Still from citizenfour
The makers of Citizenfour, the Oscar-nominated documentary film about Edward Snowden, have moved to dismiss a federal civil lawsuit that alleges they aided and abetted the “illegal and morally wrongful acts” of Snowden.
Filmmaker Laura Poitras, her producers and the entertainment companies behind Citizenfour were sued in December by Horace Edwards, the 89-year-old former secretary of the Kansas Department of Transportation, who seeks to have all of the film’s proceeds reallocated to the United States treasury.
Because Snowden, who is also named as a defendant, held a position of trust with the government as a contractor for the National Security Agency, the lawsuit asserts, and because he breached his “fiduciary duties” to the United States and the American people, neither he nor the filmmakers should be allowed to profit financially from the “purloined” information.
The same (highly questionable) legal claims could be directed against any news outlet that reports on any unauthorized leak of classified information, and generates revenue related to those stories or broadcasts. Although Edwards did not name Glenn Greenwald, The Guardian, or any other journalists or news outlets as defendants, according to the logic of his own complaint, he certainly could have.
Edwards’s suit is modeled after a 1980 Supreme Court case called Snepp v. United States, in which the government sued a former CIA agent who had written a book about his CIA activities without first getting approval from the CIA, in violation of a trust agreement Snepp had signed with the CIA. The Supreme Court ruled that Snepp had breached fiduciary duties to the United States by publishing the book without seeking approval and ordered that his profits be paid over to the government. (Coincidentally, Snepp appears in Rory Kennedy’s new documentary, Last Days in Vietnam, which is nominated for an Oscar this year, alongside Citizenfour).
The filmmakers, in their motion to dismiss, argue that Snepp presented a much different legal question. Here, unlike in Snepp, the alleged wrongdoer neither made a contract nor maintained any relationship of trust directly with the plaintiff. Because Snowden didn’t personally owe Edwards any special duties, the filmmakers contend that they cannot be held liable for aiding or abetting any alleged breach of those nonexistent duties.
Another salient distinction is that in Snepp, the United States itself brought the lawsuit; it wasn’t filed on behalf of the United States or the American public by a citizen who happened to buy a copy of Snepp’s book. Although Edwards asserts that he has standing to sue the Citizenfour filmmakers because he bought a ticket to see the documentary, which “outraged” him, the filmmakers counter that simply buying a ticket isn’t an economic injury of the type that would allow him to bring suit. By Edwards’s logic, anyone who purchased a newspaper or maintained an online subscription could theoretically sue a newspaper to disgorge its profits related to a story about a national security leak.
In their motion to dismiss, the filmmakers also argued that filmmakers have a constitutional right to publish truthful information on a matter of public interest, even if it was obtained through unauthorized means—a right that the Supreme Court recognized in Bartnicki v. Vopper in 2001.
Additionally, the filmmakers contend that forcing them to pay over all proceeds from the film would be an unconstitutional restraint on speech, just as a special tax on the cost of paper and ink would violate the First Amendment rights of newspapers, even if the remedy doesn’t directly prohibit speech. The filmmakers argue that forcing them to disgorge allegedly ill-gotten gains “would operate just as effectively as a use tax to check critical comments by the press on issues of public interest,” which the Supreme Court has held is unconstitutional.
The filmmakers also argue that the lawsuit cannot be maintained in the federal district court in Kansas, a state which has no connection to the filmmakers or the allegedly wrongful conduct.
It’s hard to imagine that the district court will ever reach the First Amendment issues raised by this case. Edwards could have a tough time convincing the court that he has standing to sue these defendants or that his claim — “constructive trust for breach of fiduciary duty” brought on behalf of the United States and the American people by an ordinary citizen — is a viable legal claim, particularly against filmmakers who played no role in obtaining the classified documents from the government.
It seems abundantly clear that the filmmakers and journalists who reported on the Snowden leaks engaged in constitutionally protected activity. Still, a contrary ruling here is scary to think about, perhaps as scary as Snowden’s leaks appear to be to Horace Edwards.