Given this focus on press invasions, it is unsurprising that many scholars have seen their proposed new tort as interfering with the First Amendment guarantees of press freedoms. (See, e.g., Lorelai Van Wey’s Note, “Private Facts Tort: The End is Here.”) Ben Bratman’s 2002 law review article, “Brandeis & Warren’s ‘The Right to Privacy and the Birth of the Right to Privacy’” discusses the background of this issue in light of “the considerable focus that Brandeis and Warren placed on the print media and its alleged violations of privacy” (636).

In 1890, when Warren and Brandeis’ published their article, the First Amendment of the Bill of Rights had yet to be applied to the states, although many states had their own versions. Despite this, in many ways “freedom of speech and the press” was viewed in stronger terms then than now (despite the fact that the Alien and Sedition Acts of 1798 was never challenged by the Supreme Court). There was, for example, no perceived difference between commercial and political speech–both were granted the same level of protection. The nineteenth century juries Thomas Cooley’s position on the issue was generally considered the most persuasive:

The constitutional liberty of speech and ofthe press, as we understand it, implies a right to freely utter and publish whatever the citizen may please, and to be protected against any responsibility for so doing, except so far as such publications, from their blasphemy, obscenity, or scandalous character, may be a public offense, or as by their falsehood and malice they may injuriously affect the standing, reputation, or pecuniary interests of individuals. (Bratman 637)

Warren and Brandeis were not unaware of this potential conflict, and carved out an exception to their proposed tort by adding a

“public interest” or “public character” exception to their tort, which recognized that the press or commercial photographers had to be free to record and report the actions of public characters and officials (Bratman 636)

In other words, even Warren and Brandeis, despite their argument that they were not inventing anything new at all, recognized that the right to privacy they were articulating had the potential to conflict with the guarantees of the First Amendment.

Image by takomabibelot via Flickr

The First Amendment to the United States Constitution is first of ten Amendments that constitute the so-called “Bill of Rights.” It originally bound only the federal government–not state governments–but after the Civil War, it slowly began to be “incorporated” through the Fourteenth Amendment to apply to the states as well. It reads as follows:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

It consists of multiple parts:

1. The Establishment Clause, which forbids government support of any particular religion. This is also considered to be the foundation for the “separation of church and state”: the requirement that religious and governmental matters not overlap. It is not an absolute prohibition, and many conservatives see it not as requiring the removal of God or prayer from public life, but rather as a prohibition on establishing and promoting one specific state church.
2. The Free Exercise Clause, which generally forbids governmental interference in religious practices absent a “compelling state interest.”
3. Freedom of Speech, which generally–although not absolutely–protects the right to speak even if it offends others. The classic example of an acceptable limitation is that one may be punished for the harm that results from yelling, “Fire!” in a crowded theater. The protection is against government restrictions on speech, not private restrictions, although private restrictions that invoke state power (as with a libel action) are subject to First Amendment scrutiny as well.
4. Freedom of the Press, a right very related to the previous one, but focused more on publications than individuals. It is also subject to limitation (libel, for example). Regulation of broadcast media is not generally a violation of press freedoms, although content-based regulations are usually not allowable.
5. The Freedom of Assembly and to Petition, although directly stated, have rarely been ruled on by the Supreme Court. The general idea is that–subject to reasonable time, place, and manner requirements–citizens are allowed to gather and ask for a redress of grievances.
6. Freedom of Association is a right implied by the First Amendment, although not directly stated. Thus, political parties may exclude those of another party from voting in their primaries, and the Boy Scouts may exclude openly gay scoutmasters.

“Silos” by Sean Kelly. CC BY-NC-SA 2.0.

The push for “privacy” that demands an ability to allow us to restrict who sees what–enabled, for example, by new tools in Facebook and Google+–also creates and reinforces silos (filter bubbles, echo chambers) that prevent our exposure to different ideas. But  this move highlights potential conflicts between a number of rights: freedom of association and freedom of speech and the press (both from the First Amendment) and rights to privacy (from the First, Fourth, Fifth, and Fourteenth Amendments). What is this conflict? Is it real? How can we (begin) to resolve it?

The Marketplace of Ideas

Core to many American arguments on behalf of the value to a liberal democracy (in the old sense of liberal) of the freedom to speak is the concept of a “marketplace of ideas,” articulated by both Thomas Jefferson and, perhaps most persuasively, by John Stuart Mill in On Liberty. The idea is that only through free and prolific competition amongst ideas, achieved through open discussion, can one ascertain truth and, in turn, advance society. Without hearing falsehoods, one can never be sure of one’s truth, and through proving something false one verifies and re-invigorates truth and beliefs. But without the competition, truth is unobtainable, and even if obtained, belief in it becomes enervated and weak. Constant exposure to different viewpoints is absolutely key to a functioning, progressing society.

Republic.com and the Problem of Silos

In 2002, prolific author Cass Sunstein (in Republic.com, then again in Republic.com 2.0 in 2007) expressed deep concern about exactly this, arguing that trends in individualizing information flow were as harmful to democracy as were trends to centralize information control. In other words, having 1,000 individual silos tailored to personal interests could limit the free-flow of ideas as much as (or more than) having, say, three sources of broadcast news once did. In either case we would limit our exposure to diverse viewpoints and, in the individualized, modern case, also limit the beneficial unifying effect that shared viewpoints provided.

Free Speech and Privacy

This concern is different, though possibly related, to that expressed by Eugene Volokh in regards to free speech and privacy. His argument is with governmental regulations/laws/decisions that attempt to protect privacy by restricting what other people can say. That is, privacy laws that prevent, for example, a journalist from writing about my medical history infringe on the First Amendment.

In contrast to governmental action, the impact of speech silos on democracy is not a question of infringement on private liberties. Instead, through purely private decisions, freely achieved by my own decisions and without interference from government, the same pernicious, long-term impact on democracy and liberty is achieved. In one case, government blocks the sharing of ideas to protect me, while in the other, I block my own sharing of, and my own exposure to, the ideas of others. But in both cases, the marketplace is undermined.

But in the case of government regulations, the Constitution can be invoked as an authority, while in the case of Facebook and Google+ privacy settings, there is no legal check aimed at preserving the marketplace of ideas. Arguments for liberty, which appear to fruitfully favor a multiplicity of viewpoints in the case of government regulations that restrict speech in the name of privacy, instead favor allowing individuals and companies to enable avoiding the kinds of other viewpoints that Mill–and Volokh–argue are valuable for a liberty-loving democracy. One might argue to simply get government out of the privacy game at all (since the government has encouraged Facebook, for example, to focus on allowing privacy controls)–but that doesn’t deal with the very real market ($$$, eyeballs) demand for greater control over sharing.

Sunstein advocates for a larger governmental role in overseeing media and sites in order to guarantee that people have the option, at least, of exposure to a myriad of viewpoints. (Exactly how one might do this is far from clear, though.) But the core of the contemporary filter problem is not one of big corporations restricting our exposure (or not that alone) to new ideas. Instead, it is our own individual choices to limit our own exposure to alternative viewpoints that is to blame. A benevolent dictator might be able to counteract this trend, but a liberal democracy cannot (or can it?) do so through government fiat. The conflict, then, is not so much between constitutional rights as much as it is a conflict between core values: privacy and control vs. exposure and learning.

Education

So how can we attempt to solve this conundrum? An effective K-12 educational system, backed up by a robust university education, is the best societal approach I can imagine. (Individual parents can help, too.) A classroom is one of the few locations where we as a society have the chance to force people to be exposed to new ideas. Teaching and inspiring students to seek out alternative perspectives and critically analyze them–without rejecting the new and unusual out of hand–is perhaps the least coercive method I can imagine for maintaining a marketplace of ideas in the face of tools that enable an individual to opt out.

But I’m open to other ideas, so if you have any, please share!

Related articles

• Thinking about privacy and the First Amendment (inpropriapersona.com)
• The Echo Chamber Revisited (On the Media, npr.org)
• The Filter Bubble (amazon.com)

“Visible downgrading” by Alex Wellerstein. CC BY 2.0 license.

The concept of “privacy”–as in “the right to privacy”–can be understood in a number of ways. This multitude of potential meanings and uses is partly why the concept is controversial, confusing, and perhaps even contradictory. Previously I have discussed the difference in perceptions of privacy in the 19th century, where the legal focus seemed to be more on “confidentiality” than what we have come to understand as “privacy” today. That is, the 19th century concern was with maintaining trust relationships between people rather than with protecting either secrecy or autonomy (although that is not to say that these were not valued).

Autonomy

This changed with the 1890 publication of the Samuel Warren and Louis Brandeis law review article called “The Right to Privacy.” In this article, Warren and Brandeis are actually concerned with something more akin to autonomy than secrecy: “from Greek autonomia, from autonomos  ‘having its own laws,’ from autos ‘self’ + nomos ‘law’” (from Apple’s dictionary app).  That is, allowing people to control their own self-identity, rather than allowing it to be exploited by (for example) yellow journalists. Secrecy, on the other hand, is about keeping something away from the knowledge of others. The concepts are related, but distinct and different, and require different legal approaches.

“Paparazzi” by Clément Seifert. CC BY-NC-SA 2.0 licensed.

The Warren and Brandeis article advocated for the protection of a person’s “inviolate personality” and the “fundamental right to be let alone.” They were not concerned with illegal government searches of private residences–or even the trespasses of journalists in private land–but rather with the publication and dissemination of information that, they believed, most properly belonged to a person. In other words, their approach was akin to a broad notion of copyright or “right of publicity,” because it proposed allowing people to control the publication of their own likeness (photos of themselves, for example). Such control was based on a kind of “moral right,” in a sense, to own one’s own self, or to be “autonomous.” The implications of a right to control the publication of information about one’s self has the potential to conflict with the First Amendment rights of others in a way that a right to privacy as secrecy might not.

In 1928, now a Supreme Court justice, Brandeis wrote in dissent in Olmstead v. U.S. that the right to privacy was the “right to be left alone–the most comprehensive of rights, and the right most valued by a free people.” Cornell’s Legal Information Institute explains that the right to privacy has thus “developed into a liberty of personal autonomy protected by the 14th amendment.” The focus on a “right to privacy” as “a liberty of personal autonomy” is why the Fourteenth Amendment (due process and equal protection), and not the Fourth Amendment (search and seizure), is often so important today when discussing privacy, and is the constitutional underpinning for key decisions like Roe v. Wade.

Secrecy

“Completely Tapped” by Byung Kyu Park. CC BY-SA 2.0 license.

A right to secrecy is most closely aligned with the Fourth Amendment (search and seizure) and with trespass, and less with the “penumbra” of due process or equal protection. A right to keep things secret is also about “inviolability” in some sense. Thus, in Olmstead, Brandeis could argue that a wiretap could intrude on a “right to privacy”–the “right to be let alone”–as part of a violation of the Fourth Amendment, even though no publication or dissemination had necessarily occurred. A right to autonomy, to protect one’s self, might well require a right to secrecy in a case involving wiretaps, but it has less value in protecting abortion rights, for example, where the real question is one of self-determination, not secrecy.

Approaching a right to secrecy legally, one might prosecute an overzealous journalist not for the publication of embarrassing information–and certainly not for photos taken in public places–but for a trespass involved in obtaining private letters. In some cases, the First Amendment might still be implicated (think of the Pentagon Papers), but the restraint on speech is much weaker when what is being restricted is not directly the publication of materials, but rather the manner in which they were obtained.

In this sense, then, data privacy laws–which Eugene Volokh, for example, has explained are in many ways in conflict with the First Amendment–might be more readily disentangled from that constitutional problem if they are realigned with traditional laws against trespass. The law, then, would not be focused on preventing publication (although that might be an issue still, and might still have First Amendment implications), but rather on punishing transgressions or trespasses.

Jack M. Balkin, from the Knight Foundation. CC BY-SA 2.0.

In “Digital Speech and Democratic Culture: A Theory of Freedom of Expression for the Information Society,” Jack Balkin (of the blog Balkinization) writes about what he sees as the appropriation of free speech ideals by media corporations in an effort to maximize their capital investments:

Thus, in the digital age, media corporations have interpreted the free speech principle broadly to combat regulation of digital networks and narrowly in order to protect and expand their intellectual property rights. … Invoking a property-based theory of free expression, they have rejected arguments that public regulation is necessary to keep conduits open and freely available to a wide variety of speakers. (22)

Balkin sees this as reminiscent of a similar appropriation during the first Gilded Age of the 1870s and 1880s especially, when the “robber barons” grew wealthy and strong. Corporations of the time lobbied (and won) for new property rights and new constitutional protections against employment regulations (24). The abolitionists and others had celebrated the freedom to labor for whom one chose as a rejection of slavery; the corporations reinterpreted this as the “freedom of contract,” and used it to prevent government labor regulations (24). So, for example, when Congress passed a child labor law in 1916, the courts–drawing on the freedom of contract now enshrined as a principle in the Constitutional theory of the day–struck it down two years later (in Hammer v. Dagenhart).

Bilkin writes:

In what Clinton Rossiter called the “Great Train Robbery of Intellectual History,” laissez-faire conservatives appropriated the words and symbols of early nineteenth-century liberalism–liberty, opportunity, progress, and individualism–and gave them an economic reinterpretation that served corporate interests. … By the turn of the twentieth century, the best legal minds that money could buy had reshaped the liberal rights rhetoric of the 1830s into a powerful conservative defense of property that they claimed was the rightful heir to the best American traditions of individualism and personal freedom. (24–25)

Today, Bilkin said, we’re seeing a similar move: “The right to speak has been recast as a right to be free from business regulation” (25). Corporations have moved to extend copyright, making it both broader (covering more) and longer (lasting for 70+ years instead of the original fourteen years of 1790. ) They have also argued that networks should be freer than ever of government regulation, because such regulations–passed in the name of protecting the public’s speech–infringes on their freedom of speech.

(Interesting note: this move–discussed in Balkin’s 2004 article–is very similar to what happened with corporate money and speech in the 2010 Citizen’s United decision.)

By Karsten Schmidt

In “Thinking about privacy and the First Amendment,” I discussed Eugene Volokh’s critique of privacy laws in relation to  Samuel D. Warren and Louis D. Brandeis’s 1890 law review arti­cle, “The Right to Privacy.” In “Cyberspace and Privacy: A New Legal Paradigm?,” Volokh argues that “the right to information privacy–my right to control your communication of personally identifiable information about me–is a right to have the government stop you from speaking about me.”

In “Reconciling Data Privacy and the First Amendment,” Neil Richards takes issue with Volokh’s arguments. Richards instead argues that, most importantly, privacy regulation is not speech regulation at all, and, additionally, that in commercial contexts at least, “speech restrictions … have never triggered heightened First Amendment scrutiny.” In other words, either the data being protected isn’t “speech” in the legal sense, or “because they are legitimate speech regulations under existing doctrine.”

Scope

Richards advocates that courts should first consider whether a privacy rule even regulates what falls within the scope of the First Amendment. To explain “scope,” Richards points out that many normal criminal laws punish “speech,” but fall outside the scope of the First Amendment: fraud, criminal threats, conspiracies, and solicitation of criminal acts, for example. Additional non-criminal laws constrain speech “in the context of securities, antitrust, labor organizing, copyrights, trademarks, sexual harassment … and vast amounts of evidence and tort law.” These too are considered outside the scope of the First Amendment. Why should privacy laws be any different?

Richards proposes an approach to treating scope that draws on concepts used in other Constitutional jurisprudence. He suggests using “rational basis” review for legal rules involving the commercial trade in customer data, but using higher levels of scrutiny for “privacy rules that restrict speech.” Disclosure of “newsworthy facts” would warrant strict scrutiny, while lesser-protected speech (telemarketing, photography) would receive “intermediate scrutiny under the commercial speech doctrine.”

Categories of Information Processing

To better analyze and target rules for different parts of information processing in the context of potentially private data, Richards proposes four different stages, only two of which potentially fall within the scope of the First Amendment at all:

1. rules governing the collection of information,
2. rules governing the use of such information,
3. rules governing the disclosure of information,
4. regulation of direct marketing.

Stages 1 and 2 can be safely regulated without bringing the rules within the scope of the First Amendment, while stage 3 can be regulated under commercial speech rules. Stage 4 clearly falls within the First Amendment, but current doctrine already permits extensive regulation of such speech.

Conclusion

In the end, then, Richards argues that “when we subject both data privacy regulations and the First Amendment to careful scrutiny, they can be reconciled without sacrificing either.” Although Volokh’s critique of privacy laws as violations of the First Amendment is rhetorically powerful, I find Richards’ arguments more compelling, as well as more reconcilable with positive societal goals. This last point is perhaps not enough on which to base a legal argument, but I appreciate legal arguments that support such ends in a rational and articulate manner.

Digital edition of “The Right to Privacy”

Part of the historical work I’ve been doing focuses on the history of privacy and the introduction of new technologies, like the telegraph. In terms of of the U.S. Constitution, I’ve been focused mostly on the Fourth Amendment (which regulates searches and seizures). However, the First Amendment’s speech protections are also potentially implicated, especially when it comes to modern information privacy law–a point Eugene Volokh explored in his 2000 law review article, “Cyberspace and Privacy: A New Legal Paradigm?”

I am not going to as fully analyze the issue here, but I wanted to begin thinking about it. To do this, I’m going to think about Volokh’s points in relation to Samuel D. Warren and Louis D. Brandeis’s 1890 law review article, “The Right to Privacy.” This highly influential piece advocated for “the fundamental right to be let alone.” But is it impossible to reconcile such a right with an equally compelling right to free speech?

Of course, the right to “free speech” is not an absolute right, and there are many constraints (yelling “fire” in a crowded theater is, of course, classic). But still, the requirement that the government “shall make no law … abridging the freedom of speech, or of the press” is explicitly written in the Constitution, whereas the “right to privacy” is part of its “penumbra.” So perhaps the debate is easier for originalists like Antonin Scalia, who can end the debate by asserting that the original meaning of the Constitution does not include a right to privacy, but it does include a free speech provision.

The Warren and Brandeis article attacks the new gossip columns and photographs made possible by new technologies of the era. They connect their argument for the protection of a person’s “inviolate personality” to the protections afforded, via copyright for example, to “personal writings and all other personal productions, not against theft and physical appropriation, but against publication in any form” (206).

Volokh quickly dispenses with arguments that copyright, despite its restrictions on speech, is itself barred by the First Amendment, primarily on the grounds that courts have not allowed “intellectual property owners the power to suppress facts” (1065, citing to Harper & Row v. Nation Enterprises). Thus, I may publish a cutting-edge exploration of new historical materials I spent years digging out of the archives and while you may not simply photocopy and redistribute my work, you can write your own work drawing on all the labor I spent bringing forth these new facts. (See also, “You do not get an ‘A for effort’ with copyright.”)

But do I have a right to prevent the publication of personal facts about me, however embarrassing they may be? (Remember, copyright protects my creative expression, not the bare facts themselves, so it’s no help here.) What about restrictions on publishing my criminal history? Or my video rental history? Or  my credit card purchasing history?

If I obtain these items via a contractual arrangement, Volokh says, there is no problem, because enforcing contractual restrictions on speech does not offend the Constitution. But what if I get them without agreeing to a contract? Can the government still prohibit their publication? Volokh says there is a problem here (1092–94).

Very often, free speech protections are analyzed under a “marketplace of ideas” paradigm. In this analysis, we need speech–and allowing it is good–because it contributes to our ability to make decisions, and the greater the marketplace, the better decisions we can make. Bad ideas are countered by more speech, not by restricting their entry into the marketplace.

My criminal history and credit card history are certainly good information to have if you are evaluating me for a job or elected office, so in a marketplace analysis, they shouldn’t be suppressed. But there is a realm of “non-public-concern” topics that can be restricted (accidental nudity, for example)–but Volokh suggests this is too slippery of a concept to function as an effective test (1094–95).

Government can regulate speech if there is a “compelling state interest” (1106). Is privacy protection sufficiently compelling? Relatedly, is the penumbra-derived right to privacy sufficient to counter free speech arguments?

Volokh argues that privacy rights are “statutory or common-law” derived, and are not “analogous to a constitutional right” (1108). Furthermore, the First Amendment only prevents government interference with speech, not private actions to interfere with it; thus, privacy rights might well only protect against government violations, not allow for government to regulate non-government interference with privacy.

Volokh attacks Warren and Brandeis most directly when he writes:

On the other hand, if the claim is that the ability of private parties to communicate personal information about others
by itself “destroy[s] individual dignity and integrity and emasculate[s] individual freedom and independence,” “deprive[s people] of [their] individuality,” makes it impossible for “intimate relationships [to] exist,” or denies that a person’s “existence is his own,” such a claim is simply false.

This is pretty close to the argument that Warren and Brandeis make when they attack gossip columns. But even if the claim is true, Volokh says restricting publication to protect this is unconstitutional:

Under current constitutional doctrine, the answer seems to be no. Though the Supreme Court has sometimes left open the door to the possibility of restricting truthful speech simply on those grounds, the general trend of the cases cuts against this: Even offensive, outrageous, disrespectful, and dignity-assaulting speech is constitutionally protected.

It seems to me pretty clear that Volokh does not agree with Warren and Brandeis. I still think there’s potential for an alternative approach that might allow for certain kinds of privacy protection without overly violating the U.S.‘s very strong speech protections (note that this isn’t a problem generally in Europe, which permits much greater restrictions on speech when it serves as a protection against, for example, Nazism), but it’s not yet obvious to me what approach would be.

Related articles

• Knowingly False Statements of Fact and the First Amendment (volokh.com)

“George Carlin” by mindelei (CC BY-NC-SA 2.0)

Balancing strong First Amendment (“free speech”) speech protections with the desire to protect the delicate sensibilities of America’s youth is always a complex task. Two seminal Supreme Court cases–Cohen v. California and FCC v. Pacifica Foundation–illustrate the struggle the Court has had to find the right path.

In Cohen, decided in 1971, the Supreme Court overturned the conviction of a man wearing a jacked in a courthouse that attacked the draft with a four-letter word (“Fuck the Draft”). In that case, Justice Harlan, writing for the majority, “one man’s vulgarity is another’s lyric,” and said that offended readers could simply turn away. A state has no right to ban profanity to maintain “civility.”

Nonetheless, in 1978 the court upheld fines imposed by the FCC on the owner of a New York radio station for broadcasting George Carlin’s “Filthy Words.” Why the difference? Is the medium of radio really so different that it requires different rules, ones that now do permit the state (in this instance, the federal government) to ban profanity? Or was Carlin’s speech in a different, less protected category than Cohen’s opinion on the draft?

The majority in FCC v. Pacifica Foundation sees no conflict with Cohen, and in fact cites Harlan’s vulgarity statement approvingly–but then proceeds to say that

content of that character [i.e., “vulgar,” “offensive,” and “shocking”] is not entitled to absolute constitutional protection under all circumstances, we must consider its context in order to determine whether the Commission’s action was constitutionally permissible.

Indeed, Cohen foresees this issue of considering the circumstances, and ties those circumstances to invasions of privacy interests, especially in the home:

The ability of government, consonant with the Constitution, to shut off discourse solely to protect others from hearing it is, in other words, dependent upon a showing that substantial privacy interests are being invaded in an essentially intolerable manner. Any broader view of this authority would effectively empower a majority to silence dissidents simply as a matter of personal predilections.

This is the exception seized upon most strongly by the majority in Pacifica Foundation:

Patently offensive, indecent material presented over the airwaves confronts the citizen, not only in public, but also in the privacy of the home, where the individual’s right to be left alone plainly outweighs the First Amendment rights of an intruder. Rowan v. Post Office Dept., 397 U. S. 728.

(Additionally, the Court also argues for the importance of protecting children–an argument that the Court in Cohen found unconvincing, but which the majority here thinks is quite important.)

In his concurrence, Justice Powell makes the case that broadcast media are uniquely capable of intruding on “unwilling adults … in their homes”:

The result turns instead on the unique characteristics of the broadcast media, combined with society’s right to protect its children from speech generally agreed to be inappropriate for their years, and with the interest of unwilling adults in not being assaulted by such offensive speech in their homes. Moreover, I doubt whether today’s decision will prevent any adult who wishes to receive Carlin’s message in Carlin’s own words from doing so, and from making for himself a value judgment as to the merit of the message and words.

Justice Brennan, though, strongly dissents, and attacks the majority for imposing its views of words and morality on the public at large:

the Court’s decision may be seen for what, in the broader perspective, it really is: another of the dominant culture’s inevitable efforts to force those groups who do not share its mores to conform to its way of thinking, acting, and speaking.

Brennan also argues that there is nothing so invasive about radio as a broadcast media that uniquely allows it to invade the home:

unlike other intrusive modes of communication, such as sound trucks, “[t]he radio can be turned off,“Lehman v. Shaker Heights, 418 U. S. 298,302 (1974)— and with a minimum of effort. As Chief Judge Bazelon aptly observed below, “having elected to receive public air waves, the scanner who stumbles onto an offensive program is in the same position as the unsuspecting passers-by in Cohen and Erznoznik [v. Jacksonville, 422 U. S. 205 (1975)]; he can avert his attention by changing channels or turning off the set.” 181 U. S. App. D. C. 132, 149, 556 F. 2d 9, 26 (1977).

In other words, for Brennan, there is nothing intrinsically different about radio. Unlike amplified sound–and like seeing a jacket with swear word on it–one can simply turn it off or turn away.

So–ignoring stare decisis–which approach do you find more persuasive? Is broadcast particularly invasive because it is transmitted into the home? Are children as a result particularly vulnerable? And what about the Internet, which while not a push medium like radio or TV, certainly enters the home?

Related articles

• An argument for the “Inviolability of Telegraphic Correspondence” (inpropriapersona.com)
• The slow pace of Fourth Amendment change (inpropriapersona.com)
• The Fourth Amendment: from property to people (inpropriapersona.com)

UC Irvine’s Office of Research Administration quickly summarizes the difference as follows: “Privacy is about people. Confidentiality is about data.” Now, what does that mean?

What is “confidentiality”?
Modern medical research is deeply concerned with both confidentiality and privacy, and federal regulations maintain the distinction between the two. Because of this contemporary concern, the Office of Research Administration at UC Irvine provides a good explanation of confidentiality vs. privacy in the medical context. According to the UCI ORA, confidentiality is focused on information and trust about someone, and deals with the “treatment of information that an individual has disclosed in a relationship of trust.”

The historical meaning is the same, according to Privacy’s Other Path: Recovering the Law of Confidentiality: “Confidentiality focuses on relationships; it involves trusting others to refrain from revealing personal information to unauthorized individuals.” Out of this has grown legal protections for maintaining and validating these important relationships. Such protections include the law of evidentiary privilege (attorney-client privilege, spousal privilege, etc.), fiduciary duty, trade secrets, and even the enforcement of contracts and non-compete agreements.

The law of confidentiality, although well grounded in common law and in statutory law, has found only limited support in the U.S. Constitution, specifically in the right against self-incrimination and the right to due process (both in the Fifth Amendment, then applied to the states via the Fourteenth Amendment) do connect, I think, with the law of confidentiality.

What is “privacy”?

“The right to be left alone–the most comprehensive of rights, and the right most valued by a free people.“
– Supreme Court Justice Louis Brandeis, Olmstead v. U.S., 277 U.S. 438 (1928)

Privacy, turning again to UCI and the contemporary context, is about people, and is about the “control over the extent, timing, and circumstances of sharing oneself (physically, behaviorally, or intellectually) with others.”

Historically, one can look to Samuel Warren and Louis Brandeis’ groundbreaking law review article on the right to privacy, where, in the words of Neil Richards and Daniel Solove, “the goal of privacy protections [was not seen as] enforcing the norms and moralities of relationships but as protecting an ‘inviolate personality’ and the feelings of the individual from injury.”

The right to privacy argued for by Warren and Brandeis’ 1890 law review article has grown into the Constitution since they originally articulated it, according to the Legal Information Institute at Cornell:

The right has developed into a liberty of personal autonomy protected by the 14th amendment. The 1st, 4th, and 5th Amendments also provide some protection of privacy, although in all cases the right is narrowly defined.

Additionally, statutory protections also exist at both the state and federal level:

The Constitutional right of privacy has developed alongside a statutory right of privacy which limits access to personal information. The Federal Trade Commission overwhelmingly enforces this statutory right of privacy, and the rise of privacy policies and privacy statements are evidence of its work.

Unlike the law of confidentiality, the right to privacy has developed deep support in Constitutional interpretation. The Fourth Amendment, prohibiting unreasonable searches and seizures, is the most obvious support, but additional privacy protections are found in the “penumbra” of the Constitution, including the First, Fifth, and Fourteenth Amendments.

I will explore some of the historical impact of this difference in future articles.

Related articles

• Law of privacy vs. confidentiality in the nineteenth century (inpropriapersona.com)
• What was the “right to privacy” in 1948? (inpropriapersona.com)