The opinion of the court was delivered by: HOLTZOFF
The problem presented in this case is whether a person who receives copies of documents that have been purloined from another and uses the information contained in them knowing that the originals have been purloined, is liable for damages to their owner. This question is answered in the affirmative to the extent that an action for damages lies under such circumstances. The Court expresses no opinion at this stage as to the measure of damages, and, in fact, whether substantial damages may be recovered under the circumstances of this case.
The plaintiff, Thomas J. Dodd, is a Senator of the United States. The defendants, Drew Pearson and Jack Anderson, are journalists, who write an article daily, popularly known as a "column". These articles are published more or less simultaneously in numerous newspapers throughout the United States. The plaintiff alleges in his second amended complaint that some of his former employees entered his offices without authority, rifled his files, purloined numerous papers, made copies of them, and delivered the copies to the defendants, who knew that the copies had been made from papers unlawfully obtained. The plaintiff further avers that the defendants from time to time published information contained in these papers, and sues for damages. The plaintiff moves for partial summary judgment solely on the issue of liability, leaving the question of the measure of damages for later consideration.
It appears from the record submitted on this motion that the following salient facts are established. On several occasions in June and July, 1965, two former employees of the plaintiff, at times with the assistance of two members of the plaintiff's staff, entered the plaintiff's offices without authority and unbeknownst to him, removed numerous documents from his files, made copies of them, replaced the originals, and turned over the copies to the defendant Anderson, who was aware of the manner in which the copies had been obtained. The defendants Pearson and Anderson thereafter published articles containing information gleaned from these documents.
"The Court does not have before it at this time the question whether the plaintiffs have a good cause of action for damages for conversion of the letters or for breach of trust or any other similar tort * * * The only matter that the Court has before it at this time is the question whether it may enjoin newspaper men from publishing copies of documents or information contained in documents that the newspaper men consider newsworthy, merely because the information or copies were obtained by a breach of trust."
The Court answered the question in the negative. In the case at bar, we are confronted with the converse query, namely, whether an action for damages would lie under such circumstances.
Freedom of the press comprizes freedom to publish. It liberates the press from prior restraint. It precludes equity from enjoining a publication. Nevertheless, the publisher is subject to the consequences of his act. Freedom of the press does not confer immunity from liability for a tort or from an action for damages. For example, the publication of a libel may not ordinarily be enjoined, but having published a defamatory statement, the publisher is subject to an action for damages. Similarly, freedom of the press does not comprize an unrestrained and untrammeled right of access to sources of information for use in publication.
In Trimble v. Johnston, D.C., 173 F. Supp. 651, 655, this Court wrote as follows:
"Freedom of the press comprehends a right to print and publish and to disseminate, circulate, and distribute matters that have been printed, without prior restraint, without license, without censorship, and without discriminatory taxation, but subject to the consequences of the law of libel and to the criminal penalties imposed by such laws, as those that ban obscenity, fraud, incitement to crime, espionage and the like, or that protect the needs of national defense and security. The press is not liberated, however, from amenability to law generally. For example, newspaper publishers and press associations are subject to the National Labor Relations Act, 29 U.S.C.A. § 151 et seq., the Fair Labor Standards Act, 29 U.S.C.A. § 201 et seq., and the Anti-trust laws, 15 U.S.C.A. § 1 et seq. the liberty of the press does not include any legal right of securing assistance from public officials in procuring information that it is desired to print. It does not comprise any alleged right of access to material not available to others, any more than it would include the privilege of attending closed meetings at which news of interest might possibly be gathered."
It follows that the question whether under circumstances presented in the case at bar and in the Liberty Lobby case, supra, the defendants are liable to an action for damages, is governed by different principles than the issue whether an injunction may be granted against the publication of copies of documents illegally obtained by persons who transmit them to the publisher.
On the uncontroverted facts, the individuals who without authority entered the plaintiff's office, rifled his files, removed documents and made copies of them, which they turned over to the defendants, would be liable for damages in trespass and conversion. They are not being sued. It is well settled, however, that a person who receives and uses the property of another that has been wrongfully obtained, knowing that it was so obtained, is likewise guilty of conversion and liable for damages.
This principle was recognized in an early case in the District of Columbia, Voss v. Baker, 1802, Fed.Cas.No.17,012, 1 Cranch C.C. (1 Dist.Col.) 104. The report of that case contains the following statement:
"Trespass for breaking up a scow. THE COURT instructed the jury that if the defendant, knowing that Tuel committed a trespass in taking and breaking up a scow of the plaintiff, received from Tuel the timbers and planks of the scow, knowing them to be the property of the plaintiff, which had been ...