The Ongoing Vitality of Free Speech in the United States

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Burt Likko

Pseudonymous Portlander. Homebrewer. Atheist. Recovering Republican. Recovering Catholic. Recovering divorcé. Editor-in-Chief Emeritus of Ordinary Times. Relapsed Lawyer, admitted to practice law (under his real name) in California and Oregon. On Twitter, to his frequent regret, at @burtlikko. House Likko's Words: Scite Verum. Colite Iusticia. Vivere Con Gaudium.

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131 Responses

  1. Avatar Patrick says:

    I guess the City of South Pittsburg was feeling like their legal department was bored and needed a lawsuit to defend or something?Report

  2. Avatar greginak says:

    There is something for everybodies ideologies here. We are on every slippery slope to every bad place possible.Report

  3. Avatar Jaybird says:

    I hate the fact that I am now going to make it a point to see a freakin’ James Franco movie.Report

  4. Item three: I overhead a couple college students talking the other day about how free speech would be made more free if we prevented people from saying things that were hurtful. Because then more people would speak up.Report

    • Sadly, this is nothing new. Close to a generation ago, I began my legal career fighting the notion that the need to avoid “chilling” a free speech environment overrode the speech rights of people who say unpopular things.Report

      • Everything old is new again. I went to college just after this was en vogue. Like, when I was in high school, there were a lot of conversations about the obvious exceptions to free speech, but by the time I got to college, there was a lot less of it (except, of course, at the college itself, but even there I suspect there was less of it than there had been a few years prior.).Report

    • Avatar Glyph in reply to Will Truman says:

      To be fair, they WERE college students, and so probably stoned. Were they also advocating Universal Brownie Distribution?Report

    • Avatar Saul Degraw in reply to Will Truman says:

      To be fair, those college students have the least chance of changing anything.Report

    • Avatar KatherineMW in reply to Will Truman says:

      Well – yes and no, when it comes to specific venues.

      For example, Ordinary Times has in the past removed at least one writer and I think banned, warned, or penalized people for sexist and racist statements and personal attacks. A website that minimizes the amount of that sort of comments is more likely to have female and minority people participate in discussions, because at some level of abuse, participating in discussions no longer seems worth the aggravation.

      And the same is true for other Internet discussion fora. The type of statements that are permitted and condoned affect the kind of people who participate, as well as affecting the quality of discussion.

      (This is quite a different matter from the issue of government restrictions on free speech, which I generally oppose.)Report

      • Avatar Will H. in reply to KatherineMW says:

        I suspect self-censorship is a greater impediment.Report

      • Avatar Kimmi in reply to KatherineMW says:

        Kat,
        I think you might be surprised at how downright decent /b/ can be sometimes…
        (despite making a habit of being banned from First World countries for the use of their free speech)Report

      • Avatar Jim Heffman in reply to KatherineMW says:

        “A website that minimizes the amount of that sort of comments is more likely to have female and minority people participate in discussions, because at some level of abuse, participating in discussions no longer seems worth the aggravation.”

        Remember when we trolled BlaiseP off the site? Man, that was fun. And I’m sure that just got us so many more female and minority posters.Report

      • Avatar zic in reply to KatherineMW says:

        @will-h there are many, many websites that I read regularly but do not comment at because of the lack of moderation; Slate, Salon, Reason among them.

        There is a real difference here, I think, between a typical female and typical male poster; and it is pretty easy to see in the rape discussion; particularly the notion of ‘it’s still rape if the person being hit upon gives in.’ For men, from what I’ve read (on the above websites where I will not comment), that ‘giving in’ is consent. For women, it’s often self-defense. Likewise, men seem to be happy to batter away in comments until someone gives in. Women? They often simply self-censor, as you put it, leaving the conversation instead of continuing to batter away. And of course, these are stereotypes; so not necessarily reflective of any given man or woman, but statistical men and women.

        But the real point here is that the self-preservation of giving in or self-censoring is just as legitimate a strategy as continuing to fight. If we are interested in equality; it’s also important to recognize that legitimate strategy, and not simply cede the floor to the folks willing to batter away the longest; i.e., those with the biggest mouths. Yet in on-line discussions, this is precisely what happens without moderation. To really see this in play, look at the problems with wikipedia editors. It does not make for better things; it’s ultimately self-destructive.Report

      • Avatar Jim Heffman in reply to KatherineMW says:

        Amusing. Women are the new Silent Majority.Report

      • Avatar Patrick in reply to KatherineMW says:

        We didn’t troll Blaise off the site. He left on his own accord.

        I wouldn’t mind seeing him in the comment section again.Report

      • Avatar zic in reply to KatherineMW says:

        @patrick I miss him, too. There have been many a time I wanted to ask him a question here because I knew he’d have something useful to say in response; I simply learned an incredible amount of stuff from him despite the fact that he could be an ass, too.

        He used to describe weak men as pussies; a common enough thing. I asked him to stop because I felt it was offensive, he asked why, so I explained that it automatically cast women as weaker, since that was what weak men are — feminine, and he stopped, though there were a few slips now and then, it’s often a knee-jerk reaction. He stopped, and he apologized to me for at least one of those slips, perhaps more.

        There are many people here who I disagree with profoundly, a few I actively dislike, but who’s thoughts are valuable. I think the biggest community offense is people who don’t try to understand opposing views often enough, they’re just in it for the gotcha.

        That’s the thing that seems banning-worthy.Report

      • Avatar Will H. in reply to KatherineMW says:

        @zic
        This site has always been self-moderated. Only on rare occasion would administrators become involved.
        I have been on both ends of that.
        I believe the last time someone else stepped in to say I was out of line was Glyph, in a comment where I got snippy with Kazzy. I felt bad about it anyway, because I came to agree with him later in the thread (Kazzy is incredibly cool roughly 1/3 of the time), and had replied before reading the whole thread.
        Quite some time before that, Michael Drew and I were unable to come to terms and unwilling to walk away. At that time, Erik stepped in.
        And I have stepped in to other arguments that were really none of my business, but seemed to be going nowhere and getting more hostile. Fortunately, my acts were well-taken.

        I think everybody here has had similar experiences.

        But I wish to draw the distinction between a site which is not moderated and one in which the commenters act as moderators. There is a big difference.

        Back in the old days, when 63 was an incredible amount of comments for a post, things were different. In a post with that many comments, there would be roughly five distinct sub-threads, each exploring some manner of thing in-depth, whether or not it related to the OP. People were free to wander. Frankly, I believe that is when certain commenters (looking at you, Jaybird) are at their best.
        Things are a bit different with so many more comments and so many more commenters.
        I’m not complaining that more posts get 300+ comments than they used to; only noting that the atmosphere has shifted in that.

        Also, I miss BlaiseP too. I believe many of the exchanges between he and myself were quite exemplary of the premise of this site: him the ex-conservative now a liberal, and I the ex-liberal now a conservative. We seemed to connect on that basis, and the exchanges were always genteel, and typical instructive.
        I miss TVD, for that matter. His view is not a popular one here, but I believe that is part of the value he brought to the table. I understand that he suffered an indiscretion, and I am unsure of the details. Yet, over the past week, I have been involved with an inquiry (of which I am under an obligation to remain silent) regarding a lapse in the professional judgment of another. This will likely result in a suspension of at least one year, and probably two; due to the nature of the indiscretion. Although I was one of the parties wronged, I anticipate intervening on his behalf; that the suspension should be no more than 60 days; as I believe any action should be corrective, rather than punitive, in nature.
        And I wonder if such a suspension, rather than a termination, would have been a more prudent course. Not mine to dispense, but only to wonder.

        And, for the record, I’ve always liked you too, zic, especially so. Our points of agreement are meaningful, but it is in those areas where we disagree that you come to life; a real, breathing person on the other end of these invisible airwaves. I like that.Report

      • Avatar Jaybird in reply to KatherineMW says:

        Dude, it’s good to have you back.Report

      • Avatar Jaybird in reply to KatherineMW says:

        I see that this has been covered.Report

      • Avatar Kazzy in reply to KatherineMW says:

        @will-h

        “Kazzy is incredibly cool roughly 1/3 of the time…”

        1/3? 1/3???

        That’s like, twice what my wife would give me!Report

      • Avatar Kazzy in reply to KatherineMW says:

        “And, for the record, I’ve always liked you too, zic, especially so. Our points of agreement are meaningful, but it is in those areas where we disagree that you come to life; a real, breathing person on the other end of these invisible airwaves. I like that.”

        Does that mean @zic passes the Turing Test?Report

      • Avatar Will H. in reply to KatherineMW says:

        Thanks, dudes.

        I feel like Kotter.Report

  5. Anyway, I was actually in the process of writing about The Interview. Since we already have a post on it, I’ll just put what I was going to write here:

    After a raft of movie theaters declined to show The Interview, amid threats of violence, Sony has announced that they are pulling the release of the film.

    Presumably the film will be released once an investigation determines that no violence is forthcoming.

    This has led to a lot of criticism for, essentially, giving in to terrorism. A lot of that criticism is directed at Sony, though I’m not sure how much of it should be. If theaters don’t want to show it, then they’re not going to get the premier that they want. The theaters are themselves the ones who caved. Of course, they themselves would be opening themselves up to enormous lawsuits if they did show the picture and violence did occur. So we can perhaps blame the lawyers, or alternately insurance companies that told the theaters not to do it.

    It’s easy to say “Don’t give in to terrorism” when our livelihoods aren’t affected.

    But dammit. This is the most irritated I’ve been by a delayed screening since they pushed V for Vendetta away from the pre-ordained November 5th release date. Though I had no particular intention of watching this film upon its release.

    And ultimately, it’ll wait I suppose.

    As an aside, it’s interesting that this is the movie that is causing issues. It also may put Hollywood in a bit of a pickle. Due to overseas sales, they’re not as eager to cast China as the villain as they used to be. Which is why when they were remaking Red Dawn, they chose North Korea as the invading force instead of the more likely culprit China. Or, for that matter, Russia itself (whom I’ve read actually kind of relish being the bad guys). Then again, maybe they’d invade on the idea that we’re the type of people to cancel a movie premier on the basis of vague threats.Report

  6. Avatar James Hanley says:

    I haven’t followed the Sony case very closely, but given the sensitivity of the DPRK and that they’ve previously engaged in cyber-attacks against the US, is the betting money on this being their action? Or is there evidence pointing elsewhere?Report

    • Avatar Stillwater in reply to James Hanley says:

      Well, the premise of the movie apparently plays fast and loose, in a jokey, Western, US-pop culture sorta way, with the concept of assassinating Kim Jong Un, so …Report

    • Avatar Morat20 in reply to James Hanley says:

      Eh, maybe?

      For all the talk, it looks like it was a pretty stock malware attack. Sony, despite several high profile attacks, apparently just doesn’t care very much. They haven’t bothered to routinely scan and clean known malware off their Windows boxes.

      Could be anyone, really. The Interview thing could be anything from the reason for the attack, to some BS to through off people searching, to some random group using the attack to claim credit and ride their own hobbyhorse.

      In the end, it wasn’t a terribly sophisticated attack. There were some early reports that it was like stuxnet — specifically developed, millions of dollars, years in letting it settle in — but nope. Known malware, pretty stock and boring stuff, used as a vector to get in — and another piece used to clean drives.

      Even that might be out of the North Korean’s grasp, I dunno.Report

      • Avatar Mad Rocket Scientist in reply to Morat20 says:

        Ah, that age old problem of keeping the machines running smoothly, while keeping the employees who honestly, really, should not be allowed anywhere near a PC that is not locked down as much as possible & scanned/cleaned/re-imaged nightly, happy & productive.Report

  7. Avatar Kolohe says:

    The postponed release is not Sony’s fault per se, at least not its proximate fault. At least 5 of the major theater chains have pulled the film from their establishments (though after Sony said that was ok to do so and wouldn’t be a violation of their distribution agreements).

    If the main exhibitors aren’t going to show the movie, it’s a trivially easy business decision to put off the release.Report

  8. Avatar Burt Likko says:

    The hackers did do something to Sony that was really bad: they got at all of the personnel and HR files. But then again, it’s not like Sony had previously suffered a crippling hack and therefore had been put on notice that it needed to beef up its electronic security. You know, in the past six months or so.Report

    • Avatar Patrick in reply to Burt Likko says:

      Information security is hard. It’s also annoying.

      Unless you give the infosec folks real teeth, the sales and executive and “I just wanna get my work done” folks will post Modoc, Preventer of Information Services cartoons on their cubicles and go their merry way.Report

      • Avatar Kimmi in reply to Patrick says:

        Yes, yes it is. On the other hand, AMD gives bounties if you catch bugs! (So does VMware)

        Still doesn’t make up for having melted half the OperatingSystem (it got better, mostly).Report

    • Avatar Mad Rocket Scientist in reply to Burt Likko says:

      Part me is angered at how readily the news media is blasting all the highlights of the stolen data all over the place, while also talking about how bad & illegal it was that this data was hacked & released,

      But then I think about how it’s good that they do it when it’s data from a whistleblower about a secret government program/cover-up.

      Then I think about how often said whistleblowers are pilloried by the media later on, or forgotten about when the government goes after them with the heavy artillery, and I get all mad again.Report

  9. Avatar Kolohe says:

    The sine qua non of arbitrage opportunities today would be a derivative that packaged a call option on Cuban cigars and a put option on The Interview tickets, backed by a carry trade in the Russian Ruble.Report

  10. Avatar Kolohe says:

    On item 1: would you all tolerate a regular contributor that made frequent social media posts that were negative on Our Tod and on how he runs this site? Or would you tell that person “maybe you need to find another forum to contribute to?”Report

    • Avatar Will Truman in reply to Kolohe says:

      Seems to me that’s a decision between us and the commenters, not involving their employer. (Barrett Brown notwithstanding.)Report

    • Avatar Burt Likko in reply to Kolohe says:

      I don’t think Our Tod would object to criticism at all. If it crossed the line into actual abuse and particularly into an ongoing campaign of abuse, we might ban the commenter.

      But we aren’t the government.Report

    • Avatar James Hanley in reply to Kolohe says:

      You’re obviously not Facebook friends with any of the contributors.Report

    • Avatar Stillwater in reply to Kolohe says:

      You all tolerate me.

      Hey, wait a minute. What are you trying to say here?Report

    • Avatar Saul Degraw in reply to Kolohe says:

      @kolohe

      Except that there is a line of legal precedent that affords 1st Amendment protections to government workers who criticize their employers (though it has been culled back recently). Government employees are citizens as well and they need to have their rights as citizens protected with extra scrutiny. Government employees shouldn’t have to give up their rights as citizens.Report

      • Avatar Kolohe in reply to Saul Degraw says:

        There is a line of precedent that supports whistleblowers, sure. But isn’t there also (at the federal level) the Hatch Act?

        For the most part, I think the fact that it’s ‘government’ is a red herring in the Pittsburg (what the h?) case. If I work at McD’s as a fry cook and keep on writing that my manager is grade A moron that is destroying Ray Kroc’s legacy, I probably won’t be kept around for too long.

        But to go back to the government context – what if I was a mid-level manager at the Department of State, and wrote a piece critical of the way John Kerry is running things right now? Would there be a difference if I were instead a parallel position in the Department of Defense and wrote the same piece? i.e. does it matter whether or not Kerry was my actually big boss? And would there be a difference if I were a GS/SES vs a political appointee? (that is, a philosophical difference – I’m almost certain there’s a legal difference between civil service protections and ‘pleasure of the President’)

        The one part of the Pittsburg rules as summarized by Mr. Likko that I do take issue with is ‘elected officials’ being under this restriction. A person that is directly elected has a different responsibility and is answerable to a different authority than people that are employed by the bureaucracy and government contract force. And it’s the very reason why the dudes that wrote the US Constitution deliberately wrote in immunity for elected officials, so people wouldn’t play lawfare games to silence political opponents.Report

      • Avatar Kimmi in reply to Saul Degraw says:

        K,
        every Pittsburg in the country spells it like that, except the one I live in. (We protested to get the H back, actually) http://www.carnegielibrary.org/exhibit/hname.htmlReport

  11. Avatar Saul Degraw says:

    I think there is a difference between one and two. One is an actual government entity being morons and violating the First Amendment potentially. The second involves SONY caving like idiots at what is probably not North Korea and more likely:

    1. A disgruntled bunch of IT guys from SONY; or

    2. A bunch of tweens and teenagers from the Palo Alto Computer Club doing this for the lulz; or

    3. Some Anonymous/4chan types.

    I don’t think NK has the capacity to pull off the SONY hack. They seem quite incompetent in everything they do except being cartoon villains:

    http://www.nytimes.com/2014/12/14/books/review/suki-kims-without-you-there-is-no-us.html?_r=0

    I don’t know how they can pull off the attack. If NK did, they are doing the greatest ruse in all of history.Report

    • Avatar KatherineMW in reply to Saul Degraw says:

      …you just said, implicitly, that the government of North Korea is less competent than 4chan.

      I’m now imagining what a country run by 4chan would be like, and it is terrifying.Report

      • Avatar LeeEsq in reply to KatherineMW says:

        It terms of technical skills, all evidence shows that North Korea is much less competent than 4chan. Its a Fascist pseudo-Marxist quasi-Monarchy or what Orwell’s Oceania would be like if it was run by people form the Confederacy of Dunces.

        I am really interested into know who is against the Interview and why they are against it. Its just a really dumb movie. I didn’t have an interest to see it but now I do.Report

      • Avatar Saul Degraw in reply to KatherineMW says:

        “Orwell’s Oceania would be like if it was run by people form the Confederacy of Dunces.”

        Well said.Report

      • Avatar Alan Scott in reply to KatherineMW says:

        @leeesq , how much technical skill do you think 4chan has?

        My understanding is that it’s basically three bored people who mostly know what they’re doing and another thousand who are nothing more than butts in seats. As long as North Korea can find three people who mostly know what they’re doing, they’ve got millions of butts, and at least a thousand seats.Report

      • Avatar Kimmi in reply to KatherineMW says:

        Alan,
        if the GOP can’t find 3 competent people to fix a fucking Presidential election, what makes you think North Korea can?Report

      • Avatar Kimmi in reply to KatherineMW says:

        Kat,
        Nah, it ain’t that bad….
        (this probably falls under the category “things you shouldn’t believe, because Kimmi is saying them”)Report

    • Avatar Saul Degraw in reply to Will Truman says:

      I think the issue here is phrasing expressing your opposition to same-sex marriage could be unlawful harassment depending on how and why it is done. I can see why banning it from a philosophy class discussion is bad but college students can also be jerks (and often are!) and I can see that students would bring it up just to make their LGBT classmates uncomfortable and feel bullied.

      The First Amendment is not absolute. People also aren’t allowed to send e-mails to female colleagues about how they want to perform oral sex on them or how said female colleague should be under a table performing oral sex while a meeting is going on.Report

    • It’s not a first amendment free speech issue, but this blanket prohibition in a philosophy class is questionable all the same. It would be less questionable in a math class. But it seems to me gay rights and philosophy are not as unrelated.Report

      • Avatar Stillwater in reply to Will Truman says:

        Will,

        I think I’ve mentioned this before, but once upon a time I taught philosophy classes and there is no more decisive issue within the philosophical community than that prohibiting SSM is immoral (or wrong, unjustified, whatever). The only thing that came close was the moral considerability of animals, in my view, followed by the immorality of capital punishment.

        Since I stopped being part of that community I wouldn’t be surprised if legalization of weed ranks right up there with the others, but since it’s a subset of a MAJOR issue I wouldn’t also be surprised if it didn’t get the attention it deserves.Report

      • Avatar Kimmi in reply to Will Truman says:

        Stillwater,
        here I thought all the philosophy departments were on weed…
        (Must just be the good ones).Report

    • Avatar Dand in reply to Will Truman says:

      This seems strange considering Marquette is Catholic.Report

  12. Avatar zic says:

    So as I understand it, corporations can place contractual obligations on employees including limiting what they can say in public. Non-disclosure clauses are common, for instance. Can there be any legitimate argument made that this is a similar thing, or would the town, to actually limit employee’s speech, have to have it in their contracts? Or do government employers not have a right that corporations have with contract law?

    I’m also glad that the free speech to limit free speech, as in, “I’d like to limit hatful speech,” is protected speech, for what it’s worth. Just because you can say something hateful doesn’t mean other’s don’t have the right to say they wish you didn’t.

    But mostly, bah humbug. If there’s such a problem with employees complaining about any town/city’s government on social media, there are bigger fish to fry.Report

    • Avatar Kazzy in reply to zic says:

      @zic

      I’d venture to guess that the government doing this — even via voluntarily signed contracts — amounts to a form of government infringement on free speech. We have a Constitutional guarantee that the government can’t tell us what we can and can’t say*. That would seem to hold even if the government were our employee.**

      * Except all the times that the the government can tell us what we can and can’t say.
      ** And I presume if you walked into your government office and started calling everyone an asshole, you’d be fire. So I’m not sure where that leaves us. I guess the question is, does being fired or otherwise disciplined at work constitute infringement on speech in a lawful manner of speaking?Report

      • Avatar zic in reply to Kazzy says:

        Having spent a good five years trying to figure out if stuff was classified before my deadlines, I guess I think the government was/is pretty comfortable telling us we can’t say stuff if they can do so by stamping it ‘classified,’ or ‘state secret.’ (That’s way to easy to do; and stuff that’s not classified in one place may well be in another; this is not easy to sort out.)

        But mostly, I wanted to point out that non-government employers limit free speech regularly; sometimes legitimately so (trade secrets, etc.) and sometimes not (no complaining about the boss on social media.)Report

    • Avatar Will H. in reply to zic says:

      Good point.

      It seems like (depending on the type of organization the city was) prohibitions on matters only available to the employee by means of their employment could be justified, while criticisms involving matters of general public knowledge would be strictly off-limits.Report

  13. Avatar Stillwater says:

    The first thing everyone wants to say is ‘I can’t post anything on Facebook … Well, you can. Just not [anything] that sheds a negative light on any person, entity, board or things of that nature. You can go ahead and post all you want.

    I don’t know how to differentiate this policy from the one advocated by the Cleveland and NYC cops in response to the protests. In short: order above all! Or at least the perception of order.

    I’d say propaganda is the last refuge of the scoundrel but I don’t subscribe to simplistic reductions. Rather, I tend to think it’s almost (almost!) decisive evidence of scoundrelity.Report

  14. Avatar Kazzy says:

    Heh… I randomly stumbled upon a video of Cliven Bundy stumping for a local politician wherein he calls out Eric Holder, the “PC Police”, and a number of other people/entities for the shame he brought upon himself. At one point he says, “You should be able to express yourself freely without people calling you names,” without the slightest hint of irony.Report

  15. So apparently Sony doesn’t plan to release to movie ever at all. Can’t blame this on the theaters. Can scarcely blame it on North Korea. I’m just thinking that this may be an unusually terrible movie and Sony is breathing a sigh of relief.Report

  16. Avatar Saul Degraw says:

    According to this article, North Korea payed outside hackers for the SONY attack:

    http://www.nbcnews.com/news/world/north-korea-behind-sony-hack-u-s-officials-n270451Report

    • Avatar Will H. in reply to Saul Degraw says:

      If there is any veracity to this story, then certainly someone should inform the No. Korean authorities about boy bands.Report

    • Avatar Stillwater in reply to Saul Degraw says:

      I believe the account (“that NBC has confirmed that US officials have determined…” blah blahblah) but I tend to think that at this point in time, given all the recent stuff about torture and whatnot, not to mention the runup to the Iraq war (Judith Miller???), that we should refrain from definitive conclusions based solely on what “US officials” are telling media outlets to tell us.

      If it doesn’t show up on CNET, I don’t believe it.Report

  17. Avatar LeeEsq says:

    In response to the North Korean threat, another movie about North Korea got throated just before it started:

    http://www.slate.com/blogs/the_slatest/2014/12/17/pyongyang_movie_starring_steve_carell_in_north_korea_scrapped.html

    Fred Kaplan believes that cyber attacks and threats like the one suffered by Sony because of the Interview will become much more common. He tends to be right about these things.

    http://www.slate.com/articles/news_and_politics/war_stories/2014/12/sony_pictures_attack_is_a_new_era_in_cyber_warfare_is_it_an_attack_on_the.htmlReport

  18. Avatar Tod Kelly says:

    Out of curiosity: Would the people here who are upset about the above mentioned govt. policies for their employees and contractors feel the same way if it were a private employer?

    If so, then the legal differences aside what is the moral objection to one being able to do so and not the other?Report

  19. Avatar Tod Kelly says:

    Also, I was going to do a post on this today, but I’ll just do it here and defend Sony (up to a point).

    I think we have a tendency to think of issues like what Sony was dealing with as debating points for a salon or coffee house discussion about Big Issues.

    But unlike us, Sony isn’t tasked with furthering [fill in your cause here]. It’s just running a business. And the decision they made was a business decision, and I’m not entirely convinced that it was a bad one.

    The counter example I hear everyone making on the radio is the shootings in Aurora for Batman. That movie didn’t cave, why should Sony? But there’s a pretty damn big difference, which is that the shooter didn’t let people know what he’d be doing in advance.

    Whoever posted the threat to bomb 1,800 theaters almost assuredly lacks the capabilities to do so. But it just as assuredly has the capabilities to blow up one. And even if it doesn’t, blowing up theaters that show The Interview is now something out there for any whack job or political extremist to latch onto.

    And there’s this: a universal clause in all insurance contracts is the war and terrorism exclusion. Meaning that if Sony were to have shown the movie and a single theatre was bombed, killing — let’s just say — 150 people, that’s a minimum of 150 catastrophic lawsuits that Sony has little chance of winning with absolutely zero liability insurance coverage to back the losses.

    And if that wouldn’t be enough to tank it, I put it to you that should a bombing have occurred all of the pundits who are now railing against Sony for caving to the terrorist would be calling for their head for recklessly seeking to make a buck while putting innocent people at risk.

    In other words, Sony as a business can probably survive the low-news day backlash of people wanting them to stand firm against terrorsists, but they probably can’t survive a single terrorist occurrence if they had been publicly warned.

    I suspect that they ultimately decided it wasn’t worth rolling those dice, and I’m not sure I blame them.Report

    • Avatar Kolohe in reply to Tod Kelly says:

      And there’s this: a universal clause in all insurance contracts is the war and terrorism exclusion. Meaning that if Sony were to have shown the movie and a single theatre was bombed, killing — let’s just say — 150 people, that’s a minimum of 150 catastrophic lawsuits that Sony has little chance of winning with absolutely zero liability insurance coverage to back the losses.

      My understanding from the spate of ‘omg Congress may cancel the Superb Owl’ stories last week is that the Feds serve as a backstop for these claims (until Jan 1 or whenever it is the current legislation sunsets). Would it not work for that?Report

      • Avatar Tod Kelly in reply to Kolohe says:

        It took me a bit to figure out what you meant by superb owl….

        TRIA doesn’t cover everything. It was generally made to cover both government mandated insurances (workers comp, for example) and very specific named industries — one of which are all of the major league sports leagues.

        I suppose that it’s possible that it covers movie studios, but I would be a little surprised. (My understanding is that it doesn’t cover publishers, but those might have been seen as different enough to name movie studios.)Report

    • More broadly, Sony is the prospective speaker here. We can worry about Free Speech when Speaker is chilled by something in the environment or other. But it’s not clear to me why Speaker should be criticized for actions detrimental to Free Speech when Speaker simply decides not to speak – especially when it does so in response to base, vile threats. One of the things Free Speech means is that it’s Speaker’s choice to speak in the face of threats (or in the face of anything) or not.

      If we want to criticize someone for actions detrimental to Free Speech (other than the obvious criticism of the Threatener), we should criticize those among us who we believe are/should be responsible for convincingly enough neutering Threats to Free Speech that they fail at intimidating Speakers out of speaking. In this case, I’m not sure there were means for that defense, but I will say that if you’re inclined to be skeptical/critical of the mission of government entities like U.S. Cyber Command and other similar entities in the government, you’re probably inclined to be skeptical/critical of some of the primary entities whose job, in part, that would be.

      We can probably criticize Sony for not better erecting defenses for itself, but, I mean, come one, this is the very edge of modern warfare that our most sophisticated people who get Hoovered up into the government brain trust struggle to stay ahead of. Right now everyone’s vulnerable.Report

      • Avatar Michael Drew in reply to Michael Drew says:

        Chait.

        I don’t agree that what the government must do is backstop liability (it’s fine of they do, but it doesn’t seem like the ideal or obvious primary response to me), nor (more definitely) should they push the film to be seen. The latter seems to take a choice that is Sony’s out of its hands and necessarily escalates the situation viz. North Korea in a way that is not necessary and almost certainly not wise at this time.

        But Chait is right that fundamentally this is a question of national defense that the government must respond to. The government should be looking for every non-liberty-destroying way to secure the the media and cyber spaces that our culture depends on having as spaces of broadly free expression as laid out in the animating ideals of our Constitution, and to neuter threats to the freedom of those spaces. Firms and individuals of course should take any step they think is prudent to secure themselves, but emphatically this is a kind of challenge that the government must respond to with utmost seriousness.Report

    • Avatar Will Truman in reply to Tod Kelly says:

      This gets you to “We won’t release it to theaters” but not to “or anywhere else.”Report

      • “But unlike us, Sony isn’t tasked with furthering [fill in your cause here]. It’s just running a business. And the decision they made was a business decision, and I’m not entirely convinced that it was a bad one” gets you to their interest in trying to not be hacked more deeply than they have been, which is absolutely legitimate and nothing we can gainsay. We have no free speech claim on gaining access to their movie – obviously not legally, but not ethically either. They can speak or not speak as fits their interests.Report

      • …I suppose you could say they ought to act philanthropically to give us access to their movie in the way I ask Uber to at philanthropically to give people access to transit out of Danger Zones.

        I think the balance of public benefits versus private risks here is wildly less compelling than in the case of Uber in emergency zones. But it’s certainly possible that you could reasonably think B (Sony) is a situation where we have a reasonable expectation of philanthropy while I can reasonably not, while I could reasonably think A (Uber) is a situation where we have a reasonable expectation of philanthropy, while you could reasonably not.Report

      • I was referring specifically to the insurance liability angle (of something happening at a theater).Report

    • Avatar LeeEsq in reply to Tod Kelly says:

      SONY is acting perfectly acceptable as a business but it still represents a worrisome trend in the realm of free speech. It suggests a future where various people can freeze or at least chill the free speech rights of others by engaging in criminal activities like threats or hacking in order to cause millions of dollars in damages. If North Korea is behind this as the Federal government thinks than others are going to soon learn to follow North Korea by example. Do we really want to live in a world where tyrannies like North Korea or Russia or terrorists groups like Boko Haram can exert control over what movies get released?Report

      • Avatar Kimmi in reply to LeeEsq says:

        Lee,
        ooh, yee of little faith and small imagination.Report

      • Avatar Michael Drew in reply to LeeEsq says:

        I think that’s reason to root for Speakers to be brave but no basis for criticizing them for being reasonable when the threats are… scary.

        What it is is reason to give thought to how the U.S. government can best fight to secure our Free Speech from preemptive threats against our citizens’ exercise of it inside our own country. That’s one of its basic jobs, after all.Report

      • Avatar LeeEsq in reply to LeeEsq says:

        M. Drew, thats the difficult question to answer. The Constitution envisioned that the only threat to free speech in the United States would be the government of the United States or the states therein. It didn’t imagine a quasi-monarch hiring people to quash the speech of United States citizens within the United States. We obviously can’t wage war against North Korea for this or other groups that decide to embrace a similar strategy.Report

      • Avatar Michael Drew in reply to LeeEsq says:

        I mean, they imagined that the nation (indeed the Constitution and the rights it protects) would face threats from without, and in that Constitution made an officer who is the commander-in-chief of a military, and directed that officer, and every member of that military, to take an oath pledging to defend that Constitution against all threats, foreign and domestic – with military force, if necessary.

        So yes, I think they kind of vaguely envisioned such things. They made provisions for protections against them, in any case.Report

      • Avatar Kolohe in reply to LeeEsq says:

        The rights were a dealer option, like undercoating.Report

    • Avatar Stillwater in reply to Tod Kelly says:

      Excellent comment Tod. Pretty much exactly where I’m at. Especially this:

      But unlike us, Sony isn’t tasked with furthering [fill in your cause here]. It’s just running a business.Report

  20. Avatar Stillwater says:

    I’ll throw this down here since this post is sorta political:

    Nebraska and Oklahoma sue Colorado over marijuana legalization.

    Whatever happened to states’ rights?Report

  21. Avatar DensityDuck says:

    Several theaters in Texas declared that, instead of “The Interview”, they would show “Team America: World Police”. Paramount responded by pulling their authorization to show it.Report