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First Amendment Limitations on Public Disclosure Actions

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First Amendment Limitations on Public Disclosure Actions First Amendment Limitations on Public Disclosure Actions In most states truthful public disclosure of private facts' con- cerning an individual constitutes a tort if the disclosure would be highly offensive to a reasonable person and if the disclosed subject matter is "not of legitimate concern to the public. ' 2 If the disclosed subject matter is of legitimate public concern, however, the news- worthiness privilege immunizes the disclosure.3 The newsworthiness defense has been established in the case law for over thirty-five years,4 and a decade ago the Supreme Court decided Time, Inc. v. Hill5 with an opinion that has been widely interpreted as ruling that newsworthiness as a limitation on privacy suits is mandated by the first amendment's guarantee of freedom I Private facts are those known, at most, to just a few people. See W. PROSSER, HANDBOOK OF THE LAW OF TORTS § 117, at 809-11 (4th ed. 1971). 2 RESTATEMENT (SECOND) OF TORTS § 652D(b) (Tent. Draft No. 21, 1975); RESTATEMENT (SECOND) OF TORTS § 652D, comments b-d at 113-16 (Tent. Draft No. 13, 1967). The public disclosure tort was spawned by a seminal law review article, Warren & Brandeis, The Right To Privacy, 4 HARV. L. REV. 193 (1890). For a detailed chronicle of the growth of the privacy tort, see D. PEMBER, PRIVACY AND THE PRESS (1972). This comment is concerned with constitutional limitations on actions for public disclo- sure of private facts. Accordingly, in speaking of "privacy," reference is made only to the interest protected by the public disclosure tort. However, three other torts are conventionally classified with the public disclosure tort under the rubric of privacy actions. See W. PROSSER, supra note 1, § 117, at 804. These torts are: (1) "appropriation, for the defendant's benefit or advantages, of the plaintiff's name or likeness," id.; (2) "intrusion upon the plaintiff's physical solitude or seclusion," id. at 807; and (3) "publicity which places the plaintiff in a false light in the public eye," id. at 812. This comment is also not concerned with the constitutional right of privacy, which is designed to preserve certain fundamental, personal rights free from governmental interference. See Roe v. Wade, 410 U.S. 113 (1973); Eisenstadt v. Baird, 405 U.S. 438 (1972); Comment, The Constitutional Right of Privacy: An Examination, 69 Nw. U.L. REv. 263 (1974). The courts have declined to treat public disclosure suits as actions to vindicate the federal constitutional right to privacy. See, e.g., Morris v. Danna, 411 F. Supp. 1300 (D. Minn. 1976), aff'd per curiam, 547 F.2d 436 (8th Cir. 1977). But cf. Comment, Privacy in the FirstAmendment, 82 YALE L.J. 1462 (1973) (arguing that the first amendment affirmatively supports a right to privacy). I The newsworthiness defense was established as an integral part of the privacy tort by Warren and Brandeis. Drawing an analogy to the qualified privilege of "fair comment" under the common law rules of defamation, they argued that "the right to privacy does not prohibit any publication of matter which is of public or general interest." Warren & Brandeis, supra note 2, at 214. 1 Sidis v. F-R Publishing Corp., 113 F.2d 806, 809 (2d Cir.), cert. denied, 311 U.S. 711 (1940). See Comment, The Right Of Privacy: Normative-Descriptive Confusion in the De- fense of Newsworthiness, 30 U. CHI. L. REv. 722 (1963), an interesting discussion of the news- worthiness privilege at common law. 5 385 U.S. 374 (1967). 19771 Public Disclosure Actions of the press.' Despite this august history, the definition, application, and effect of the newsworthiness privilege remain unsettled. This unresolved conflict between the important and profound interest protected by the public disclosure tort, preservation of a reasonable sense of individual dignity,7 and freedom of the press, a basic free- dom as well as the guardian of other liberties, has understandably attracted enormous scholarly attention. Constitutional scrutiny of the privacy tort in both the legal literature and the courts has con- centrated almost exclusively on the newsworthiness privilege.' The inquiry has focused on the exceedingly difficult problem of formu- lating a standard of newsworthiness that permits the states to pro- tect legitimate privacy interests in a manner consistent with first amendment freedoms. The thesis of this comment is that the defense of newsworthi- ness does not exhaust the constitutional limitations on the public I Professor Kalven's seminal piece, The Reasonable Man and the First Amendment: Hill, Butts, and Walker, 1967 Sup. CT. REV. 267, interpreted Justice Brennan's opinion in Hill as establishing that "[n]ewsworthiness defines the ambit of constitutional concern." Id. at 282. , The interests protected by the public disclosure tort have been defined and redefined many times. Warren and Brandeis wrote that the principle underlying the right to privacy was "that of an inviolate personality." Warren & Brandeis, supra note 2, at 205. Another commentator has asserted that the wrong redressed by the public disclosure tort "is to be found in the fact that a private life has been transformed into a public spectacle." Bloustein, Privacy, Tort Law, and the Constitution: Is Warren and Brandeis' Tort Petty and Unconsti- tutional as Well? 46 TEx. L. REv. 611, 619 (1968). A recent student comment has suggested that three specific privacy interests are affected by public disclosures: "(1) an interest in retaining actual control over the release of information about oneself, for the sake of one's dignity and individuality; (2) an interest in preserving intact (or not, as one sees fit) one's relationships with others; and (3) an interest in how the public perceives one, or reputation." Comment, An Accommodation of Privacy Interests and FirstAmendment Rights in Public Disclosure Cases, 124 U. PA. L. REV. 1385, 1394 (1976). See also A. WESTIN, PRIVACY AND FREEDOM (1967); Lusky, Invasion of Privacy: A Clarificationof Concepts, 72 COLUM. L. REV. 693 (1972). This comment defines the interest protected by the public disclosure tort as "a reason- able sense of individual dignity." This formulation is a heuristic device designed to collec- tively capture the important interests which are at times safeguarded by the public disclosure tort. See, e.g., Beytagh, Privacy and a Free Press: A Contemporary Conflict in Values, 20 N.Y.L.F. 453 (1975); Bloustein, supra note 7; Bloustein, The First Amendment and Privacy: The Supreme Court Justice and the Philosopher, 28 RUTGERS L. REv. 41 (1974); Kalven, Privacy In Tort Law-Were Warren and Brandeis Wrong? 31 LAW & CONTEMP. PROB. 326 (1966); Kalven, supra note 6; Nimmer, The Right To Speak From Times to Time: First Amendment Theory Applied to Libel and Misapplied to Privacy, 56 CALIF. L. REV. 935 (1968); Phillips, Defamation, Invasion of Privacy, and the ConstitutionalStandard of Care, 16 SANTA CLARAL. REv. 77 (1975); Comment, The FirstAmendment Privilege and Public Disclosure of PrivateFacts, 25 CATH. U.L. REV. 271 (1976); 5 CAP. U.L. REv. 267 (1976); 14 DuQ. L. REV. 507 (1976); 29 VAND. L. REV. 870 (1976). But see Taylor v. K.T.V.B., Inc., 96 Idaho 202, 525 P.2d 984 (1974); Comment, An Accommodation of Privacy Interests and First Amendment Rights in Public Disclosure Cases, 124 U. PA. L. REv. 1385 (1976). The University of Chicago Law Review [45:180 disclosure tort. The comment first discusses the relevant Supreme Court and lower court cases and then directly examines the consti- tutional constraints on the privacy tort. Finally, a model is proposed for accommodating the tort with the first amendment. I. SUPREME COURT DECISIONS No Supreme Court decision squarely addresses the question of the standard of protection afforded by the first amendment for truthful public disclosure of private facts. Indeed, the Court has expressly declined to decide whether the public disclosure tort is in principle compatible with the first amendment A few cases, how- ever, do provide clues to the Court's thinking on the manner in which freedom of the press circumscribes the public disclosure ac- tion. A. Hill and the Public Interest Test In Time, Inc. v. Hill' the Supreme Court reviewed the judg- 2 ment Hill" had obtained under the New York privacy statute,' which provided an action only if the privacy-invading story was ' 3 "fictitous."' The Court ruled that "the constitutional protections for speech and press preclude the application of the New York stat- ute to redress false reports on matters of public interest in the ab- sence of proof that the defendant published the report with knowl- edge of its falsity or in reckless disregard of its truth."'4 Because the I Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 491 (1975). , 385 U.S. 374 (1967). " In 1952, James Hill and his family were held hostages in their own home by escaped convicts for nineteen hours, then released unharmed. The Hills' captors were peaceable and courteous. The incident was widely reported at the time but subsequently the Hills moved far away, and Mr. Hill discouraged further publicity of the affair. In 1955, Life magazine ran a story concerning a play based on a novel about a hostage incident involving considerable violence. The story indicated that the play accurately portrayed the Hill incident. The Life story did not damage the Hills' reputation; they were portrayed as courageous in the face of peril. 385 U.S. at 377-78. " N.Y. Civ. RIGHTs LAW §§ 50-51 (McKinney 1948). , 385 U.S. at 384 n.9. " Id. at 387-88. Although this scienter requirement was enunciated in the majority opinion authored by Mr. Justice Brennan, only Justices Stewart and White joined the opinion without qualification. Justices Black and Douglas joined in the opinion only in order to settle the case on the basis of New York Times Co.
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