CRS Annotated Constitution

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Invasion of Privacy.—Governmental power to protect the privacy interests of its citizens by penalizing publication or authorizing causes of action for publication implicates directly First Amendment rights. Privacy is a concept composed of several aspects.160 As a tort concept, it embraces at least four branches of protected interests: protection from unreasonable intrusion upon one’s seclusion, from appropriation of one’s name or likeness, from unreasonable publicity given to one’s private life, and from publicity which unreasonably places one in a false light before the public.161

While the Court has variously recognized valid governmental interests in extending protection to privacy,162 it has at the same time interposed substantial free expression interests in the balance. Thus, in Time, Inc. v. Hill,163 the Times privilege was held to preclude recovery under a state privacy statute that permitted recovery for harm caused by exposure to public attention in any publication which contained factual inaccuracies, although not necessarily defamatory inaccuracies, in communications on matters of public interest. When in Gertz v. Robert Welch, Inc.,164 the Court held that the Times privilege was not applicable in defamation cases unless the plaintiff is a public official or public figure, even though plaintiff may have been involved in a matter of public interest, the question arose whether Hill applies to all “false–light” cases or only such cases involving public officials or public figures.165 And, more important, Gertz left unresolved the issue “whether the State may ever define and protect an area of privacy free from unwanted publicity in the press.”166

In Cox Broadcasting, the Court declined to pass on the broad question, holding instead that the accurate publication of informa[p.1146]tion obtained from public records is absolutely privileged. Thus, the State could not permit a civil recovery for invasion of privacy occasioned by the reporting of the name of a rape victim obtained from court records and from a proceeding in open court.167 Nevertheless, the Court in appearing to retreat from what had seemed to be settled principle, that truth is a constitutionally required defense in any defamation action, whether plaintiff be a public official, public figure, or private individual, may have preserved for itself the discretion to recognize a constitutionally permissible tort of invasion of privacy through publication of truthful information.168 But in recognition of the conflicting interests—in expression and in privacy— it is evident that the judicial process in this area will be cautious.

Continuing to adhere to “limited principles that sweep no more broadly than the appropriate context of the instant case,” the Court invalidated an award of damages against a newspaper for printing the name of a sexual assault victim lawfully obtained from a sheriff’s department press release. The state was unable to demonstrate that imposing liability served a “need” to further a state interest of the highest order, since the same interest could have been served by the more limited means of self regulation by the police, since the particular per se negligence statute precluded inquiry into the extent of privacy invasion (e.g., inquiry into whether the victim’s identity was already widely known), and since the statute sin[p.1147]gled out “mass communications” media for liability rather than applying evenhandedly to anyone disclosing a victim’s identity.169

Emotional Distress Tort Actions.—In Hustler Magazine, Inc. v. Falwell,170 the Court applied the New York Times v. Sullivan standard to recovery of damages by public officials and public figures for the tort of intentional infliction of emotional distress. The case involved an advertisement “parody” portraying the plaintiff, described by the Court as a “nationally known minister active as a commentator on politics and public affairs,” as engaged in “a drunken incestuous rendezvous with his mother in an outhouse.”171 Affirming liability in this case, the Court believed, would subject “political cartoonists and satirists . . .. to damage awards without any showing that their work falsely defamed its subject.”172 A proffered “outrageousness” standard for distinguishing such parodies from more traditional political cartoons was rejected. While not doubting that “the caricature of respondent . . .. is at best a distant cousin of [some] political cartoons . . .. and a rather poor relation at that,” the Court explained that “‘[o]utrageousness”’ in the area of political and social discourse has an inherent subjectiveness about it which would allow a jury to impose liability on the basis of the jurors’ tastes or views.”173 Therefore, proof of intent to cause injury, “the gravamen of the tort,” is insufficient “in the area of public debate about public figures.” Additional proof that the publication contained a false statement of fact made with actual malice was necessary, the Court concluded, in order “to give adequate ‘breathing space’ to the freedoms protected by the First Amendment.”174

“Right of Publicity” Tort Actions.—In Zacchini v. Scripps– Howard Broadcasting Co.,175 the Court held unprotected by the First Amendment a broadcast of a video tape of the “entire act” of a “human cannonball” in the context of the performer’s suit for damages against the company for having “appropriated” his act, thereby injuring his right to the publicity value of his performance. The Court emphasized two differences between the legal action permitted here and the legal actions found unprotected or not fully[p.1148]protected in defamation and other privacy–type suits. First, the interest sought to be protected was, rather than a party’s right to his reputation and freedom from mental distress, the right of the performer to remuneration for putting on his act. Second, the other torts if permitted decreased the information which would be made available to the public, whereas permitting this tort action would have an impact only on “who gets to do the publishing.”176 In both respects, the tort action was analogous to patent and copyright laws in that both provide an economic incentive to persons to make the investment required to produce a performance of interest to the public.177

Publication of Legally Confidential Information.—While a State may have numerous and important valid interests in assuring the confidentiality of certain information, it may not maintain this confidentiality through the criminal prosecution of nonparticipant third parties, including the press, who disclose or publish the information.178 The case arose in the context of the investigation of a state judge by an official disciplinary body; both by state constitutional provision and by statute, the body’s proceedings were required to be confidential and the statute made the divulging of information about the proceeding a misdemeanor. For publishing an accurate report about an investigation of a sitting judge, the newspaper was indicted and convicted of violating the statute, which the state courts construed to apply to nonparticipant divulging. Although the Court recognized the importance of confidentiality to the effectiveness of such a proceeding, it held that the publication here “lies near the core of the First Amendment” because the free discussion of public affairs, including the operation of the judicial system, is primary and the State’s interests were simply insufficient to justify the encroachment on freedom of speech and of the press.179 The scope of the privilege thus conferred by this decision on the press and on individuals is, however, somewhat unclear, because the Court appeared to reserve consideration of broader questions than those presented by the facts of the[p.1149]case.180 It does appear, however, that government would find it difficult to punish the publication of almost any information by a nonparticipant to the process in which the information was developed to the same degree as it would be foreclosed from obtaining prior restraint of such publication.181 There are also limits on the extent to which government may punish disclosures by participants in the criminal process, the Court having invalidated a restriction on a grand jury witness’s disclosure of his own testimony after the grand jury had been discharged.182


160 See, e.g., William Prosser, Law of Torts 117 (4th ed. 1971); Prosser, Privacy, 48 Calif. L. Rev. 383 (1960); J. Thomas McCarthy, The Rights of Publicity and Privacy (1987); Thomas Emerson, The System of Freedom of Expression 544–61 (1970). It should be noted that we do not have here the question of the protection of one’s privacy from governmental invasion.
161 Restatement (Second), of Torts §§ 652A–652I (1977). These four branches were originally propounded in Prosser’s 1960 article (supra n.), incorporated in the Restatement, and now “routinely accept[ed].” McCarthy, supra n.160, Sec. 5.8[A].
162 Time. Inc. v. Hill, 385 U.S. 374, 383 n.7 (1967) ; and id. 402, 404 (Justice Harlan, concurring in part and dissenting in part), 411, 412–15 (Justice Fortas dissenting); Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 487–89 (1975) .
163 385 U.S. 374 (1967) . See also Cantrell v. Forest City Publishing Co., 419 U.S. 245 (1974) .
164 418 U.S. 323 (1974) .
165 Cf. Cantrell v. Forest City Publishing Co., 419 U.S. 245, 250–51 (1974) ; Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 490 n.19 (1975) .
166 Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 491 (1975) .
167 More specifically, the information was obtained “from judicial records which are maintained in connection with a public prosecution and which themselves are open to public inspection.” Id. at 491. There was thus involved both the First Amendment and the traditional privilege of the press to report the events of judicial proceedings. Id. at 493, 494–96.
168 Thus, Justice White for the Court noted that the defense of truth is constitutionally required in suits by public officials or public figures. But “[t]he Court has nevertheless carefully left open the question whether the First and Fourteenth Amendments require that truth be recognized as a defense in a defamatory action brought by a private person as distinguished from a public official or public figure.” Id. at 490. If truth is not a constitutionally required defense, then it would be possible for the States to make truthful defamation of private individuals actionable and, more important, truthful reporting of matters that constitute invasions of privacy actionable. See Brasco v. Reader’s Digest, 4 Cal. 3d 520, 483 P. 2d 34, 93 Rptr. 866 (1971); Commonwealth v. Wiseman, 356 Mass. 251, 249 N.E. 2d 610 (1969), cert. den., 398 U.S. 960 (1970) . Concurring in Cohn, 420 U.S., 497, Justice Powell contended that the question of truth as a constitutionally required defense was long settled in the affirmative and that Gertz itself, which he wrote, was explainable on no other basis. But he too would reserve the question of actionable invasions of privacy through truthful reporting. “In some instances state actions that are denominated actions in defamation may in fact seek to protect citizens from injuries that are quite different from the wrongful damage to reputation flowing from false statements of fact. In such cases, the Constitution may permit a different balance. And, as today’s opinion properly recognizes, causes of action grounded in a State’s desire to protect privacy generally implicate interests that are distinct from those protected by defamation actions.” Id. at 500.
169 The Florida Star v. B.J.F., 491 U.S. 524 (1989) .
170 485 U.S. 46 (1988) .
171 485U.S. at 47–48 485U.S. at 47–48.
172 Id. at 53.
173 Id. at 55.
174 Id. at 52–53.
175 433 U.S. 562 (1977) . The “right of publicity” tort is conceptually related to one of the privacy strands, “appropriation” of one’s name or likeness for commercial purposes. Id. at 569–72. Justices Powell, Brennan, and Marshall dissented, finding the broadcast protected, id. at 579, and Justice Stevens dissented on other grounds. Id. at 582.
176 Id. at 573–74. Plaintiff was not seeking to bar the broadcast but rather to be paid for the value he lost through the broadcasting.
177 Id. at 576–78. This discussion is the closest the Court has come in considering how copyright laws in particular are to be reconciled with the First Amendment. The Court’s emphasis is that they encourage the production of work for the public’s benefit.
178 Landmark Communications v. Virginia, 435 U.S. 829 (1978) . The decision by Chief Justice Burger was unanimous, Justices Brennan and Powell not participating, but Justice Stewart would have limited the holding to freedom of the press to publish. Id. at 848. See also Smith v. Daily Mail Pub. Co., 433 U.S. 97 (1979) .
179 Id. at 838–42. The state court’s utilization of the clear– and–present–danger test was disapproved in its application; additionally, the Court questioned the relevance of the test in this case. Id. at 842–45.
180 Cox Broadcasting Corp. v. Cohn, 420 U.S. 469 (1975) , in the context of a civil proceeding, had held that the First Amendment did not permit the imposition of liability on the press for truthful publication of information released to the public in official court records, id. at 496, but had expressly reserved the question “whether the publication of truthful information withheld by law from the public domain is similarly privileged,” id. at 497 n.27, and Landmark on its face appears to answer the question affirmatively. Caution is impelled, however, by the Court’s similar reservation. “We need not address all the implications of that question here, but only whether in the circumstances of this case Landmark’s publication is protected by the First Amendment.” 435U.S. at 840 435U.S. at 840.
181 See Nebraska Press Ass’n v. Stuart, 427 U.S. 539 (1976) .
182 Butterworth v. Smith, 494 U.S. 624 (1990) .
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