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.

For this reason, Bracton’s thirteenth-century treatise On the Laws and Customs of England “reflected the canonist [i.e., the civil law] rule … that ‘one must judge not by examples but by reasons’” (see “The Transformation of English Legal Science” by Harold Berman and Charles Reid, Jr., ):

Cases, that is, judicial decisions, could be used to illustrate legal principles, but were not themselves an authoritative source of law. … If a judge did not approve of a previous decisions, or even of a previous custom of the court, he might say it was wrong and disregard it. (445)

In the seventeenth century, this began to change. Edward Coke began some of the first modern compendiums of judicial decisions, connecting the reasoning for new cases to the authority granted by previous decisions. But this was still not binding precedent, and Coke “would reach out for anything said by a judge in an earlier case if it seemed to him to reflect a true legal principle” (447). In other words, Coke made precedent more authoritative, but the ultimate search was still for universal principles. 

The eighteenth century jurist Matthew Hale saw prior decisions as evidence of the true principle or rule (448). But judicial decisions themselves “did not make a Law properly so-called, (for that only the King and Parliament can do)” (448). In other words, judges “do not ‘make’ laws, but ‘find’ them in the received legal tradition, and ‘declare’ them” (448). Modern judicial precedent–strict stare decisis, requiring lower courts to follow previous decisions (but not dictum)–did not emerge until the nineteenth century. Before this, it was a “line of cases” that mattered, not a particular holding. Judicial custom matters because it involves multiple decisions over time. Thus, in 1762, Lord Mansfield still maintained that “[t]he reason and spirit of cases make law; not the letter of particular precedents” (449).

Berman and Reid summarize the development of precedent as follows:

1. common lawyers had always discussed cases and opinions, and did not simply look to written statutes;
2. but prior to the sixteenth century, they had “no doctrine of precedent,” and only in the seventeenth century developed a version of persuasive authority largely confined to procedure and custom;
3. Coke and others challenged the King by using pre-Tudor precedents, and thus brought precedent forward as an important part of common-law decisions;
4. but common-law courts avoided binding precedent still, and looked to prior decisions to extract the principles of judicial custom, but began to apply precedent to both procedural and substantive matters;
5. at the end of the seventeenth century, common-law courts continued to develop doctrines involving precedent, especially distinguishing dicta from holdings to extract principles that could apply to the past and the future: “the principle of precedent was a dynamic and not a static one” (450).

Berman and Reid further tie the development of precedent to scientific and empirical developments of the Enlightenment as well. Even as Robert Boyle and Isaac Newtown emphasized reason and evidence in their scientific pursuits, so too did English jurists seek the “professional verification and acceptance of empirical observation” (450). Thus, repeated applications of similar approaches became good empirical evidence for the validity of a rule, “just as the repeated confirmation of the results of scientific experiments by physicists and chemists was treated as proof of the probable truth of their findings” (451).

Daniel J. Solove

We should conceptualize privacy by focusing on the specific types of disruption and the specific activities disrupted rather than looking for the common denominator that links all of them. … Instead of construction an understanding of privacy from the top down by first seeking to elucidate an overarching conception of privacy, we should develop our understanding from a bottom-up examination of the problems based on analogical reasoning. (76)

He takes a common-law jurist’s approach to analyzing a problem, one enshrined in the legal requirement that American courts must deal above all with specific “cases and controversies,” not general theories or philosophical ideas. From the specific facts and harms one can then reason by way of analogy to larger concepts, deriving rules that can be applied to current and future situations. In short, his is a classic American approach to legal reasoning. But it’s classic for a reason: it works.

The Six

To facilitate his analysis, Solove likes to use “classifications” and “taxonomies.” He thus begins by dividing privacy into six types (which he notes “often overlap”). These six are not so much normative or suggested analytic categories as they are ones commonly used in privacy analysis:

1. the right to be let alone–Samuel Warren and Louis Brandeis’ famous formulation of the right to privacy;
2. limited access to the self–the ability to shield oneself from unwanted access by others;
3. secrecy–the concealment of certain matters from others;
4. control over personal information–the ability to exercise control over information about oneself;
5. personhood–the protection of one’s personality, individuality, and dignity; and
6. intimacy–control over, or limited access to, one’s intimate relationships or aspects of life. (13)

1. The Right to Be Let Alone

This deeply influential category comes from Samuel Warren and Louis Brandeis’ 1890 law review article, “The Right to Privacy,” and “views privacy as a type of immunity or seclusion” (18). Warren and Brandeis were responding to the growth of an increasingly invasive and fast-moving press by seeking to demonstrate how traditional common-law torts could be rationally extended to cover this new situation, without introducing any radically new concepts.

Though it seems to emphasize noninterference, it actually often consists “of a claim for state interference in the form of legal protection against other individuals” (18). In many respects, especially as articulated to deal with the situation of invasive journalism, it runs into potential First Amendment conflicts that require, at the very least, balancing.

2. Limited Access to the Self

The point of this view of privacy–closely related to the previous–is to allow “every man to keep his affairs to himself” and “recognizes the individual’s desire for concealment and for being apart from others,” but it “is not equivalent to solitude [nor] of withdrawal from other individuals” (18). Conceptually, one flaw with this view is that it provides little guidance “as to the degree of access necessary to constitute a privacy violation” (20). It also does not clearly indicate who decides: is it about me deciding what access others have to my self? Or is there a sort of absolute or universal standard that can be brought into play?

3. Secrecy

Judge Richard Posner called this “concealment of information,” or the “right [of an individual] to conceal discreditable facts about himself” (21). Solove describes secrecy “as a subset of limited access to the self,” but in only one dimension: “the concealment of personal facts” (22). According to Solove, this conception “underpins the constitutional right to information privacy, an offshoot of … cases such as Griswold v. Connecticut and Roe v. Wade” (22). It is also the aspect of privacy I identify most firmly with a clear constitutional right: the Fourth Amendment right to be free from “unreasonable searches and seizures.”

Legally, a privacy-as-secrecy approach often means that once a fact leaks, “it can no longer remain private” (22). Thus, Fourth Amendment jurisprudence “holds that matters that lack complete secrecy are not private” (22). This, garbage receives no protection because it is “knowingly exposed to the public” since it is “readily accessible” (22). Surveillance from aircraft does not implicate the Fourth Amendment either, since “the surveillance was conducted from a public vantage point” (22).

But such characterizations of privacy as secrecy misses out on a desire for confidentiality: “sharing the information with a select group of trusted people” (23). Protecting confidentiality–which I, picking up on Solove’s work, identify as a 19th-century concern–is a critical form of privacy for many people, especially in the medical context. Thus, understanding privacy as secrecy alone is too restrictive and too limited.

4. Control over Personal Information

According to Solove, a Clinton-era task force on privacy defined it as follows:

an individual’s claim to control the terms under which personal information–information identifiable to the individual–is acquired, disclosed, and used (24).

This is also the conception that healthcare laws related to privacy (like HIPPA) use. But again, this conception is overly narrow, since excludes non-informational aspects of privacy, “such as the right to make certain fundamental decisions about one’s body, reproduction, or rearing of one’s children” (25). It also generally fails to define what “control” means, and usually fails to effectively define the scope of what is protected (25–26).

Another, related approach to control over personal information makes information into property. This Lockean approach is “the backbone of intellectual-property law,” which itself derives much of its justification from the “romantic-author” notion of individual authorial (or inventive) creation: “one gains a property right in something when it emanates from one’s self” (26). The tort of appropriation, and the connected right of publicity, “protects people against others’ using their image or likeness for commercial gain.

But this conception also has problems, too. Personal information “is both an expression of the self and a set of facts–a historical record of one’s behavior” (27). Denying journalists the right to present those facts implicates the First Amendment, among other issues. Thus, truth is a defense to defamation, which itself is tort related to privacy.

Additionally, personal information is often formed through relationships (see confidentiality, above, too), and not by a single individual’s “self.” Thus, one person recounting their own story may implicate the story of someone else–should they then be restricted from doing so because it infringes on the other person’s privacy?

5. Personhood

The conception here is to protect “the integrity of personality,” and “often is used in conjunction” with other theories (30). Solove describes this as the theory underlying Griswold v. Connecticut, Eisenstadt v. Baird, and Roe v. Wade. It involves “choices central to personal dignity and autonomy” (31). I tend to agree with those that identify this right as more connected to liberty and autonomy than to privacy, but others (like Judith DeCew) suggest that there is an “intuitive notion of privacy invoked in the constitutional privacy cases” (31). In any case, I find “personhood” to be too vague to be useful, and I also find that thinking of it in terms of autonomy is more revealing than conceptualizing it as privacy.

6. Intimacy

This perspective connects privacy with personal human relationships as well as “individual self-creation” (34). It can be difficult to define exactly what is “intimate,” except in terms of what “individuals want to reveal only to a few other people” or similar “in-practice” definitions (35). It does help to unify certain conceptions of privacy with autonomy, though: “abortion is a private decisions because it is ‘an intimate one’” (36).

But again, this definitions tends to be too broad in scope. It is in many respects not much more useful than the term “privacy” itself (36). At the same time, it is overly limiting as a general theory because it is overly focused on interpersonal relationships alone.

So Now What?

Solove contends that the above theoretical conceptions “fail on their own terms” and “never achieve the goal of finding the common denominator” (38). So what should we do, then? His proposal is to dispense with “top-down” philosophy and to instead focus on the problems we face in four dimensions: method, generality, variability, and focus.

His method is pluralistic and draws on Ludwig Wittgenstein’s family resemblances: “privacy is not one thing, but a cluster of many distinct yet related things,” Solove writes (40). By generality, he means that he will pick a useful level of generality, one that is contextual and practical, not abstractly philosophical (40–41). He also acknowledges the variability of privacy and its historical and cultural contingency. He does not seek to provide a firmly fixed foundation for privacy, but does feel “it can still have sufficient stability while accommodating variability” (41). Finally, he limits his focus on privacy to privacy problems. Again, he seeks to avoid the abstract and philosophical and to stay with the particular and specific (41).

Solove’s approach may not appeal to philosophers, but it has the advantage (and, perhaps, disadvantage) of being practical for lawyers and judges to deal with. I approve of his practical goals, and I think the methods he uses can be usefully extended to historical cases as well as contemporary ones.

Image by cloois via Flickr

In my 1996 paper, “But that Speaking Makes it So”: The Role of Narrative in the Formation of Community, I wrote:

The creation of a narrative–the telling of a story–is a means of smoothing out the rough edges of existence, a means of transforming raw experience into the webs of significance which constitute culture. Indeed, narrative is such a basic component of culture, of humanity, that we never actually have access to “raw experience.” Nothing exists for us “but that speaking makes it so,” and it is this speaking which provides the coherent meaning in our lives, rather than leaving them a series of discontinuous, unrelated events.

I was speaking from a literary-critical point of view, but Michael S. Gazzaniga’s brain research suggests that this is actually how the brain deals with the world:

Gazzaniga suggests that one of the modules in the human brain should go under the name of the “Interpreter.” This system–located in the left hemisphere, along with the speech center–is what concocts a coherent narrative out of all the brain’s activity, and the annals of neuroscience are now full of bizarre neurological conditions and deft experiments that reveal this constant creative act at work. Of great importance to Gazzaniga’s argument are some oft-cited experiments purportedly demonstrating that conscious awareness of making a decision registers only after the brain has primed itself for that course of action, and sometimes even after the action has been performed. Gazzaniga calls this living in “a post-hoc world.” … According to Gazzaniga, the stories the Interpreter tells tend to be bravely forward-looking, all about steering the ship of fate into uncertain waters, equipped with free will and unity of purpose; but these parables of moral courage are no more than specious retrospective rationalizations for things we do automatically.

via Cathy Gere’s review in Atmospheric Disturbances: On Michael Gazzaniga | The Nation.

According to Gere, for Gazzaniga these “specious retrospective rationalizations” suggest a dis-unified consciousness that then calls into question the entire concept of free will: “If our brains act according to the causal laws governing all matter, in what sense can we be said to be free?” In legal terms, Gazzaniga suggests that this finding potentially undermines the criminal requirement of mens rea (the “guilty mind” element of most crimes): if our actions are in many situations automatic, and our explanations of them–our decision-making moral sense, as it were–only post-hoc, then “‘My brain made me do it’ threatens to become a get-out-of-jail-free card available to everyone, not just to sufferers of fetal alcohol syndrome or schizophrenia.”

Gere contests this conclusion by arguing that there is a difference between automatic reflexes–“primed by millenniums of natural selection”–and rational, deliberate consideration done before an act. She discusses the legal concept of “diminished responsibility”: the idea that, for example, children have a less-developed sense of moral thinking, and thus should not be held as responsible for their actions as an adult. Insanity–a complex area of interaction between medicine and law–is another site where the law recognizes that some people–but certainly not all people–lack the ability to properly consider their actions. (Although neither seems to mention it, this is pretty much the difference between murder “with malice aforethought” and manslaughter in American common law.)

Gazzaniga gestures at one standard of legal insanity–the “policeman at the elbow” test–but Gere says all he does is “wag an admonishing finger” at the notion. Gere suggests that Gazzaniga’s absolute standard is that one either has reason or not, and that one is thus either responsible or not for one’s actions. She argues that reality–and the law–is more complex in its evaluations that this, and that Gazzaniga fails to acknowledge this complexity.

In criticizing Gazzaniga’s overly simplistic, and overly worried, notions about what his findings do for the idea of responsibility, Gere writes that “the concept [of responsibility] has been refined by witnesses, judges and juries ever since naturalistic accounts of mental illness began to gain traction, and it seems fairly robust as an intuition about justice.”

Although I would agree with Gere in many respects, I am not convinced that the (American, at least) legal system has really developed a “fairly robust” (in the sense of having a common, stable agreement on the matter) sense of how responsibility should function. There are numerous definitions of “insanity” in various states, and the standards have gone back and forth as first doctors suggest grounds for diminished responsibility, and then the public reacts against a sense that criminals are “getting off too easily” by virtue of an insanity defense, and push for tightening the rules.

Image via Wikipedia

Jared Lee Loughner, for example, the accused shooter of numerous people in Arizona (including U.S. Representative Gabrielle Gifford), was declared “unfit to stand trial” in federal court due to schizophrenia. Under federal law (revised due to popular anger after John Hinckley, the man who tried to assassinate President Ronald Reagan, was found not guilty by reason of insanity in 1982), this does not mean he is somehow not guilty. He can be forced to take medication until he is deemed “fit,” and can then be tried. Arizona state law is different: in Arizona, even if Loughner is found to have been completely insane at the time of the killings (and therefore “not responsible” in at least some sense), he would first be committed to a mental institution if convicted, then transferred to prison if he recovers his sanity. There is no such thing in Arizona as “not guilty by reason of insanity” anymore.

In the end, although I do not share Gazzaniga’s worry about the likelihood that his findings will result in reducing criminal liability, I am not convinced by Gere’s argument that the law has already established a more “robust” approach to the question. For me, the question of diminished responsibility, especially as a consequence of mental illness, is still a contested area of the law that is neither settled nor necessarily just.

But despite this quibble, I do agree with Gere that there is more risk that the legal rules that establish diminished responsibility  are being eroded than is the fundamental concept of individual responsibility itself: “the concept of diminished responsibility is almost as much a pillar of the Anglo-American legal system as responsibility itself, and its actual erosion–as in the tabloid-stoked trend in Britain of trying minors as adults–is at least as troubling as its still-theoretical extension to all of us.”

For me, at least, just because we construct a post-hoc narrative about an action does not mean we cannot still be responsible for that action, nor do I think there’s a real risk that the legal system will disagree.

“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.)

Copyright law is often approached in terms of debates over competing interpretations of the law: should copyright be used to protect the author’s freedom, or to encourage the public distribution of culture and information, or to turn intellectual products into marketplace commodities, or to serve the interests of corporate publishers and distributors?

He then explains that, at least in the Western–and perhaps especially in the American–tradition, “copyright is the enactment of the dream that the disparate goals and values of individual creative freedom, commerce, and informational dissemination can be reconciled in law.”

In the United States, copyright has always served a functional purpose:

To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries  (Article I, Section 8, Clause 8 of the United States Constitution).

Drawing on this, Streeter writes that:

From the beginning, therefore, copyright was understood more in functional than in formal or moral terms; the emphasis was more on copyright’s role in encouraging the distribution of culture and information than on its inherent justice.

American law depends on conceptual distinctions, particularly originality and the distinction between an idea and its expression, that are derived from the romantic image of authorship as an act of original creation whose uniqueness springs from and is defined in terms of the irreducible individuality of the writer.

But, Streeter points out, modern broadcast mediums–especially television, but also music, movies, and more–do not have individual “authors,” and yet our legal approaches to copyright still assume some notion of an individual author or creator.

One way the law has handled this is through the fictional “corporate person” who now owns copyrights and substitutes for individual creative humans. These large bureaucratic institutions now “create” most modern works, but still argue that consumers have a moral right to compensate them for their creation in a way that tends to invoke romantic authorship–and breaks down when the “creator” is a large multinational corporation.

Corporations have responded to create bureaucratic enforcement mechanisms, so-called “copyright collectives,” such as ASCAP and BMI. These groups create licensing arrangements that only roughly correspond to “actual” use or “actual” creators (and often strike me as rather reminiscent of a protection racket…).

New technologies that have emerged after Streeter’s book hold the potential for revolutionizing this relationship, although Amazon, Netflix, Hulu, Spotify, et. al. fundamentally do nothing about the problem of corporate content creation. They do, however, re-enable the possibility of individual creators (if such a thing really exists…) to escape the old bureaucratic confines and to more directly connect with consumers via mediators that can reduce the communications and collections overhead.

So is this really a revolution? Perhaps–but as I said, it does nothing about the major point of Streeter that much of today’s media has no individual creator at all. In such a case, these new technologies merely permit more efficient collection, cutting back on the number of “middlemen,” but don’t otherwise revolutionize anything at all.

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)