Is The Threat of David Boies To Media Over Use Of Hacked Documents Real?

There are continuing rumblings in the media about the threat of Sony Pictures Entertainment (SPE) lawyer David Boies over media sites using material hacked from the studio, including embarrassing emails where executives dish on leading stars like Angelina Jolie and the disclosure of contract information. Boies has warned that such material must be ignored or destroyed and suggested legal repercussions in the use of “stolen information.” But how serious is this threat? In my view, not very.

I should state at the outset that I have had the pleasure of appearing with David at various speeches and I like him a great deal. More importantly, I respect him greatly as a lawyer. Finally, he is doing his best to protect a client who has been devastated by hackers who some believe originate in North Korea (where the “Dear One” is royally ticked over a mocking movie based on his character).

The hack attack is the Wikileaks scandal of Hollywood. Stars are portrayed as spoiled brats and dysfunctional idiots while differences in pay are being bantered about by pundits. Boies has tried to stop the torrent of bad press with a letter sent to media “to ensure that you are aware that SPE does not consent to your possession, review copying, dissemination, publication, uploading, downloading or making any use of the stolen information, and to request your cooperation in destroying the stolen information.” He further warns that the publication of this material furthers “an on-going campaign explicitly seeking to prevent SPE from distributing a motion picture.” That suggests that media could be sued for not just using the material but aggravating the injury from this campaign. Boies states that his client “does not consent to your possession, review, copying, dissemination, publication, uploading, downloading, or making any use of the stolen information.” In case there is any confusion, Boies warns that “If you do not comply with this request, and the stolen information is used or disseminated by you in any manner, Sony Pictures Entertainment will have no choice but to hold you responsible for any damage or loss arising from such use or dissemination by you.”

The fact is that SPE has little ability to threaten the “Hermit Kingdom” or Kim Jong Un. Ironically, activists are striking back by dropping copies of the movie “The Interview” over North Korea by balloon.

Everyone from the New York Times to the Hollywood Reporter have received the letter.

Since the media were not involved in the hacking (for which people can be legitimately sued as well as prosecuted), the First Amendment protects the use of this information in my view as a matter of public interest. In 2001, the Court ruled 6-3 in Bartnicki v. Vopper, that a radio broadcaster that aired an illegally recorded cellphone conversation between a teachers’ union president and a top union negotiator was not liable given the protections of the First Amendment. Former Justice John Paul Stevens wrote that “A stranger’s illegal conduct does not suffice to remove the First Amendment shield from speech about a matter of public concern.”

Another case should be familiar to Christopher Dodd, who has been working to control the damage of the hack as Chairman and CEO of the Motion Picture Association of America. His father, Senator Thomas Dodd, sued two investigative reporters, Drew Pearson and Jack Anderson, over their use of leaked documents that ex-staffers took from his Senate office. In Pearson v. Dodd, the

The court ruled against Dodd’s dad:

Here we have separately considered the nature of appellants’ publications concerning appellee, and have found that the matter published was of obvious public interest. The publication was not itself an invasion of privacy. Since we have also concluded that appellants’ role in obtaining the information did not make them liable to appellee for intrusion, their subsequent publication, itself no invasion of privacy, cannot reach back to render that role tortious.

This is not to say that a credible argument cannot be made. Indeed, there are a few troubling cases of prior restraint, including one this year. However, those district court judges who have ignored constitutional protections and imposed prior restraints have often been reversed. This was the case in the clearly improper prior restraint imposed against Business Week magazine in publishing documents that were placed under seal in Procter & Gamble Co. v. Bankers Trust Co. The Sixth Circuit reversed, 78 F.3d 219 (6th Cir. 1996) and stressed that prohibiting the publication of a news story is “the essence of censorship.” The court ruled:

This appeal raises the issue of whether the bedrock First Amendment principle that the press shall not be subjected to prior restraints can be set aside when a federal court perceives a threat to the secrecy of material placed under seal by stipulation of the parties. We are guided by the holding of the First Circuit in In the Matter of Providence Journal Company that even a temporary restraint on pure speech is improper “absent the most compelling circumstances.” 820 F.2d 1342, 1351, modified on reh’g by 820 F.2d 1354 (1st Cir. 1986), cert. granted and dismissed on other grounds .

Those compelling circumstances are extremely rare and pretty dire. It is not really the type of thing that arises when Angelina Jolie is called a “minimally talented spoiled brat.”

In other words, the letter falls short of a serious threat against the media. I would however love to see Boies sue the “Dear One.” That would make for not just a great case but an even greater movie. Could The Lawsuit be a sequel to The Interview?

Here is the letter: Boies Letter.

Source: Hollywood Reporter