The Interview: Cyber Attacks and The First Amendment

The fallout from a massive cyber attack on Sony in November escalated tremendously this week.  After exposing embarrassing emails and confidential company information, stealing the screenplay for an upcoming James Bond movie, and posting five movies on illegal file sharing sites, the hackers next threatened to attack cinemas slated to show the film The Interview.  The hackers alluded to 9/11 in their message and said their acts were in response to the “greed of Sony Pictures.”

The Interview is a comedy starring Seth Rogan and James Franco.  The plot revolves around two tabloid journalists who land an interview with North Korean dictator Kim Jong-un, and are then recruited by the CIA to turn their trip to into an assassination mission.

A North Korean foreign ministry spokesman called the movie an “act of terrorism” in June, promising “merciless” retaliation if it was released.  A group called Guardians of Peace claimed responsibility for the November Sony hack.  Many have speculated that the group hails from North Korea, and that the attack was meant to serve as retaliation against Sony’s release of The Interview.

The threat led Sony to cancel the film’s New York premiere, then led cinema chains to cancel screenings altogether.  Yesterday, Sony announced that it had “decided not to move forward with the planned December 25 theatrical release.”

The decision to pull the plug on the movie in response to anonymous threats was greeted with widespread criticism, from left and right.

Bill Maher tweeted: “#TheInterview Is that all it takes – an anonymous threat and the numbers 911 – to throw free expression under the bus? #PussyNation

And from Newt Gingrich: “No one should kid themselves. With the Sony collapse America has lost its first cyberwar. This is a very very dangerous precedent.”

This incident will have a lot of legal ramifications.  The FBI has been investigating the hack.  A class action lawsuit has been filed by four former Sony employees over the failure to implement appropriate security measures (more than 47,000 social security numbers, employment files, salaries, medical information and other data were stolen in the hack).  There could be defamation claims from the individuals discussed in e-mails meant to be confidential.  There will likely be disputes over how the hack happened, and over who is responsible and liable.   And more.

Perhaps most importantly, the Sony hack raises significant questions about the First Amendment – and its limits.

The First Amendment to the United States Constitution states

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

The concepts of freedom of speech and freedom of the press are two of the central principles of American society.  With few exceptions, we believe that we should be able to speak – and be heard – without fear of government restraint.

The protections the First Amendment affords speech and expressive conduct are not absolute, however.  The Supreme Court of the United States has long recognized that the government may regulate certain categories of expression consistent with the Constitution.  In Virginia v. Black, 538 U.S. 343 (2003), a case involving cross-burning, Justice O’Connor explained: “the First Amendment permits a State to ban “true threats,” which encompass those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals.  The speaker need not actually intend to carry out the threat.  Rather, a prohibition on true threats protects individuals from the fear of violence and the disruption that fear engenders, as well as from the possibility that the threatened violence will occur.”

Here, it is the hackers whose speech is illegal – they have issued true threats against United States citizens.  But it is Sony whose speech has been quelled. This raises the question of what to do when the product of our free expression, so highly valued by us, reaches and impacts countries that don’t share our values.  And how the First Amendment is borne out on the Internet, which (but for geoblocking) is like a country without borders.  In this case, online threats from outside the United States caused an American company to relinquish its First Amendment rights.  A safe but scary result.

And another free speech issue has emerged.  Is the media aiding and abetting the cyber criminals by reviewing and reporting on the leaked information?  Screenwriter and producer Aaron Sorkin wrote an op-ed in the New York Times and called the publication of information from “juicy” leaked emails “morally treasonous and spectacularly dishonorable.”  Should the freedom of press be limited when the information sought to be reported was the result of an illegal hack?  Or only when the hackers are, possibly, terrorists?

The publicity around the hack and the pulling of the film has created keen interest in The Interview, a relatively low-budget movie which might otherwise have been a dud.  Perhaps Sony can try to capitalize on this interest (many are calling for digital release).  Though Sony surely has its hands full, cleaning up after a vicious, expensive and damaging attack.