Sony Poses Greater Threat to First Amendment Than North Korea

By Trevor Timm, Guardian UK

25 April 15

If there is something newsworthy in the hacked email trove that WikiLeaks, released the media has the right to tell the public

ony, which spent weeks holding itself out as a free speech martyr after North Korea allegedly hacked its emails, is now trying to do more damage to the spirit of the First Amendment than North Korea ever did. The corporation is using high-powered lawyers and lobbyists in an attempt to stifle the rights of media organizations to publish newsworthy information already in the public domain. Ironically, some of those emails include Sony and the MPAA’s attempts to censor the Internet on a much larger scale.

Sony’s lawyer, David Boies, has spent the week sending out a hyperbolic letter to various news organizations, pressuring them to avert their eyes from the hacked email trove that WikiLeaks published on its site last week. Boies, while misleadingly claiming that journalists could be breaking US law by even looking at the emails, also said if media organizations refused to write stories about them, they would somehow be “protecting the First Amendment.”

The head of the MPAA and former Democratic Senator Chis Dodd went a step further yesterday, outrageously suggesting the US government should go after WikiLeaks in some fashion for re-publishing the emails.

It’s quite fitting that the day before Dodd made his true feelings on press freedom be known, the 2015 Pulitzer Prize winners were announced. On the list was New York Times reporter Eric Lipton, who won a prize for his important investigative series on how private companies and their lobbyists are colluding with state attorneys general to pursue corporate agendas in secret. Lipton’s series, which prominently featured emails from the hacked Sony trove in one story, showed that the MPAA was attempting to lobby state attorneys general to censor companies like Google after its controversial SOPA legislation spectacularly failed in Congress in 2011.

This week there’s been more stories about Sony that they apparently don’t want you to read: Dodd’s recommendations to studio heads about to which of his Republican former colleagues they ought to direct their political donations; movie industry lobbying on behalf of a controversial trade agreement; how the rich and powerful get their children into Harvard; and how Sony executives pirated books about hacking despite their militant public anti-pirating stance.

David Boies, one of the nation’s most experienced Supreme Court lawyers, should probably remind Dodd (and himself) that America’s highest court made clear well over a decade ago that news organizations have a First Amendment right to publish newsworthy information that they know was stolen, as long as they did not participate in the underlying crime. This has been crystal-clear free speech law in the United States since the year 2001 – which is why the proper reaction to this letter can be found at Techdirt, the excellent technology news site headed by journalist Mike Masnick. Techdirt posted their public response to Sony after receiving the aforementioned letter in the mailbox Monday night: “Go pound sand.” (They also helpfully noted that Boies’ letter was “ridiculous, wrong on the law and pointless.”)

News organizations should be openly and loudly castigating Sony’s attempts to suppress their reporting rather than staying silent. Boies claimed in his letter that WikiLeaks is “incorrect” in its assertion that the information belongs in the public domain, but the emails have already been public for months, WikiLeaks just made them easily searchable and safer; now journalists don’t have to worry about downloading them from a shady source and getting malware.

It should go without saying that no one is condoning the act of hacking into Sony’s email in the least bit. Breaking into servers with malicious intent is a criminal act and we should all hope that rank and file employees do not have their privacy violated (and that they receive restitution from Sony for the company’s lax and allegedly negligent security practices). But the motivations of hackers does not oblige news organizations to ignore newsworthy, public information.

Not all sources of leaks are like Daniel Ellsberg or Edward Snowden. Often, they have a self-serving or nefarious agenda – whether it’s settling turf wars, trying to score vendettas or embarrassing another person or entity for underhanded reasons. Nevertheless, the content of what they reveal can be in the public interest and it’s up to journalists to make that judgement - not corporations trying to pressure them into silence.