Sony Pictures’ Lesson on Free Speech

Freedom of speech and expression is one of the highest U.S. values, constitutionally protected from interference by our government. Indeed, it is the very first provision of our Bill of Rights. The Supreme Court today, under Chief Justice Roberts, stands firm on free speech, at least most of the time.

Just a couple of years ago the Court struck down a federal law making it illegal to claim war medals not actually earned. And federal law limiting corporate spending on elections was struck down in the highly controversial Citizens United case. There the Court chose the right of free speech over the statutory goal of protecting against the corrosive power of money in elections. In his new book, Uncertain Justice: The Roberts Court and the Constitution, Harvard professor Laurence Tribe credits the Roberts Court with a strong bias toward free speech.

But even the Roberts Court can be frightened into suppressing rights of free expression: Since 9-11, our government has implemented bans against the provision of “material support or resources” to any terrorist group. An American human rights group sued to confirm its right to assist humanitarian activities in Kurdistan and Tamil. The groups through which it funneled aid had bloody histories and were designated foreign terrorist organizations by the State Department. The government argued, and Justice Roberts agreed, that humanitarian aid could unintentionally free up funds to be used for terrorism. The Court upheld the law.

In November, Sony employs found this threatening message on their computer screens.

In November, Sony employs found this threatening message on their computer screens.

Just before Thanksgiving, large numbers of files, emails, and even five new motion pictures were stolen from Sony Pictures. In “the mother of all hacks,” Sony was invaded by electronic intruders later identified by the U.S. government as North Korean. Over the next several weeks, the hackers released packages of stolen files to the news media and others on the Internet. Ultimately they launched threats at Sony Pictures, movie houses and moviegoers if the motion picture The Interview was released or shown.

The Interview is a comedy built around an imagined assassination plot on the life of Kim Jong Un of North Korea, a grade B movie with a plot that involves a grade B dictator

Theaters began canceling the scheduled showing of The Interview, and a week before the Christmas release date, Sony withdrew its plans to distribute the film. The next day President Obama issued a statement denouncing North Korea and Kim Jong Un for hacking Sony Pictures, and also criticizing Sony Pictures for bowing to the suppression of the film.

At that point Sony Pictures’ president Kazuo Hirai took heart and announced that the movie would be released after all, utilizing somewhat unusual modalities — including the Internet — for a new feature film. Meanwhile our government commenced threatening and carrying out reprisals against North Korea and individuals with known ties to its electronic communications. And for a day or two, North Korea’s electronic communications were effectively cut off.

Sony is, of course, a Japanese corporation. Sony Pictures, which it acquired 25 years ago, is the old Columbia Pictures.

During wartime our movie industry has avoided government interference by setting up its own censors, happily suppressing favorable depictions of our enemies and presenting unfavorable depictions, including some that today would be considered racist. Columbia Pictures, as it was called then, surely followed suit. But not in peacetime.

If a moving picture were to depict an assassination attempt against our sitting president, it would probably be immune from government interference. Unless speech or expression creates a “clear and present danger” of causing serious harm, the Constitution protects against government censorship. A film shown in public theaters would surely not rise to that level of threat.

If it cared to justify its actions, North Korea might claim The Interview is a danger to Kim Jong Un by making light of the idea of assassinating him. North Korea might argue believably that this film has no “socially redeeming value,” drawing from rulings on efforts to suppress pornographic material, but that would not matter. Absent a “clear and present danger,” no American court is going to censor a Hollywood film on speculation that it might contribute to some future harm. The North Koreans’ only solution is to try to embargo the film, a difficult trick in this electronic age.

When someone tries to suppress expression here, we know where we and the Obama administration stand: Unless our security is at significant risk, free speech will be protected from onshore and offshore governmental censorship. We may even undertake drastic retaliatory measures in response to foreign meddling with our complicated concept of free speech.

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