Privacy, publication, and the First Amendment: the dangers of First Amendment exceptionalism.

• Author: Epstein, Richard A.

INTRODUCTION: ANYTHING NEW IN CYBERSPACE?

Doctrinal analysis often requires us to reconcile traditional legal principle with modern technological innovation. Nowhere is this task of reconciliation more daunting than with cyberspace, where the speed and spread of information has been ratcheted up to levels that were unimaginable even a generation ago. And nowhere in cyberspace is it more important to tweak doctrine than on the general legal issue of privacy, which is here defined as the ability of individuals to keep private--that is, subject to limited distribution for specific persons--information about themselves that could prove harmful or embarrassing to them if made public or placed in the wrong hands. The speed, for example, with which medical records can be transmitted from one person to another has spawned a wide set of (misguided) federal guidelines on the use and dissemination of this information.(1)

That said, however, there is a second danger that is, if anything, greater than the first: endowing the new challenges in cyberspace with such novelty that it becomes too easy to forget that the underlying problems have been with us for a very long time.(2) Just as with the rise of the camera and the parabolic microphone, the law must resolve a permanent tension between two ideals, each of which seems to be unexceptional until placed in juxtaposition to the other. The first ideal of privacy carries with it all the positive connotations of allowing individuals to control information about themselves. The second ideal is full disclosure of that same information to allow others to

make full and informed decisions. Unfortunately, both ideals cannot be fully honored at the same time, and someone has to choose between them in many different contexts.

This clash of imperatives, moreover, long predates cyberspace: Individuals have always wanted to keep information about themselves private while finding out everything about others. Information is power, whether it is the information that you possess or that which you can deny to others. That said, the desires for privacy and disclosure cannot be satisfied for all people simultaneously. The challenge therefore is to examine the larger question in more specific contexts to determine the relative values of privacy and full disclosure.

The rise of cyberspace did not create this tension, but it does exacerbate it. A similar set of difficulties arose with the camera and the parabolic microphone.(3) Much the same may be said about mass publication, which got its first boost with the Gutenberg printing press. The ability to broadcast online has increased the scope of publication mightily, but it is far less clear that our contemporary problems have altered materially as we have moved beyond traditional print and broadcast media. One recent question of some import concerns the liability of Internet operators for defamatory messages posted on their systems by others. The Communications Decency Act(4) provides these web page operators with absolute immunity.(5) The obvious points here are, first, that the plaintiff's preferred defamation action should be directed against the party who posted the message, assuming that she can find him; next, that it becomes virtually impossible to ask the proprietor of the network to maintain a constant surveillance of the content posted on various sites by a wide range of subscribers, some of whom are certain to hold extreme, malevolent, or outlandish views. But that said, how different is the problem here from an attempt to hold a newspaper responsible for the content of personal advertisements, or a lending library responsible for the contents of the books it sends into circulation, or a broadcast station for the defamation of one of its guests?(6) In each case the question is whether the system of vicarious liability makes sense by pressing into service those individuals who have only an imperfect ability to identify the defamation and to contain the damage it causes, given that they may be in a better position to forestall the harm than the plaintiff.

The same set of conflicts arises with the issue that I wish to examine here, which is the extent to which a plaintiff can recover publication damages for truthful information that has been wrongfully obtained. In some cases the publication in question is made by the broadcast media. In other cases it is made over the web. In the former case, we are sure that the publication comes from the press. In the latter case, it is not clear whether that honorific designation should be given to anyone with access to a website--it is unmistakable that the line between media and nonmedia defendants will break down with the advent of desktop publication. But either way the legal issues raised require a close analysis of the interaction between common law and constitutional principles.

The key question is one of deceptive simplicity but enormous impact: May a private plaintiff recover damages from, or obtain an injunction against, a defendant that openly publishes truthful information about the plaintiff, when the defendant has wrongfully acquired that information? The recent cases that have addressed this question have primarily answered it in the negative, citing the First Amendment guarantee of freedom of speech and, with respect to the question of injunctive relief, its general prohibition against prior restraints of publication. I have worked somewhat extensively on this matter as a practicing lawyer, having been involved in both the Food Lion, Inc. v. Capital Cities/ABC, Inc. case,(7) where the broadcast was on PrimeTime Live, and the Ford Motor Co. v. Lane case,(8) where publication was on the web. I hope in this paper to navigate the shoals of common law and First Amendment law to explain why, in this context, the latter does not place any constraint on the orderly evolution of the former doctrine, either before or after the advent of cyberspace. On this problem, as with so many others, the advent of cyberspace may raise the stakes, but it hardly follows that it also changes the correct solutions.

To successfully examine this topic, it is necessary to understand the fundamentals of both the common law and First Amendment issues involved. It is also necessary to be aware of the risks that are imposed by what I call "First Amendment exceptionalism," that is, the belief that the First Amendment weights the scales above and beyond what a sensible theory of freedom of speech, understood as part of a general theory of freedom, would require. Viewed from an ideal perspective, common law and constitutional law ought to mesh so that the routine enforcement of common law obligations does not violate constitutional norms. After all, at its root, the common law remains a largely libertarian system that accords the freedom of speech, like the freedom of contract, presumptive validity so that a plaintiff must offer some good reason why speech should be restrained or sanctioned. It is not as though the two systems differ because they appeal at root to different philosophical principles. The difference comes in the way in which these principles are understood and applied.

Early on in our history, there was little tension between common law and constitutional principles. But with the rise of First Amendment jurisprudence, that tension started to emerge, and it reached fruition with the Supreme Court's decision in New York Times Co. v. Sullivan.(9) Today the conflicts between the treatment of speech at common law and under the First Amendment have become more explicit and acute, so that it is no longer safe to assume any close coincidence between them. Rather, we have a persistent constitutional dualism in which courts first adopt and then reject First Amendment exceptionalism as their interpretative guide.(10) The basic task, then, is to find some general theory to arbitrate which set of free speech principles should hold sway and why. In articulating that theory, it is of course necessary do more than repeat the truism that constitutional law stands at the top of the legal pecking order, while common law stands at its bottom, with legislation sandwiched somewhere in between. The point here is not that constitutional law rules, especially insofar as they relate to the articulation and defense of individual rights, bear a closer resemblance to common law rules than to the legislation that often supplants them; both are judge-made rules that necessarily lack the administrative backbone and dense texture that only legislation, whether for wise or for ill, can provide. Rather, the nub of the problem is that the two bodies of judge-made law start from different substantive visions about their common subject matter.

In order to approach the relationship between common law and constitutional law more systematically, Part I of this article explores the relationship between the torts of defamation and invasion of privacy, and explains the critical role that the issue of truth--itself a battlefield of contention--has played in developing the basic rules for publication damages in the two torts. Part II then seeks to explain what corrections, under the rubric of privilege, should be made to the laws governing defamation and invasion of privacy, both by insulating certain false statements from liability and by imposing liability for certain true statements. Part III then examines cases that allow anyone, including media defendants, to publish true information that has been wrongfully obtained. These cases include the following alternative arguments: The publication of this information should not count as a cognizable harm; or if the harm is cognizable, the publication is nonetheless justified; or if the publication is not justified, the publication is too remote from the original wrongful acquisition of the information. Part IV then looks at First Amendment exceptionalism in action, by examining the...