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On Tuesday, Citizenfour director Laura Poitras, Praxis Films, The Weinstein Co. and others told a federal judge in Kansas why a lawsuit brought on behalf of the American people over Edward Snowden disclosures in the Oscar-nominated documentary should be dismissed.
Horace Edwards, a retired naval officer, filed the complaint in December after purchasing a ticket and finding the film to be an outrage. Specifically, he points to Snowden’s agreement with the United States to maintain confidentiality and he aims to hold the producers and distributors responsible for “obligations owed to the American people” and “misuse [of] purloined information disclosed to foreign enemies.”
As expected, the defendants are challenging both the jurisdiction of Kansas as well as the plaintiff’s standing. They say Edwards hasn’t pled an “economic injury” because he bought a ticket and “received the benefit of his bargain when he watched the documentary.” They add that Edwards fails to allege any breach of duty owed to him personally. There was no contract between the parties, unlike past cases where the government was in battle over security secrets.
The plaintiff has tried to add the United States of America as an involuntary plaintiff and has likened the lawsuit to a derivative action on behalf of other citizens. The defendants say there’s no statute that gives him the authority to do this. Others have likened Edwards’ lawsuit to a qui tam action where a private plaintiff sues as a partial assignee of the country. The Citizenfour defendants agree this is the better analogy, but say that qui tam actions are “strictly a creature of statute,” and Edwards hasn’t identified one to sue in the matter he’s doing. His attempt to drag the U.S. into the fight is said to fall short of requirements.
More interestingly, and it’s not clear that a judge will get past the jurisdiction and standing issues to even reach this issue, the Citizenfour defendants cite Bartnicki v. Vopper, the Supreme Court opinion that was much-discussed recently when reporters were attempting to figure out whether they could publish leaks from the Sony hack. Bartnicki dealt with a radio commentator who broadcast intercepted cell phone conversations. The defendants in that case got off because they played no part in the actual interception, only broadcasting what was given to them.
“Because Mr. Edwards does not allege there was anything unlawful about Ms. Poitras’s receipt of classified documents from Mr. Snowden, publication of that information may not be punished without proof of a compelling government interest,” states the memorandum in support of dismissal. “As Bartnicki makes clear, however, when a criminal or civil remedy exists to deter an initial breach of confidentiality, the limited value of additional deterrence achieved by punishing publication is not compelling.”
Of course, the Citizenfour defendants also turn to the First Amendment in their attempt to doom Edwards’ suit, saying that mere invocation of national security interests can’t be the justification for limiting free speech. And the defendants, represented by Bernard Rhodes at Lathrop & Gage, also slam the requested relief of a constructive trust put on the film with a nod to newspapers’ publication in the 1970s of the Pentagon Papers.
“As the Supreme Court’s decision in New York Times v. United States — in which the Court allowed the publication of the classified Pentagon Papers — makes clear, any ban on publication of the classified information provided by Mr. Snowden is constitutionally prohibited,” says the memo. “Because the requested constructive trust is nothing more than a disguised attempt to enjoin the continued showing of CITIZENFOUR, it is constitutionally impermissible.”
O’Melveny & Myers is also representing defendants Praxis Films, Laura Poitras, Participant Media, Diane Weyermann, Jeffrey Skoll, and The Weinstein Company.
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