The New York Times is playing it safe on the Sony documents.
“This is stolen material,” New York Times reporter Jeremy Peters said today on MSNBC’s “Morning Joe.” “As our lawyers are telling our reporters at the New York Times, we are not to open these e-mails. We are not to actively look at them. We are only allowed to report on what has been out there because this is stolen material and trafficking in it is, in itself, a criminal act.”
This stolen material has been dredged up by a hacking effort known as “Guardians of Peace” against Sony Pictures Entertainment, which produced “The Interview,” a film starring Seth Rogen and James Franco as journalists who sign on to a government plot to assassinate North Korean strongman Kim Jong Un. Reams of internal Sony information have spilled from the hack — e-mails, data on salaries and business considerations — not to mention the fact that producer Scott Rudin called star Angelina Jolie a “minimally talented spoiled brat.”
Sony demands that media organizations do not republish the hacked material. In a strongly worded Dec. 14 letter to publishers, superlawyer David Boies wrote that Sony “does not consent to your possession, review, copying, dissemination, publication, uploading, downloading, or making any use of the Stolen Information.” Those who dis Sony on this matter are in trouble, according to Boies, who writes that the company will have “no choice but to hold you responsible for any damage or loss arising from such use or dissemination by you.”
The Times has taken that threat seriously. In a same-day piece on the Boies letter, the newspaper turned up its nose at other outlets that have participated in the disclosures: “Until now, the data has provided a feast for traffic-hungry websites like Fusion and those owned by Gawker Media, along with some mainstream news organizations like Bloomberg, which last week posted an article — without citing names — revealing details of employee medical records that were made public by the hackers.”
As for its own approach, that same Times piece disclosed, “The Times has reported on some Sony emails and company-related data based on the accounts of other news organizations and on statements from Sony executives. Sony representatives have acknowledged the authenticity of the emails and data.” Huffington Post media reporter Michael Calderone obtained further clarification from The Times, which outlined a balancing act: “The Sony situation poses difficult questions. We don’t condone hacking into private computer systems. We also don’t like depriving our readers of information they care about.”
Actor Brad Pitt, Jolie’s husband, found something unsavory in the reporting frenzy: “I don’t see a difference in News Corp hacking phone calls and hacking e-mails. I don’t think we should be able to participate,” said Pitt. “I think someone’s conversation, whether in e-mail or in person, should be private. We shouldn’t be participating and these sites that are disseminating them should stop. They won’t. And we should stop reading them. We won’t. It’s more of an indictment on us, I think.”
Pitt sees no difference in these two things; the law sees an enormous one. As the Erik Wemple Blog has noted previously, Supreme Court jurisprudence protects U.S. media organizations that lawfully receive information that’s been unlawfully obtained. Say what? Yes — if some scoundrel hacks into a computer or illegally tapes a phone call and then posts it to the Internet, there’s nothing illegal about passing it along. That very protection is encased in a 2001 Supreme Court case, Bartnicki v. Vopper, which involved a scandalous recording of a phone conversation, one that had been allegedly recorded illegally, that ended up in the hands of talk radio host Frederick Vopper. Justice John Paul Stevens wrote for the court that Vopper acted within the law: “[A] stranger’s illegal conduct does not suffice to remove the First Amendment shield from speech about a matter of public concern.”
Clay Calvert, a University of Florida professor, told the Erik Wemple Blog for a previous post, “If the news media lawfully obtain truthful information about a matter of public significance, then the government may not constitutionally punish publication of the information, absent an interest of the highest order.” For further analysis, see this post by Eugene Volokh, who notes that two of the six justices in the majority opinion opined that the information needs to be of “great public concern.”
Bold text added to highlight the triviality of much of the Sony hacking oeuvre. Is a Hollywood producer’s attitude toward Angelina Jolie a matter of public significance? Are the negotiations of New York Times journalists with Sony executives of matter of public significance? Is the fact that Sony bigwig Amy Pascal had to apologize over racially insensitive e-mails a matter of public significance? Well, she apologized and her replacement appears likely, according to the Hollywood Reporter. Case closed on public significance.
Appeals to suppress the work of these hackers automatically elicit sympathy. In the pantheon of American leaking heroes, the Guardians of Peace aren’t Daniel Ellsberg (Pentagon Papers); they aren’t W. Mark Felt (Watergate); they aren’t Jeffrey Wigand (tobacco); they aren’t Edward Snowden (National Security Agency). Instead, they’re a group that has threatened terrorism on theaters that show “The Interview.”
Yet it’s not the media’s job to judge the people who steal information. The media’s job is to judge the stolen information itself: If it’s worth publishing, then publish.
Some may argue that media trafficking in the Sony documents will only encourage other hackers to break into other companies’ systems. If that’s true, then those companies should buttress their systems. But either way, that’s not the problem of news outlets.