Thinking about privacy and the First Amendment

By Kristopher A. Nelson
in October 2011

1100 words / 5 min.
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This post is about Eugene Volokh’s article on free speech and privacy 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?

Please note that this post is from 2011. Evaluate with care and in light of later events.

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, a classic example). 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.