad reading “would
arguably reach the claim that a political party has interfered with the freedom of
speech of another political party by encouraging the heckling of its rival’s speakers
and the disruption of the rival’s meetings.” Id. Scott warned federal courts that they
“should not be quick to assume” the role of refereeing such disputes. Id.
Plaintiffs point out that Scott involved the “equal privileges” clause rather than
the “support or advocacy” clause of § 1985(3). (Opp. 64.) That’s true. Even so, Scott’s
reasoning is quite important here. Plaintiffs’ reading would produce precisely the results that Scott went out of its way to avoid. On their view, federal courts would become “monitors of campaign tactics.” Political parties would face claims that they had
conspired to “intimidate” their adversaries by heckling their speakers or disrupting
their rallies. Indeed, a federal case could arise any time two people agree to fire an
employee because of his political views, to start a bar fight with a customer wearing
political apparel, or to cyberbully a political opponent on Twitter. Yet Scott tells us to
avoid reading § 1985(3) so broadly that it encompasses such disputes. Plaintiffs may
not get around that instruction by invoking different words (“support or advocacy”)
in the same sentence of the same subsection of same statute.

27

Third, Plaintiffs in all events misread the statute. Section 1985(3) rests on Congress’ power to enforce “the Thirteenth, Fourteenth, and Fifteenth Amendments.”
Scott, 463 U.S. at 837; see Griffin v. Breckenridge, 403 U.S. 88, 105 (1971) (“powers
under § 2 of the Thirteenth Amendment”). Indeed, the statute is titled “An Act to
enforce the Provisions of the Fourteenth Amendment …” 17 Stat. 1871. Thus, the
support-and-advocacy clause is designed to enforce preexisting constitutional rights
against state action, not to create new rights against private action.
Plaintiffs’ contrary reading would make § 1985(3) unconstitutional. The enforcement clauses empower Congress to enact “remedial” laws enforcing preexisting rights;
they clearly do not empower it to enact “substantive” laws expanding those rights.
City of Boerne v. Flores, 521 U.S. 507, 524, 527 (1997). Most obviously, where a guarantee “prohibits only state action,” the power to enforce the guarantee does not reach
“purely private conduct.” United States v. Morrison, 529 U.S. 598, 622 (2000). In fact,
the Supreme Court struck down the criminal counterpart to § 1985(3) precisely because the Government applied it to the “action of private individuals.” United States
v. Harris, 106 U.S. 629, 639 (1883); see Morrison, 529 U.S. at 621 (reaffirming Harris).
The First Amendment (as incorporated by the Fourteenth) “restrains only official
conduct.” Scott, 463 U.S. at 833. The power to enforce it thus does not include the
power to create new rights against purely private conduct. Reading the “support or
advocacy” clause to create independent rights against private parties would render
the statute unconstitutional—or, at the least, raise grave constitutional doubts. The
Court should avoid those doubts by rejecting Plaintiffs’ reading.

28

Plaintiffs lack a persuasive response. They argue that the support-and-advocacy
provisions do not explicitly state that they “rely on rights defined elsewhere.” (Opp.
62.) But this argument fails to account for context. Congress enacted the supportand-advocacy clause (1) during Reconstruction, (2) in “An Act to enforce the Provisions of the Fourteenth Amendment … ,” (3) in a sentence that echoes the Fourteenth
Amendment by referring to “privileges and immunities” and “equal protection.” This
context shows that the clause merely enforces rights already secured by the First and
Fourteenth Amendments; it does not create new rights against purely private conduct.
Plaintiffs also invoke Kush v. Rutledge, 460 U.S. 719 (1983). That case is irrelevant.
Kush interpreted subsection (2) of § 1985. But this case involves subsection (3), not
subsection (2). Moreover, Kush considered whether a plaintiff must show racial or
class-based animus to prove a violation of § 1985(2). But the issue in this case is
whether a plaintiff must show state action, not whether a plaintiff must show classbased animus. Kush therefore has no bearing on this case.
Amicus Campaign Legal Center argues that the legislative history supports an
expansive reading of the statute. (ECF No. 38 at 16–19.) Yet in Scott, the Supreme
Court adopted a narrow interpretation of § 1985(3) even though it “realize[d] that
there is some legislative history to support the view that § 1985(3) has a broader
reach.” 463 U.S. at 836. This Court should do the same.
Amicus also cites Paynes v. Lee, 377 F.2d 61 (5th Cir. 1967). But Paynes says that
§ 1985(3) covers private conspiracies against the “right to vote.” Id. at 64. Under the
White Primary Cases (e.g., Terry v. Adams, 345 U.S. 461 (1953)), the Fifteenth

29

Amendment protects the right to vote even against some private conduct. Not so for
the right to speak. Thus, even if § 1985(3) reaches private conspiracies to prevent
voting, it does not reach private conspiracies to prevent speaking.
2. The § 1985(3) claims fail for additional reasons
Plaintiffs’ claims fail because Plaintiffs never plead that the purpose of the alleged
conspiracy was “to prevent” any voter “from giving his support or advocacy.” Plaintiffs
argue that, because the leaked emails included “communications of key members of
the DNC finance team,” a court can infer that the purpose of the conspiracy must
have been to intimidate the DNC’s donors. (Opp. 66.) But even if the leaks did target
the finance team, that would only show a purpose to expose the DNC’s reliance on
wealthy donors, not a purpose to intimidate or threaten the donors themselves.
Plaintiffs’ claims also fail because § 1985(3) does not allow respondeat superior liability. Plaintiffs assert that, notwithstanding the prohibition on respondeat superior
liability, the conspiracy is “attributable to the Campaign” because it was formed by
“senior” officials “acting as agents of the Campaign.” (Opp. 69.) Plaintiffs’ distinction
does not make sense. Respondeat superior is nothing more than the theory that an
employer is responsible for an act because one of its employees (i.e., one of its agents)
committed that act. That is precisely the theory that Plaintiffs advance here. It does
not matter whether they call it respondeat superior, vicarious liability, agency, attribution, or something else; regardless of the label, § 1985(3) does not allow it.
CONCLUSION
The Court should grant the Campaign’s motion to dismiss.

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Dated: December 29, 2017

Respectfully submitted,
/s/ Michael A. Carvin
Michael A. Carvin (DC Bar No. 366784)
Counsel of Record
Vivek Suri (DC Bar No. 1033613)
JONES DAY
51 Louisiana Avenue, NW
Washington, DC 20001
[phone]
[e-mail]
[e-mail]

Jeffrey Baltruzak (PA Bar No. 318156)
JONES DAY
500 Grant Street, Suite 4500
Pittsburgh, PA 15219
[phone]
[e-mail]

Counsel for Donald J. Trump for President, Inc.

31

CERTIFICATE OF SERVICE
I certify that on December 29, 2017, I electronically filed the foregoing with the
Clerk of Court using the CM/ECF system, which will send a notice of electronic filing
to all registered parties.
Dated: December 29, 2017

/s/ Michael A. Carvin
Michael A. Carvin
Counsel for Donald J. Trump for President,
Inc.