When can the law stop you from saying
things about me in order to protect my privacy?
Pretty rarely it turns out. Here are the five rules of free speech and privacy.
Actually before we get to the rules, let's just make clear what kind of privacy we're talking about.
The Supreme Court has sometimes discussed a right to privacy but that's generally a right to personal autonomy.
For instance, the right to buy and use contraceptives. We're not talking about that right here.
We also often have a right to physical privacy in the sense of freedom from trespass or surveillance.
The Fourth Amendment for example protects us against unreasonable searches and seizures by the government.
The Law of Trespass protects us against physical intrusions by our neighbors.
The Tort of Intrusion Upon Seclusion protects us from other kinds of surveillance,
such as people photographing into our bedrooms using high-powered magnifying lenses,
or people telephoning us repeatedly in the middle of the night. We're not talking about that here either.
Rather we're talking about informational privacy: restrictions on your communicating information
about me when I think that information is highly private. Now on to the rules.
Rule one: We usually have the right to speak about other people. Not just about ideas,
we can express opinions about them, even if those opinions are insulting.
We can say true things about them even when they'd rather keep that information private.
Newspapers and TV programs are chock full of speech about people,
many of whom would rather not be spoken about. The same is true of biographies.
Even autobiographies usually reveal information not just about the writer but about his family, friends, lovers,
business associates, and more. Rule two: We have a near absolute right to reproduce information
drawn from government records. Newspapers can quote arrest records or documents from court cases
even when they describe the private details of the defendants life or of a victim's life.
For instance in 1989 the Supreme Court struck down a statute that forbade the media from publishing
the names of sex offense victims. Such a statute the court held wrongly limited the right
to publish information drawn from government records such as arrest reports.
And this right doesn't vanish with time. There can be no european-style right to be forgotten under American law,
at least when it comes to material taken from government records.
Rule 3: Our free speech rights extend to speech about private figures and not just about government officials
or famous people. Indeed newspaper stories often this close information about ordinary people
who have never sought publicity.
Rule four: Lower courts have allowed some civil lawsuits for so-called
public disclosure of private facts. The Supreme Court has never decided whether this torte
is constitutionally valid.
But even if the torte can be constitutional, courts agreed that it's sharply limited. First it only applies to revelations
of highly embarrassing or personal information such as sexual history or medical conditions.
Second, it's limited to statements that aren't newsworthy. That's a vague line but courts have read
the newsworthiness defense quite broadly. So long as the facts are linked to newsworthy events such as crime,
people are free to repeat them.
Third, as rule two notes, material borrowed from government records again such as trial transcripts
or arrest reports can pretty much always be published.
Rule five: The strongest protection for privacy is generally contract.
If a business for instance promises not to disclose information about its customers,
that promise can be enforced in court. Same if for instance someone who is working for a celebrity
signs a nondisclosure agreement as a condition of employment. Such contracts aren't always enforceable.
For instance if a court orders you to disclose information about a customer,
you can't just insist that you had promised the customer to keep it secret.
Likewise a federal statute bars businesses from requiring consumers to sign non-disparagement clauses
in which the consumer promises not to publish critical reviews of the business.
But if a contract not to speak is otherwise enforceable.
The First Amendment doesn't prevent its enforcement and that extends to promises of privacy
as well as to other non-disclosure agreements.
So to sum up, we usually have the right to speak about other people. The right to publish information
from government records is nearly absolute and doesn't vanish with time.
Our free speech rights extend to speech about private figures and not just government officials,
or famous people. Lower courts have allowed some civil lawsuits for public disclosure of private facts,
but the Supreme Court has never decided whether this is constitutionally valid,
and the strongest protection for privacy is generally contract.
This is not legal advice. If this were legal advice it would be followed by a bill. Please use responsibly.
Written by Eugene Volokh, who is an actual real-life First Amendment law professor at UCLA.
I'm Eugene Volokh and I approve this message.
