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Wednesday, February 22, 2012

Center for American Progress Action Fund (CAPAF) General Counsel responds to Heartland Institute

CAPAF General Counsel Responds To Heartland Institute

On February 19, 2012, the Heartland Institute’s General Counsel, Maureen Martin, sent a letter by e-mail and post addressed to this ThinkProgress reporter, in response to revelations about the Heartland Institute’s inner workings. Yesterday, Debbie Fine, General Counsel for the Center for American Progress Action Fund, replied to Martin.


The text of the letter sent to the Heartland Institute is below.
Dear Ms. Martin:
I am General Counsel of the Center for American Progress Action Fund (“CAP Action”). This letter responds to your February 19 message regarding our reporters’ coverage of documents related to the Heartland Institute. Please be assured that CAP Action takes the accuracy of its reporting seriously.
Your letter asserts that the document entitled “2012 Heartland Climate Strategy” is “fabricated and false.” CAP Action has no interest in attributing a fabricated document to Heartland. Given the seriousness of this charge, and the fact that this document’s “tone and content closely matched that of other documents that [Heartland] did not dispute,”1 we ask your assistance in verifying that the document is in fact “fabricated” rather than, for example, a draft of which you were not immediately aware. Please let me know the efforts that Heartland undertook to ensure that the document “was not written by anyone associated with Heartland,” as well as the “obvious and gross misstatements of fact” it contains. We have removed this document from the website while awaiting your response.
Your letter also notes that “Heartland has not authenticated” the remaining documents in the week since they were made public. To my knowledge, Heartland has never claimed that these documents were fabricated, and your February 15 admission that they were sent by a Heartland staff person to “an unknown person” posing as a Heartland board member suggests they are genuine. So does Heartland’s February 15 apology to the donors identified in the documents. Subsequently, the newly-admitted source has indicated that he received these documents directly from Heartland and has not altered them. Nevertheless, we await the outcome of your continued efforts to “authenticate” these documents.
Finally, your letter suggests that publication or even discussion of the Heartland documents “is improper and unlawful” because Heartland deems them “confidential.” The Supreme Court has flatly rejected this notion, repeatedly declaring that the First Amendment protects the right to publish information obtained lawfully – even if underlying sources act improperly, erroneously, or in violation of the law. See, e.g., Bartnicki v. Vopper, 532 U.S. 514, 535 (2001). As CAP Action has reported, our bloggers received the documents via an anonymous email. Our reporters did nothing to purloin any documents, they did not encourage anyone else to do so, and they did not know the sender’s identity until many days later, on February 20, when the Huffington Post article titled: “The Origin of the Heartland Documents” was published. Faced with a substantially similar set of relevant facts in Bartnicki, the Supreme Court ruled that the First Amendment prohibited recovery of damages for dissemination of an illegally-made recording that was left in a defendant’s mailbox because “a stranger’s illegal conduct does not suffice to remove the First Amendment shield from speech about a matter of public concern.” Id.; see also Jean v. Massachusetts State Police, 492 F.3d 24, 29 (1st Cir. 2007) (applying Bartnicki). The same is true here, although we note that CAP Action takes no position as to whether the documents were lawfully obtained by the source.
CAP Action has taken extraordinary steps to ensure that Heartland’s perspective on these documents is included in our coverage. As your letter notes, CAP Action immediately and conspicuously linked to Heartland’s February 15 press release regarding the documents and has subsequently noted Heartland’s assertions in other blog posts in order to ensure that your position on these documents was reported fully and fairly. If you would like to provide us with additional information, including answers to the questions above, we will certainly consider it.
This is not a full recitation of the relevant facts and CAP Action reserves all its rights, remedies and defenses concerning these issues.
Debbie Fine
General Counsel
1 Justin Gillis and Leslie Kaufman, Leak Offers Glimpse of Campaign Against Climate Science, N.Y. Times, February 16, 2012, at A23.

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