Following the recent cyber-attack on Sony Pictures Entertainment, numerous media outlets received a threatening letter from David Boies, Sony’s lawyer, demanding that they not republish or otherwise use the hacked Sony documents and destroy any copies that they may have. The letter warns that Sony “will have no choice but to hold you responsible” if the documents are “used or disseminated … in any manner.” There is at least an element of consistency in Sony’s decision to capitulate to the hackers by self-censoring its film project while demanding similar deference from the press.
Not only would Sony find it extremely difficult to enjoin the press from reporting on the hacked Sony documents, but it also might not be able to recover monetary damages from leaks reported in the press. The First Amendment allows the press to publish information that might otherwise be private if it is newsworthy, even when it is obtained unlawfully (or “stolen,” as Boies repeatedly claims).
In Bartnicki v. Vopper, the U.S. Supreme Court held that the First Amendment protects reports about a matter of public concern even if they disclose the contents of illegally obtained communications. Bartnicki involved a radio station’s broadcast of parts of a private phone conversation discussing a labor dispute, which had been illegally intercepted by a third party. Vopper, the radio commentator who had received and broadcast the recording, had reason to know that the conversation was unlawfully obtained. Nevertheless, the Supreme Court found that the subject matter of the conversation was newsworthy, noting that the press had the right to publish information of “great public concern” obtained from documents stolen by a third party.
Moreover, U.S. courts are reluctant to second-guess journalists with respect to what information qualifies as newsworthy and instead defer to the editorial judgment of the press. Today’s saturated social media environment only amplifies the difficulty in corralling “news” into traditional topics.
The Bartnicki Court did acknowledge, however, that some intrusions on privacy are qualitatively more offensive than others. Leaks and scoops are a staple of Hollywood reporting but, according to Boies, some of the leaked information includes trade secrets and confidential information about Sony’s employees. Some, like Aaron Sorkin, have taken a moralistic position that news outlets are “spectacularly dishonorable” for publishing Sony documents. Others, like Andrew Wallenstein of Variety, have concluded that, despite potential journalistic ethical concerns, the Sony hack cannot be ignored and details should be reported because it is newsworthy.
Sony might have stronger footing for protecting truly private information. The Seventh Circuit has observed that, despite “the modern Supreme Court’s expansive view of freedom of speech and of the press … the Court has not yet completely extinguished state-law protections … against publication of intimate details of people’s private lives.” The federal appellate court reiterated that it has recognized a constitutional right to the privacy of medical, sexual, financial, and perhaps other categories of highly personal information. If, for example, news outlets were to publish social security numbers, a court may find this “highly personal information” is not of “great public concern.” It is less likely that a consensus would form over protecting details of celebrity and film executive compensation.