What If Sony Sued to Keep the Press from Publishing Info Acquired by Hackers?

Sony’s attorney David Boies has sent a
letter to The Wall Street Journal, The New York Times, The
Hollywood Reporter, and other outlets about the data hackers
recently
seized from the studio. “We have reason to believe that you may
possess, or may directly or indirectly be given, illegally obtained
documents or other information,” Boies wrote. Sony, he informed
them, “does not
consent to your possession, review, copying, dissemination,
publication, uploading, downloading, or making any use of the
Stolen Information.” He urged the papers to
immediately inform him of any material from the hack that they
have, and then to destroy it. If they ignore this request and
publish stories based on the material, the company may sue
them.

Would Sony prevail in such a suit?

Eugene Volokh doesn’t think so. Writing in The Washington
Post, the UCLA law prof
points to two precedents that would spell trouble for the
studio:

First, let’s look at
Bartnicki v. Vopper (2001). Vopper was a radio commentator
who received a tape recording of an illegally intercepted
conversation; he apparently wasn’t involved in the illegal
interception, but a reasonable recipient of the recording should
have realized that the conversation had been illegally intercepted,
and Vopper likely actually did realize this. Vopper played parts of
the conversation on his program, and was sued under a federal
statute that made both the interception and the use of such
conversations illegal (both a crime and a tort).

But the Supreme Court held that Vopper’s broadcast incorporating
the intercepted communication was protected by the First Amendment.
Though the interception was illegal (and could constitutionally be
kept illegal), the playing of illegally intercepted material under
these circumstances was constitutionally protected, at least when
the broadcaster wasn’t involved in the illegal interception, and
the communication was on “a matter of public concern.” (The
particular conversation involved union leaders who were allegedly
discussing physically attacking managers.)

The second precedent is
Pearson v. Dodd (D.C. Cir. 1969)—not a Supreme Court
precedent, but still influential. Some ex-employees of Sen. Thomas
Dodd, in league with some current employees, took some documents
from the senator’s office without permission, photocopied them, and
then sent the copies to investigative reporters Drew Pearson and
Jack Anderson. Pearson and Anderson published articles based on the
documents. Dodd sued, claiming the publication was an invasion of
privacy, and also constituted “conversion,” which is to say
basically use of stolen property.

The D.C. Circuit rejected these theories, concluding that the
publication just wasn’t tortious (and thus not having to reach the
First Amendment issue). When information is on a matter of public
concern, the court held, the fact that it was illegally leaked
doesn’t make publishing it an invasion of privacy. And the
information in the copied letters does not “fall under the
protection of the law of property, enforceable by a suit for
conversion.”

Volokh adds some caveats, including a note that if someone were
to publish an entire script—the hackers’ booty apparently includes
the screenplay for an upcoming James Bond movie—that
would open the publisher to charges of copyright infringement. For
the most part, though, any media outlet sued by Sony for violating
the commands in Boies’ letter would have a pretty strong
defense.