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Washington Post

David Boies, representing Sony, has written a letter to various media outlets, demanding that they not publish or otherwise use the stolen Sony documents, and threatening lawsuits if the information in the documents is indeed “used or disseminated by [the receipients] in any manner.” Does Sony have a legal leg to stand on?

Probably not, at least as to most of the information that media outlets would want to publish. There are two relevant precedents, which aren’t squarely on point, but which are pretty close.

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.