Sonys Legal Threats in Hacking Scandal Face First Amendment Hurdle

Would Sony Pictures Entertainment have a legal basis to stop news media from publishing stories about company secrets unearthed in the giant hacking scandal?

As WSJ reported, Sonys lawyer, David Boies, sent a letter Sunday to media outlets, including The Wall Street Journal, the New York Times and Bloomberg News, warning them not to publish or use anything discovered in the trove of internal files stolen in last months Sony cyberattack and leaked online.

The effort by Sony to keep a lid on the hacked documents has renewed First Amendment questions over the legality of publishing information stolen by hackers. Legal experts say Sony and Mr. Boies probably wouldnt get very far in court if the company followed through with a lawsuit.

It would be very hard for Sony to block media outlets from publishing most anything thats in the public interest, University of Minnesota Law School professor William McGeveran, who specializes in information law and data privacy, told Law Blog. And courts, he said, are quite deferential to the established media and its judgment about whats newsworthy.

UCLA law professor Eugene Volokh, over at the Washington Posts Volokh Conspiracy blog, also says that Sony most likely wouldnt have a legal leg to stand on.Thats true, he said, at least as to most of the information that media outlets would want to publish.

He and Mr. McGeveran point to two key legal precedents.

The first is Bartnicki v. Vopper, a Supreme Court case from 2001. The high court ruled 6-3 in favor of a radio broadcaster that aired a cellphone conversation between a teachers union president and a top union negotiator that someone else had recorded illegally. In this situation, in which the station played no part in the illegal interception, First Amendment interests trumped privacy concerns.

A strangers illegal conduct does not suffice to remove the First Amendment shield from speech about a matter of public concern, wrote then-Justice John Paul Stevens for the majority.

The other case is a U.S. Court of Appeals for the D.C. Circuit ruling from 1969 involving a lawsuit filed by then-U.S. Sen. Thomas J. Dodd against two investigative reporters, Drew Pearson and Jack Anderson, over articles they published based on leaked documents that ex-staffers had purloined from the Connecticut lawmakers office.

When information is on a matter of public concern, the court held, the fact that it was illegally leaked doesnt make publishing it an invasion of privacy, writes Mr. Volokh, summing up the decision.

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Sonys Legal Threats in Hacking Scandal Face First Amendment Hurdle