Smithsonian/Showtime joint venture

John F. Duffy jfduffy at
Fri Apr 7 17:20:17 PDT 2006

The FOIA request will be at the mercy of the Smithsonian. There's a DC Circuit case holding that the Smithsonian is not subject to FOIA because it is not part of the executive branch and is not otherwise covered under the statute.  I think the case is Dong v. Smithsonian. 

As a matter of policy, the Smithsonian follows the "spirit" of FOIA, but that leaves all FOIA requesters at the Institution's mercy. 

John Duffy

Sent from my BlackBerry wireless handheld.  

-----Original Message-----
From: "Corcos, Christine" <Christine.Corcos at>
Date: Fri, 7 Apr 2006 16:52:06 
To:"J. Noble" <jfnbl at>, <CONLAWPROF at>
Subject: RE: Smithsonian/Showtime joint venture

Carl Malamud has filed a FOIA request asking for details of the contract.  See here (
Christine Corcos
 Associate Professor of Law
 Paul M. Hebert Law Center, Louisiana State University
 Associate Professor, Women's and Gender Studies Program
 W325 Law Building
 1 East Campus Drive
 Baton Rouge LA 70803
 tel: 225/578-8327
 fax: 225/578-3677
 email: ccorcos at
From: conlawprof-bounces at [mailto:conlawprof-bounces at] On Behalf Of J. Noble
 Sent: Friday, April 07, 2006 4:34 PM
 Subject: Smithsonian/Showtime joint venture
Bill Patry has an interesting item about a joint venture between the Smithsonian Institute and Showtime Networks. He quotes from a New York Times article: "On March 9, Showtime and the Smithsonian announced the creation of Smithsonian Networks, a joint venture to develop television programming. Under the agreement, the joint venture has the right of first refusal to commercial documentaries that rely heavily on Smithsonian collections or staff. Those works would first have to be offered to Smithsonian on Demand, the cable channel that is expected to be the venture's first programming service." Ken Burns, whose documentaries "The Civil War," "Baseball," and "Jazz," is quoted as calling the deal "terrifying."
"The Civil War" was heavily promoted by PBS, and available to the public on DVD. Under the new contract, it would seem that one hundred years from now, the joint venture would have a first option to acquire rights to a documentary about the war in Iraq that relies on Smithsonian archives -- whether by Mel Gibson or Michael Moore -- and then control its release and distribution. It also suggests the possibility that documentary evidence, e.g. photographs of the Abu Ghraib abuses in the possession of the Dept. of Defense, might be "donated" to the Smithsonian to control distribution of documentaries that rely on the archived evidence.
Note that the Smithsonian was established by federal legislation. By law, its Board of Regents includes the Chief Justice (Chancellor), the Vice-President, 3 members of the Senate, and 3 members of the House, accounting for 8 of its 17 Regents.
The potential First Amendment problem seems as obvious as it is as yet unrealized. How would you frame a 1A challenge to the deal, which on its face is content-neutral. The details of the deal are confidential, but let's assume the right of first refusal requires the joint venture to match terms and conditions, including guaranteed release and promotional support. What happens when the venture exercises its option, buries the film and breaches the contract, confesses judgment, and pays damages?
Is the contract between the Smithsonian and Showtime state action? Does the right of first refusal on distribution rights burden speech? Does the exercise of a right of first refusal, followed by a breach of contract, violate the First Amendment?
Is there a present First Amendment challenge to the joint venture agreement? Does it arise only when the joint venture exercises its option over a film-maker's protest? Does it only arise when the joint venture breaches the contract after it exercises the option? Does it never arise because the joint venture is only liable for damages on the breach of contract?
John Noble
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