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The different First Amendment arguments about “The Interview”

December 24, 2014 by Scott Bomboy

 

News that the controversial comedy movie “The Interview” will be shown on Christmas Day is dredging up a rather complicated, and confused, argument about the Constitution’s First Amendment.

the-interview500As of Christmas Eve day, here is a quick recap of where we stand:

Sony Pictures is now allowing independent theaters to show the movie in more than 200 locations, after Sony and major theaters pulled the film initially. Sony’s computers were hacked by folks with alleged connections to North Korea. The hackers also made threats to harm people who attended movie screenings at the theater chain venues.

Then, President Barack Obama called out Sony and the national theater chains.

"We cannot have a society in which some dictator someplace can start imposing censorship here in the United States," Obama said last Friday.

Obama’s comments and a huge push back from the entertainment industry were partially driven by concerns that North Korea, or at least its proxy in the form of the hackers, could dictate what companies can publish, in the form of a film, or any other type of digital content.

They also drew a quick response from Sony Pictures CEO Michael Lynton, who said, "First, I was surprised by the remark. But, I think actually the president and I are coming from the same place. We are obviously both strong proponents of the First Amendment."

Sony also quickly pointed out that the major theater groups pulled the plug on the movie.

"The decision not to move forward with the December 25 theatrical release of The Interview was made as a result of the majority of the nation's theater owners choosing not to screen the film. This was their decision," Sony said in a statement.

But in a rare show of unity, many Hollywood liberal types and conservatives joined with the President in demanding, in various tones, that the “The Interview” should be shown to prove that nobody puts the First Amendment in the corner.

For example, legal legend Alan Dershowitz made his feelings clear in a CNN interview. “They have won the first victory. This is Pearl Harbor on the First Amendment. But then, we have to decide how to respond,” he told CNN’s Don Lemon.

Senator David Vitter (R-La.) and Representative Brad Sherman (D-Calif.) wanted the movie shown to the entire Congress as a reminder of what First Amendment values are really about. "Screening 'The Interview' will demonstrate the U.S. Congress’s support of the freedom of speech,” Sherman said in a letter to Sony.

But not everyone in the press and media were buying the same First Amendment argument.

Aaron Sorkin of “West Wing” fame said the media was abusing its obligations under the First Amendment and the Fourth Amendment in an editorial that ran in the New York Times.

Sorkin questioned the media’s decision to release the contents of e-mails stolen from Sony. He also said the media didn’t pay attention to the Fourth Amendment privacy part of the story – where Sony employees’ personal information was accessed by the hackers – and that Sony and the press were more concerned about the release of Jennifer Lawrence’s salary information.

“The minor insults that were revealed are such small potatoes compared to the fact that they were revealed. Not by the hackers, but by American journalists helping them,” Sorkin said.

“I understand that news outlets routinely use stolen information. That’s how we got the Pentagon Papers, to use an oft-used argument. But there is nothing in these documents remotely rising to the level of public interest of the information found in the Pentagon Papers,” Sorkin argued.

And then Sharon Waxman, the editor of The Wrap, tossed out another First Amendment argument in a CNN appearance.

"I also want to point out something else that does not seem to be part of the discussion which is, where are our responsibilities in our exercising of the First Amendment? And I mean both those of us in the media and those of us who are making movies and those of us who are writing about the community that makes movies which is to say what is the thought process behind making a movie in which we decide to depict the assassination of a living foreign leader,” Waxman said. "I think common sense has to prevail when we express our artistic freedoms.”

Clearly, there are First Amendment arguments tied to the Sony story. The amendment states, in part, that “Congress shall make no law … prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press.”

While President Obama can criticize Sony and its partners for holding back on the “The Interview”’s release date, the federal government can’t compel Sony to release the film: Sony has the First Amendment right to show the film whenever and wherever it wants.

As for media outlets publishing confidential information obtained by the hackers, the media has limited First Amendment protections to publish the emails, as long as they didn’t take part directly in the crime.

Eugene Volokh from UCLA explained the various legal angles recently for his blog published by the Washington Post, but the legal arguments are well-known by journalists and publishers who make regular decisions about such matters.

And then there is the argument made by Waxman that filmmakers had to know that a film, even a comedy, about killing North Korea’s leader would anger some people.

“We’re not allowed to cry ‘Fire!’ in a crowded theater. That is part of the responsibility of our First Amendment rights. And so, I think that common sense also has to prevail when we exercise our artistic freedoms and our First Amendment freedoms,” Waxman said in her CNN interview.

That argument references the famous Schenck decision by the Supreme Court written by Justice Oliver Wendell Holmes Jr.

“The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic. [...] The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent,” Holmes said.

Whether producers intended to create an international incident with North Korea, as they made the movie, would be a highly debatable topic.

For now, the movie’s debut on Christmas Day is seen by many as a victory for free speech.

Tim League, CEO of Alamo Drafthouse theaters, is showing “The Interview” at 16 locations nationwide. "It's become a symbol of freedom of expression," League told USA Today. "And about not backing down."

Scott Bomboy is the editor in chief of the National Constitution Center.

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