HomeUploadUpload DirectHotlinkRandomAbouttheme toggle
Expand

The First Amendment and Privacy: Free Speech Rules (Episode 9)

Views:980
@ReasonVids

When can the law stop you from saying things about me, in order to protect my privacy? Pretty rarely, it turns out.

Here are the five rules of Free Speech and privacy.

Actually, before we get to the rules, let’s just make clear what kind of “privacy” we’re talking about.

The Supreme Court has sometimes discussed a “right to privacy”—but that’s generally a right to personal autonomy, for instance the right to buy and use contraceptives. We’re not talking about that right here.

We also often have a right to physical privacy in the sense of freedom from trespass or surveillance. The Fourth Amendment, for example, protects us against “unreasonable searches and seizures” by the government. The law of trespass protects us against physical intrusions by our neighbors.

The tort of “intrusion upon seclusion” protects us from other kinds of surveillance, such as people photographing into our bedrooms using high-powered magnifying lenses, or people telephoning us repeatedly in the middle of the night. We’re not talking about that here, either.

Rather, we’re talking about “informational privacy”: restrictions on your communicating information about me when I think that information is highly private.

Now, on to the rules:

Rule 1. We usually have a right to speak about other people, not just about ideas. We can express opinions about them, even if those opinions are insulting. We can say true things about them, even when they’d rather keep that information private.

Newspapers and TV programs are chock full of such speech about people, many of whom would rather not be spoken about. The same is true of biographies. Even autobiographies usually reveal information not just about the writer, but about his family, friends, lovers, business associates, and more.

Rule 2. We have a nearly absolute right to reproduce information drawn from government records. Newspapers can quote arrest reports, or documents from court cases, even when they describe the private details of the defendant’s life—or of a victim’s life. For instance, in 1989 the Supreme Court struck down a statute that forbade the media from publishing the names of sex offense victims. Such a statute, the Court held, wrongly limited the right to publish information drawn from government records, such as arrest reports.

And this right doesn’t vanish with time: There can be no European-style “right to be forgotten” under American law, at least when it comes to material taken from government records.

Rule 3. Our free speech rights extend to speech about private figures, and not just about government officials or famous people. Indeed, newspaper stories often disclose information about ordinary people who have never sought publicity.

Rule 4. Lower courts have allowed some civil lawsuits for so-called “public disclosure of private facts.” The Supreme Court has never decided whether this tort is constitutionally valid.

But even if the tort can be constitutional, courts agree that it’s sharply limited.

First, it only applies to revelations of highly embarrassing or personal information, such as sexual history or medical conditions.

Second, it’s limited to statements that aren’t “newsworthy.” That’s a vague line, but courts have read the newsworthiness defense quite broadly: So long as the facts are linked to newsworthy events, such as a crime, people are free to repeat them.

Third, as Rule 2 notes, material borrowed from government records—again, such as trial transcripts or arrest reports—can pretty much always be published.

Rule 5. The strongest protection for privacy is generally contract. If a business, for instance, promises not to disclose information about its customers, that promise can be enforced in court. Same if, for instance, someone who is working for a celebrity signs a nondisclosure agreement as a condition of employment.

Such contracts aren’t always enforceable; for instance, if a court orders you to disclose information about a customer, you can’t just insist that you had promised the customer to keep it secret. Likewise, a federal statute bars businesses from requiring consumers to sign “non-disparagement” clauses, in which the consumer promises not to publish critical reviews of the business.

But if a contract not to speak is otherwise enforceable, the First Amendment doesn’t prevent its enforcement. And that extends to promises of privacy as well as to other nondisclosure agreements.

--
Written by Eugene Volokh, a First Amendment law professor at UCLA.
Produced and edited by Austin Bragg.
Additional graphics by Joshua Swain.

This is the ninth episode of Free Speech Rules, a series on free speech and the law. Volokh is the co-founder of The Volokh Conspiracy, hosted at Reason.com.

This is not legal advice.
If this were legal advice, it would be followed by a bill.
Please use responsibly.

Music: "Lobby Time," by Kevin MacLeod (Incompetech.com) Licensed under Creative Commons: By Attribution 3.0 creativecommons.org/licenses/by/3.0/

libertarian
,
reason magazine
,
reason.com
,
reason.tv
,
reasontv
    Thumbnail for California Killed 1.2 Million Birds To Stop a Virus. Pet Owners Say They Were Terrorized.12:59
    California Killed 1.2 Million Birds To Stop a Virus. Pet Owners Say They Were Terrorized.
    ReasonVids
    937 views
    Thumbnail for At least 130,000 ballots arrived in 3 vehicles in Detroit, MI  ALL for Biden part 22:20
    At least 130,000 ballots arrived in 3 vehicles in Detroit, MI ALL for Biden part 2
    bestofvoat
    1691 views
    Thumbnail for Eva 405:24
    Eva 40
    Kionite
    691 views
    Thumbnail for Why the U.S. Is the Next Greece: Doug Casey on America's Economic Problems5:58
    Why the U.S. Is the Next Greece: Doug Casey on America's Economic Problems
    ReasonVids
    719 views
    Thumbnail for Advocate for a White USA on Shared Values with Israel3:15
    Advocate for a White USA on Shared Values with Israel
    AmericanRenaissance
    1316 views
    Thumbnail for Feminists Debate Sex Work: The Soho Forum1:19:20
    Feminists Debate Sex Work: The Soho Forum
    ReasonVids
    808 views
    Thumbnail for Groid gets btfo by his own computer1:21
    Groid gets btfo by his own computer
    bestofupgoat
    418 views
    Thumbnail for Mayor of a Hungarian town demonstrates how to deal with gypsies1:23
    Mayor of a Hungarian town demonstrates how to deal with gypsies
    AOUisgay
    496 views
    Thumbnail for Juden Peterstein brought to you by Flood3:06
    Juden Peterstein brought to you by Flood
    bestofvoatxyz
    540 views
    Thumbnail for Why Government Funding Hurts PBS & NPR4:21
    Why Government Funding Hurts PBS & NPR
    ReasonVids
    990 views
    Thumbnail for cat reflexes2:13
    cat reflexes
    bestofupgoat
    446 views
    Thumbnail for Oklahoma Doctors vs. Obamacare6:42
    Oklahoma Doctors vs. Obamacare
    ReasonVids
    975 views
    Thumbnail for Are the COVID-19 Lockdowns Constitutional?7:12
    Are the COVID-19 Lockdowns Constitutional?
    ReasonVids
    981 views
    Thumbnail for Conspirajeet gets confronted by based woman 1:23
    Conspirajeet gets confronted by based woman
    bestofupgoat
    200 views
    Thumbnail for Another Troubled City, Another Subsidized Stadium to the Rescue9:41
    Another Troubled City, Another Subsidized Stadium to the Rescue
    ReasonVids
    848 views
    Thumbnail for Run boy run0:47
    Run boy run
    AOUisgay
    482 views
    Thumbnail for 【特別ゲストあり】超難問を突破せよ。特別番組 いれいすクイズミリオネア【いれいすファンミーティング】 | いれいす【公式】1:53:09
    【特別ゲストあり】超難問を突破せよ。特別番組 いれいすクイズミリオネア【いれいすファンミーティング】 | いれいす【公式】
    invidious
    89 views
    Thumbnail for The Case For Back-Room Deals, Party Hacks & Unlimited Money in Politics17:54
    The Case For Back-Room Deals, Party Hacks & Unlimited Money in Politics
    ReasonVids
    1000 views
    Thumbnail for TRY ON HAUL MY FAVORITE SWIMSUITS | Nastasya Lebedeva7:14
    TRY ON HAUL MY FAVORITE SWIMSUITS | Nastasya Lebedeva
    invidious
    409 views
    Thumbnail for Immigration March at the DNC2:53
    Immigration March at the DNC
    ReasonVids
    797 views
    Thumbnail for How COVID-19 Is Spreading School Choice3:48
    How COVID-19 Is Spreading School Choice
    ReasonVids
    989 views
    Thumbnail for Morticians Association of America Endorses President Obama's Tough New Fuel Efficiency Standards1:14
    Morticians Association of America Endorses President Obama's Tough New Fuel Efficiency Standards
    ReasonVids
    984 views
    Thumbnail for Don't Expect Unions To Make a Comeback4:26
    Don't Expect Unions To Make a Comeback
    ReasonVids
    973 views
    Thumbnail for Why is Teaching a Crime? California Denies Blue-Collar Workers Entry to Trade Schools4:12
    Why is Teaching a Crime? California Denies Blue-Collar Workers Entry to Trade Schools
    IJvids
    925 views
    Thumbnail for Faster than Rust and C++: the PERFECT hash table | strager33:52
    Faster than Rust and C++: the PERFECT hash table | strager
    invidious
    345 views

points

Permalink
Reply
libertarian
,
reason magazine
,
reason.com
,
reason.tv
,
reasontv
TOS  •  Add Keywords  •  Donate  •   Analytics  •   DMCA  •   Puzzle