The Sony Hack and the First Amendment

If Sony sued to keep the press from publishing info acquired by hackers, it would probably lose.


No comment.

Sony's attorney David Boies has sent a letter to The New York Times, The Wall Street Journal, The Hollywood Reporter, and other outlets about the data hackers recently seized from the studio. "We have reason to believe that you may possess, or may directly or indirectly be given, illegally obtained documents or other information," Boies wrote. Sony, he informed them, "does not consent to your possession, review, copying, dissemination, publication, uploading, downloading, or making any use of the Stolen Information." He urged the papers to immediately inform him of any material from the hack that they have, and then to destroy it. If they ignore this request and publish stories based on the material, the company may sue them.

Would Sony prevail in such a suit?

Eugene Volokh doesn't think so. Writing in The Washington Post, the UCLA law prof points to two precedents that would spell trouble for the studio:

…and then, when you bought an HDTV, it would sue for alienation of affection.

First, let's look at Bartnicki v. Vopper (2001). Vopper was a radio commentator who received a tape recording of an illegally intercepted conversation; he apparently wasn't involved in the illegal interception, but a reasonable recipient of the recording should have realized that the conversation had been illegally intercepted, and Vopper likely actually did realize this. Vopper played parts of the conversation on his program, and was sued under a federal statute that made both the interception and the use of such conversations illegal (both a crime and a tort).

But the Supreme Court held that Vopper's broadcast incorporating the intercepted communication was protected by the First Amendment. Though the interception was illegal (and could constitutionally be kept illegal), the playing of illegally intercepted material under these circumstances was constitutionally protected, at least when the broadcaster wasn't involved in the illegal interception, and the communication was on "a matter of public concern." (The particular conversation involved union leaders who were allegedly discussing physically attacking managers.)

Not a Sony picture.
United Artists

The second precedent is Pearson v. Dodd (D.C. Cir. 1969)—not a Supreme Court precedent, but still influential. Some ex-employees of Sen. Thomas Dodd, in league with some current employees, took some documents from the senator's office without permission, photocopied them, and then sent the copies to investigative reporters Drew Pearson and Jack Anderson. Pearson and Anderson published articles based on the documents. Dodd sued, claiming the publication was an invasion of privacy, and also constituted "conversion," which is to say basically use of stolen property.

The D.C. Circuit rejected these theories, concluding that the publication just wasn't tortious (and thus not having to reach the First Amendment issue). When information is on a matter of public concern, the court held, the fact that it was illegally leaked doesn't make publishing it an invasion of privacy. And the information in the copied letters does not "fall under the protection of the law of property, enforceable by a suit for conversion."

Volokh adds some caveats, including a note that if someone were to publish an entire script—the hackers' booty apparently includes the screenplay for an upcoming James Bond movie—that would open the publisher to charges of copyright infringement. For the most part, though, any media outlet sued by Sony for violating the commands in Boies' letter would have a pretty strong defense.

NEXT: More on the "Sony Disclosure Problem"

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  1. Sony? Ms. Streisand. I’m sure you two have met.

  2. Unfortunately, the question is no longer whether Sony would prevail in a lawsuit. On principle, some media organization must test this in order to protect the First Amendment. With luck, the Christmas dump will meet expectations and there will just be another free-for-all, making Boies’ point moot.

    From a long term data security perspective, the more Sony pays for having no clue about what data to retain, where and how to retain it, etc., the sooner people will need to give real thought to what data security is. Hint: it’s no more than 20% a technical problem. But we have a lot of learning ahead before that sinks in.

    1. t’s no more than 20% a technical problem.

      Shh. It’s easier to blame the networking guy.

  3. Really, I think this will all be a boon for Sony. It is the best publicity for their film The Interview anyone could possibly have. I would not be shocked if it turns out later this was all a publicity stunt authorized by Sony Execs.

    I do remember, however, reading that Lucas once said if he had time and a hammer he would smash every bootleg copy of the Star Wars Holiday Special. He might be saying that about the new Disney film coming out as well.

    In honor of leaked scripts:

    (to assembly)
    This holiday is yours but, we all share with you the hope that this day brings us closer to freedom, and to harmony, and to peace. No matter how different we appear, we’re all the same in our struggle against the powers of evil and darkness. I hope that this day will always be a day of joy in which we can reconfirm our dedication and our courage. And more than anything else, our love for one another. This is the promise of the Tree of Life.

    A slow version of the theme to “Star Wars” begins to play.

    We celebrate a day of peace. A day of harmony. A day of joy we can all share together joyously. A day that takes us through the darkness. A day that leads us into might. A day that makes us want to celebrate the light. A day that brings the promise that one day, we’ll be free to live, to laugh, to dream, to grow, to trust, to love, to be.

  4. I looked at the paycheck which had said $7434 , I didn’t believe that my mom in-law realy bringing in money in their spare time at their computer. . there brothers friend has been doing this for only 16 months and just paid for the morgage on there place and bought a top of the range Aston Martin DB5 .
    You can join just easy ——-

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