One of the defendants in a lawsuit over leaked e-mails involving governor's office staffers is using legal precedent for First Amendment rights to make his case.
Michael Corwin, the former head of the now defunct Independent Source PAC (ISPAC), is asking a federal court to dismiss a lawsuit against him that alleges he disseminated "stolen e-mails." It stems from his organization's public disclosure in 2012 of several messages from personal e-mail accounts protected by "a constitutional right to publish information of great public concern even when it is obtained from documents stolen from a third party."
The e-mails Corwin disseminated were mostly about a controversial 25-year racino lease deal that Corwin's political action committee made hard-hitting reports on. They showed officials with the Downs at Albuquerque racino communicating with top state officials before the state awarded the Downs the lucrative, $1 billion lease extension. Corwin's reporting for ISPAC criticized the deal as rigged in favor of the Downs, whose owners had given campaign contributions to Gov. Susana Martinez.
In the summer of 2012, Corwin published some of the emails on ISPAC's website, which were soon picked up by news outlets.
Corwin, in his file for dismissal, also says he handed some of the e-mails over to the Attorney General's Office and the Federal Bureau of Investigation during the same period, asking both agencies to investigate the perceived collusion between the Downs owners and the governor's office in the e-mails.
"The AG then requested copies of all the emails in Mr. Corwin's possession," his motion to dismiss reads, "including those of a private nature. Mr. Corwin forwarded the emails in his possession to the AG on July 16, 2012."
Those e-mails "of a private nature" include personal online orders from Martinez. In November 2012, SFR filed a public records request to Attorney General Gary King requesting all copies of correspondence between ISPAC and King's office. King provided all the e-mails Corwin had handed over, including the personal ones. The e-mails of a private nature "were provided by Mr. Corwin only to the AG after that office repeatedly requested that he provide a copy of all of the emails in question, not just those he had published due to their public nature. Mr. Corwin made no other disclosures of the emails," the dismissal motion reads.
Soon, SFR published the entirety of the e-mails, which numbered into the hundreds, handed over by King's office for its December 2012 cover story "The Year in Closed Government: How a private email network exposed the secret dealings of top government officials."
The lawsuit against Corwin stems from four people whose names appeared on some of the messages SFR published, including two staffers who used to work in the governor's office. It also names three other defendants—Anissa Ford, Jason Loera, state Democratic Party Chair Sam Bregman and former Martinez campaign manager Jamie Estrada—and alleges that they all "illegally and surreptitiously hijacked, intercepted, stole, accessed, disclosed, and used plaintiffs' private and confidential email communications."
Though the dismissal motion admits that "some of the emails intercepted by Mr. Estrada were published by ISPAC and provided by Mr. Corwin to the media," it also denies that "Mr. Corwin is somehow connected to Mr. Estrada."
"To the contrary, Mr. Corwin has met Mr. Estrada only once," the motion reads. "During that single meeting, the subject of the intercepted emails never surfaced. In fact, Mr. Corwin did not receive the emails from Mr. Estrada, and Plaintiffs have not alleged that he did. At the time Mr. Corwin obtained the emails upon which this case is grounded, he had no knowledge whatsoever that they had been illegally obtained. More importantly, Plaintiffs have not alleged that Mr. Corwin had any reason to believe that the emails had been illicitly acquired."
Corwin's dismissal also says he obtained the e-mails from a "confidential source" that he still refuses to name.
He also argues that bloggers like himself "are no different than traditional journalists for purposes of First Amendment protection." He quotes the US Supreme Court ruling that a “stranger’s illegal conduct does not suffice to remove the First Amendment shield from speech about a matter of public concern.”
Corwin's motion continues: "In disclosing information from the allegedly illegally intercepted emails, Mr. Corwin was reporting and editorializing on issues of public concern. The attendant loss of privacy suffered by Plaintiffs and others is outweighed by freedom of speech and expression under the First Amendment."
Read his full motion below: