Privacy in the First Amendment

the First Amendment interest of the public, operating through the publisher, is satisfied by the publication of the fact or event; the First Amendment interest of the subject is satisfied if the publisher refrains from identifying him. Hence there is no constitutional objection to preserving a tort remedy for the plaintiff if the publisher does identify him and thereby injures his privacy. But this result can only be reached if the constitutional privilege to tell the public a piece of news is judged separately from the constitutional privilege to tell the public who was involved.43

Edward Bloustein has already suggested a similar method of accommodating the First Amendment and the public disclosure tort. He conceives of the relevance issue as a limit on the First Amendment, thus providing room beyond the boundaries of free speech for the operation of privacy tort law.*4 Privacy, in his view, takes up where the free expression system leaves off. But in the context developed above, Bloustein's formulation is incomplete. It is not enough to say that protection will be allowed only in cases too trivial to enter the First Amendment arena. The difficult and important cases are those in which the First Amendment interests in privacy and speech compete. A court cannot dispose of the First Amendment issue by deciding merely that the name of an individual is "of legitimate public interest"; if it so decides, it must then balance the resulting First Amendment interest in publication of the name with the First Amendment interest in protecting the privacy of the individual.46 In doing so, it should consider the net effect of allowing publication (or protecting privacy) on the free expression system at large. The Court has said in other contexts that the constitutional interest in unrestricted speech can be outweighed; in some

43. To reach such decisions, of course, courts must overcome the misleading slogan that "names are news," which many have taken as a normative prescription. See Comment, The Right of Privacy: Normative-Descriptive Confusion in the Defense of Newsworthiness, 30 U. CHI. L. REV. 722 (1963). That "names are news" is apt commercial description has been endlessly demonstrated, but commercial fact should be irrelevant to the constitutional decision at stake: Does the name of a given person, linked to some information, have value to those who hear or read the resulting news item, in that they will find it useful in arriving at the decisions of self-government?

44. Bloustein, Privacy, Tort Law, and the Constitution: Is Warren and Brandeis' Tort Petty and Unconstitutional as Well?, 46 TEXAS L. REV. 611, 626 (1968).

45. Though he deals with a privacy of broader definition, Emerson also suggests that First Amendment rights and privacy rights should apply in mutually exclusive areas. T. EMERSON, supra note 7, at 548. For him as for Bloustein, the problem then becomes one of drawing the boundary line.

46. Of course, if the court decides that the name is not "of legitimate public interest," the publisher has no defense of privilege and the plaintiff's cause of action in tort is good. See, e.g., Briscoe v. Readers' Digest Ass'n, 4 Cal. 3d 529, 483 P.2d 34, 93 Cal. Rptr. 866 (1971).

47. See, eg, Chaplinsky v. New Hampshire, 315 U.S. 568, 571-72 (1942). Cf. Wright, Defamation, Privacy, and the Public's Right to Know, 46 TEXAS L. REV. 630, 634 (1968).

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cases it might well be outweighed by the First Amendment interest in privacy.

Evaluating the constitutionality of a given public disclosure suit should involve a calculation as to which result will best serve the system of which both claimants are a part and to which both appeal. The calculation may well come out in favor of publication, but it should be a calculation and not a blanket assertion that the First Amendment is always best served by the privileged publication of newsworthy items of information. At least in the area of identification, as suggested above, the calculation of effect on a free expression system might well produce an opposite result. If so, a public disclosure tort action addressed to the unauthorized use of names cannot be automatically invalidated under the First Amendment.48

II

The constitutional argument for the public disclosure tort suggests solutions to two major problems in current privacy law. First, the argument provides a conceptual definition of the privacy interest at stake; and second, it provides a doctrinal justification for protecting that interest in law. Common law privacy doctrine has failed to supply either of these. Prosser's definitive article on the common law of privacy established public disclosure as one of the four recognized categories of tort actions addressed to the protection of privacy.49 But Prosser's classification, based on differences in the kind of injury involved, was only descriptive; it offered no justification for the different types of recovery. And though his categories have been widely influential, critics have complained that his most original category-the public disclosure action -lacks a conceptual foundation.50

Of Prosser's four categories of privacy actions, three rest on venerable tort doctrine. False light is a homologue of libel; appropriation uses the reasoning and damage measure of personal property law; and intrusion expands on the law of trespass quare clausum fregit.51 In each cate

48. The tort might well be held unconstitutional as applied in a specific case. In New York Times Co. v. Sullivan, for example, the Alabama libel tort was so held. But the tort was not and could not have been held unconstitutional on its face, and the same would apply to the public disclosure tort in a constitutional challenge.

49. Prosser, supra note

50. See, e.g., Kalven, supra note 7, at 331-32.

51. For the relationship of false light and libel, sec Wade, Defamation and the Right of Privacy, 15 VAND. L. REV. 1093 (1962). See also Kalven, supra note 7, at 332, 339-41. For the use of property concepts in appropriation cases, compare the majority with the dissenting opinion in Roberson v. Rochester Folding Box Co., 171 N.Y. 538, 64 N.E. 442 (1902). See also O'Brien v. Pabst Sales Co., 124 F.2d 167, 170 (5th Cir. 1941) (dissenting opinion). See generally Prosser, supra note 1; Bloustein, An Answer to Dean Prosser, supra note 22.

Privacy in the First Amendment

gory the central injury has long been recognized in law, and calling it an injury to "privacy" is a semantic, not a legal, innovation. The public disclosure tort, on the other hand, presents a true conceptual novelty: the idea that mere publication of accurate data about a person might cause him legal injury.52

The false light action protects against injuries to reputation only; and, as with libel, truth is a defense. It therefore gives the individual no right to control accurate information about himself. Any relationship of the tort action to a concept of privacy is tenuous.

The action for appropriation of name or likeness protects against the publication of true information about the individual, but it concerns only that information on which the individual might have capitalized himself. The injury is a commercial one; the action protects less a right to privacy than a right to publicity.53 Since recovery under the appropriation tort depends on the economic injury suffered, those who suf fer the largest loss of privacy through publication of their names and faces-those who have been utterly unknown before the publication— stand to recover least.55

The intrusion tort comes closer than false light or appropriation to offering a satisfactory definition of privacy. It protects the individual's right to control access to his immediate surroundings, and thus defines

52. Before the famous article by Warren and Brandeis appeared in 1890, this was a suggestion virtually unheard in the law. Warren & Brandeis, The Right to Privacy, 4 HARV. L. REV. 193 (1890).

Seventy-five years later, the law still often fails to recognize injury to privacy in the absence of trespass, bodily injury, theft, or money damages. See Ruebhausen & Brim, Privacy and Behavioral Research, 65 COLUM. L. REV. 1184, 1185 (1965). See generally 1 F. HARPER & F. JAMES, THE LAW OF TORTS § 9.5, at 678-79 (1956).

53. Prosser, supra note 1, at 406-07. See also Nimmer, The Right of Publicity, 19 LAW & CONTEMP. PROB. 203 (1954); Note, The Right of Publicity: A Doctrinal Innovation, 62 YALE L.J. 1123 (1953).

54. There can be no economic measure of a genuine injury to privacy; the worth of a man's privacy cannot vary with the commercial value of his name or face in the marketplace. Yet just this distortion has crept into nearly all privacy tort recoveries because elements of appropriation actions have not been kept separate from those of other suits classed under the privacy heading. See Bloustein, An Answer to Dean Prosser, supra note 22, at 977-91.

Damage measure is a long-standing problem in privacy tort law which this Note does not purport to solve. Justices Harlan and Fortas have suggested an actual or compensatory damage measure. Rosenbloom v. Metromedia, 403 U.S. 29, 66 (1971) (Harlan, J., dissenting); Time, Inc. v. Hill, 385 U.S. 374, 420 (1967) (Fortas, J., dissenting). But for a discussion of the difficulty of measuring the extent of an injury to personality caused by publication, see Shapo, Media Injuries to Personality; An Essay on Legal Regulation of Public Communications, 46 TEXAS L. REV. 650, 658-67 (1968). For criticism of privacy damages as conjectural, see Kalven, supra note 7, at 334. For the observation that the injury for which privacy damages are supposed to compensate is irreparable, see Bloustein, An Answer to Dean Prosser, supra note 22, at 1002-03. See generally W. PROSSER, THE LAW OF TORTS § 117, at 815 (4th ed. 1971).

55. Perhaps in recognition of this problem, California has recently imposed a minimum liability of $300 for commercial use of a person's name, photograph, or likeness. CALIF. CIVIL CODE § 3344(a) (West Supp. 1972). The appropriation tort is the only one of the four privacy torts to be codified in state statutes. See W. PROSSER, supra note 54, § 117,

at 805.

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privacy as control of physical space. Physical space is an important and well-recognized element of privacy, and spatial metaphor dominates legal thinking about the subject; for example, we most commonly refer to any infringement of privacy as an "invasion." Yet on the basis of its definition of privacy, the intrusion tort draws distinctions which seem to have nothing to do with privateness. In Nader v. General Motors Corp., for example, "mere gathering" of private information was held not punishable unless the gatherer was "unreasonably intrusive." Though Nader claimed that he was shadowed by detectives, that a dossier on his private life was compiled through observation and interviews with acquaintances, and that his bank accounts and tax returns were pried into, only wiretapping and eavesdropping were held to give rise to a cause of action for intrusion.57

The public disclosure tort, by finding legal injury in the mere act of publishing accurate data about a person, protects something which is farther from traditional tort theory, and perhaps closer to a satisfactory concept of privacy. The actual content of a person's privacy is a subjective matter over which people inevitably disagree, but even as they disagree they can share a common concept of how privacy works and what purpose it serves. Scholars who have sought a conceptual definition of privacy have not been unanimous, but a common theme appears in many of their efforts: that privacy reflects a psychological need of the individual to keep some core of personality to himself, outside the notice of society.58 The ultimate value at stake has been variously described-human dignity, individuality, and autonomy have been sug gested-but in each description the point is that it is kept from the awareness of others at the will of the individual.59 Nor is privacy simply rigid secrecy; it is essential that the individual be free to reveal parts of his selfhood to chosen others. Charles Fried considers this gift of selfhood to be the essence of relationships of love, friendship, trust, and respect, and argues that these intimate relationships cannot exist without the confidence of the individual that only his chosen intimates will possess intimate knowledge of him; in other words, intimacy depends on the inaccessibility of one's private self to society at large.61

60

56. 25 N.Y.2d 560, 255 N.E.2d 765, 307 N.Y.S.2d 647 (1970).

57. 25 N.Y.2d 560, 564-71, 255 N.E.2d 705, 767-71, 307 N.Y.S.2d 647, 650-56 (1970). 58. H. ARENDT, THE HUMAN CONDITION 22-78 (1958); E. GOFFMAN, THE PRESENTATION OF SELF IN EVERYDAY LIFE (1959); A. WESTIN, supra note 25, at 8-63; Bloustein, An Answer to Dean Prosser, supra note 22, at 1002-03; Arnold Simmel, Privacy is Not an Isolated Freedom, 13 NOMÓS 71, 72-74 (1971); Warren & Brandeis, supra note 52, at 205. See also Rosenblatt v. Baer, 383 U.S. 75, 92 (1966) (Stewart, J., concurring).

59. See note 58 supra.

60. Shils, Privacy: Its Constitution and Vicissitudes, 31 LAW & CONTEMP. PROB. 281, 281-83 (1966).

61. Fried, Privacy, 77 YALE L.J. 475 (1968).

Privacy in the First Amendment

Control of information about oneself is thus the essence of privacy: "the claim of individuals . . . to determine for themselves when, how, and to what extent information about them is communicated to others."62 The public disclosure tort action-which punishes the unjustified exposure through mass publication of the data of an individual's life-contains the only direct recognition which the law has given to that non-libel, non-territorial, non-commercial claim.63

III

Constitutional law shares the conceptual weakness of common law in the privacy area. The Supreme Court has declared that the Constitution protects a right to privacy, but the supporting analysis offers no hint as to how that protected privacy might be defined. Other constitutional grounds which have been set forth present better possibilities of definition, but the rights so defined are far too narrow and qualified to serve as a satisfactory "right to privacy."

65

As the opinions in the recent abortion cases confirm, the Court's primary analytical model of privacy is that which appears in the plurality opinion of Mr. Justice Douglas in Griswold v. Connecticut. In Griswold, Justice Douglas collected the various existing constitutional doctrines which might be considered to protect some specific interest in privacy—including the First, Third, Fourth, Fifth, Ninth, and Fourteenth Amendments-and, rather than relying on any one of them, declared that their sum resulted in a constitutional interest in privacy in general. Justice Douglas' argument, though in form an argument by analogy to existing constitutional rights, in effect contended for the establishment of a new and independent constitutional right. The protection of privacy is incident to several constitutional goals; therefore it should be a goal itself. The formula reflects the belief of Pro

62. A. WESTIN, supra note 25, at 7. Similar definitions are offered in Ruebhausen & Brim, supra note 52, at 1189-90, and Shils, supra note 60, at 282.

63. If courts come to accept the separate doctrinal underpinning of the public disclosure tort, they can begin to untangle some of the confusions of privacy law in general, an arca whose state of organization one judge has likened to "a haystack in a hurricane." Ettore v. Philco Television Broadcasting Co., 229 F.2d 481, 485 (3d Cir. 1956) (Biggs, C.J.). Plaintiffs would be able to seek relief directly for injuries to their privacy without having to claim injury to reputation or pocketbook as they often must at present. See note 52 supra. Hybrid privacy actions would cease to distort libel law. Cf. Wade, supra note 51. See also Kalven, supra note 7, at 335. Finally, courts would be able consistently to separate economic injury from injury to privacy and relegate them to separate causes of action. Cf. note 54 supra.

64. Roe v. Wade, 93 S. Ct. 705 (1973); Doe v. Bolton, 93 S. Ct. 739 (1973).

65. 381 U.S. 479 (1965).

66.

Griswold, 381 U.S. at 480-86.

67. See Mitchell Franklin, The Ninth Amendment As Civil Law Method and its Implication for Republican Form of Government: Griswold v. Connecticut; South Carolina v. Katzenbach, 40 TULANE L. REV. 487, 490-91 (1966).