Late last month, Sony Pictures Entertainment ("SPE") was the victim of a massive cyber-attack, which crippled the Hollywood studio’s network and stole more than 100 terabytes of data. Hackers have uploaded the data onto file-sharing networks, revealing unreleased movies, secret scripts, personnel documents, and embarrassing emails among executives. The cyber-attack, which experts say may be the most expensive ever on an America business, could set SPE back hundreds of millions of dollars in recovery costs, privacy lawsuits and lost productivity.
Naturally, the incident has received widespread media coverage. Earlier this week, however, star attorney David Boies sent a letter on behalf of SPE to various media outlets demanding that they “arrange for and supervise the destruction” of “illegally obtained documents or other information stolen from SPE.” Boies threatened that if the recipients did not comply with his request, “SPE will have no choice but to hold you responsible for damage or loss arising from such use or dissemination by you, including any damages or loss to SPE or others, and including, but not limited to, any loss of value of intellectual property and trade secrets resulting from your actions.”
Notably absent from the letter was any mention of the First Amendment. Indeed, various legal commentators have debated whether, on these facts, media outlets would be protected by the First Amendment, as interpreted by the U.S. Supreme Court in Bartnicki v. Vopper, 532 U.S. 514, 121 S. Ct. 1753 (2001). In Bartnicki, during "contentious" negotiations between a Pennsylvania school board and a local teachers union, the union's chief negotiator called the union president. Id. During their conversation, the union president suggested violence in response to the board's inflexibility. Id. at 518-519. Unbeknownst to either union official, someone intercepted and recorded that conversation. Id. at 518. The recording was later played on a radio talk show, which had been critical of the union. Id. at 519. Relying on various wiretapping statutes, the union officials sued a commentator on the show for broadcasting their conversation. Id.
The Supreme Court held that the First Amendment protected the commentator from liability, stressing the public importance of the union officials' conversation. Indeed, the Court found that the government's interest in protecting individual privacy must "give way when balanced against the interest in publishing matters of public importance," id. at 534, and that even "a stranger's illegal conduct does not suffice to remove the First Amendment shield from speech about a matter of public concern," id. at 535. However, the Court expressly declined to decide whether it would reach the same result when disclosures concerned "trade secrets or domestic gossip or other information of purely private concern." Id. at 533. Justice Breyer concurred, cautioning that while he agreed with the Court's holding, he "would not extend that holding beyond these present circumstances." Id. at 541 (Breyer, J., concurring).
Thus, whether the First Amendment protects media outlets from reporting on information stolen from SPE depends on whether the information reflects matters of public concern. Professor Eugene Volokh has argued that, with the exception of copyrighted material and "highly private" employee information (like medical records), the information probably is of public concern, as it involves "the behavior of a large and highly economically and culturally significant company." On the other hand, while the information is certainly newsworthy (as evidenced by widespread media coverage), Hollywood gossip seems incongruent with public union negotiations and the civic matters cited in Bartnicki, like the Pentagon Papers case. Bartnicki at 528 (citing New York Times v. United States, 403 U.S. 713, 91 S. Ct. 2140 (1971) (per curiam)). No matter which way a case on these facts would turn out, it would provide clarity on what exactly is a matter of public concern and, thus, how free the press truly is in the U.S.