While the event happened some time ago, the fallout continues.
Think Progress reports an enormous gender bias in Sony’s payments to male and female stars. This information may be old news in the sense that annual reports always put men at the top. Now women can use the revelations as evidence to support demands for more money. The examples demonstrate that pay has less to do with talent, or success, and more to do with testosterone level. Pathetic.
A more serious and far-reaching issue concerns Sony’s ability to stop news organizations and others from publishing the information released through hacks. Though probably protected, what’s the benefit of addresses and other personal information except to someone trying to pitch a film? The material that does have greater impact includes scripts, projects in development, and yes, opinions on President Obama’s viewing habits, which reinforced views that racism endures.
The Verdict has a thoughtful analysis of the issues. Sherry Colb points out rightly that the Pentagon Papers case and subsequent decisions have made it almost impossible to stop publication. The doctrine of “prior restraint” gives news organizations broad license to disseminate. The rule is: publish and deal with the fallout afterward. Of course there may be consequences, fines or jail time for revealing items that threaten our nationals security, for example. And of course the person taking the information can be prosecuted for theft. In this case Sony may also be able to claim monetary damages for the publication of copyrighted information.
Ms. Colb, though, thinks we should apply Fourth Amendment doctrine to rein in the First Amendment. The thinking goes that if law enforcement officers violate the protection against unlawful search and seizure, none of the information gathered as a result of that action can be used in a criminal prosecution. The “fruit of the poisonous tree” doctrine has been curtailed over the years, and Ms. Colb urges the same thinking apply to the prior restraint doctrine.
The big problem with this scenario, of course, is that the Fourth Amendment and the “fruit” doctrine apply to government action. They are meant to limit intrusion by the state, specifically the police, into the lives of private citizens.
The courts have never understood the First Amendment in this way. It applies broadly not only to the government but to any person or entity that attempts to curtail the rights of individuals, the press, the church, etc. (The standards may differ according to the identities of the parties.) But the rule is clear: “Congress shall make no law …” vs. “The right of the people … shall not be violated …”
The United States government did not steal Sony’s information, and even if it is proven beyond a reasonable doubt that North Korea did, U.S. Constitution doesn’t apply. Allowing prior restraint would send a message that it was OK to publish files that disclosed governmental lying during the Vietnam War, but Sony’s proprietary information is far more important. I’m pretty sure even this Supreme Court would say no.
So, the bottom line is: The hack impact will continue to ripple and may produce some positives, especially at the box office. Though I had no intention of watching The Interview before the hack, I plan to now – at least as much as I can stand.