Trafficking in stolen information: a 'hierarchy of rights' approach to the private facts tort.

• Author: Elford, Joseph

The private facts tort is a mess. It has disappointed those who hoped it would enhance individual privacy while it has exceeded all estimations of its chilling effect on speech. Because the newsworthiness criterion of the tort requires courts to assess the social value of speech, judges and juries often disagree as to whether certain speech merits First Amendment protection. Reports of criminal activity are generally considered newsworthy, but sometimes they are not. Disclosures of a sexual nature are generally not considered newsworthy, but sometimes they are. The results vary within and across jurisdictions and depend primarily on the intuition of the particular judge or jury who controls the outcome of the case. This lack of principled adjudication leaves the publisher without clear guidance as to what it may publish or broadcast without fear of legal reprisal and deprives individuals of any settled expectation of privacy.

Unfortunately, recognizing these inconsistencies is like noticing a flat tire on a car with a rusted-out engine. When the courts reached an interpretive crossroads where they had to choose between the social view and a rights-based approach to the First Amendment, they took a wrong turn--they chose the social view. On this view, the primary purpose of speech is to further democratic values by fostering rich public debate; speech is an instrument to achieve the democratic purpose of creating a more informed citizenry.(1) Consequently, the courts devised the "newsworthiness criterion" of the private facts tort to gauge the speaker's First Amendment interest based on her contribution to public debate. If the contested speech is newsworthy," a court will invoke the First Amendment to protect the speaker. If the court decides that it is not, the speaker is denied First Amendment protection and must stand trial for her speech. The newsworthiness criterion thus represents a triumph for the social view of the First Amendment--and the mess that results from the current private facts tort reveals why this approach is flawed.

But there is another approach to the First Amendment. Unlike the utilitarian orientation of the social view, the rights-based approach to the First Amendment holds that the fundamental purpose of speech is self-expression, which enhances individual autonomy. In other words, the value of speech is intrinsic, not instrumental.(2) One manifestation of the rights-based theory is what I term the "hierarchy of rights" approach. Using this approach, a court would rank rights based on their relative importance to individuals and their propensity to cause individual harm. A higher-order right trumps every right below it. The scope of protected First Amendment activity is defined by determining whether there is a legally enforceable, higher-order right to trump speech.(3) By ranking rights, courts will never have to perform ad hoc valuations of an individual's speech. Consequently, dissident speakers will not be stymied by jury biases against their speech, and the mainstream media will not be in doubt as to whether, in the eyes of a court, their speech enhances public debate.

Under this approach, the right to speech ends where the right to privacy begins.(4) Privacy is ranked above speech for two reasons. First, unlike the benefits of speech, the benefits of privacy are purely individual; second, speech has a greater propensity than privacy to harm other individuals.(5) This legally enforceable right of privacy is defined by the conduct of the individual rather than the content of his speech because the rights-based approach demands that we focus on the individuals involved in the dispute, not social canons of decency. The court must restrict speech if, but only if, the speech was precipitated by a privacy violation such as physical invasion of privacy, breach of fiduciary duty, or breach of a duty of confidentiality. So, too, must it restrict the speech of the publisher who "trafficks" in this "stolen information." Such a method-focused approach to the private facts tort returns control over privacy and speech to the individuals who exercise these rights and limits liability to those instances where there is a specific and identifiable privacy violation.(6)

The four parts of this Note describe this shift and the reasons for it in greater detail. Part I describes the basic structure of the private facts tort and its newsworthiness criterion. Part II discusses the contradictory reasoning employed by the courts in their newsworthiness analyses and the inconsistent protection of speech and privacy that results. Part III examines the Supreme Court's response to this confusion, and finds that the Court has shied away from the content-sensitive newsworthiness analysis and has moved toward an approach emphasizing the method by which the information was obtained. Following the Supreme Court's lead, Part IV completes the shift away from the social view of the First Amendment and uses a hierarchy-of-rights approach to design a method-focused private facts tort that holds a publisher or broadcaster liable for disclosure of private facts if (1) it, or one of its sources, obtained information by improper means such as physical invasion of privacy, breach of fiduciary duty, or breach of a duty of confidentiality, and (2) the defendant had actual knowledge or reason to believe that the information was obtained improperly. This proposed tort obviates the need for a newsworthiness criterion, thereby restoring coherence and integrity to a tort on the verge of collapsing under the weight of the First Amendment.(7)

1. THE PRIVATE FACTS TORT AND ITS NEWSWORTHINESS CRITERION

   1. The Basic Structure of the Private Facts Tort

      Since its conception by Warren and Brandeis in The Right to Privacy' and its codification in the Restatement of Torts,(9) the private facts tort has become enmeshed in a complex and confusing body of law. Like defamation law, the private facts tort is a judge-made, state cause of action subject to federal constitutional limitations. As a result, it "resembles a creature fashioned by committee, or worse yet, one fashioned by several independent committees working in separate rooms in different eras with different blueprints--some building up and others chiseling down."(10)

      To state a cause of action for intentional disclosure of true private facts under current law, the plaintiff must show that the defendant (1) made public (2) private facts about the plaintiff that are (3) highly offensive to a reasonable person and (4) are not of legitimate concern to the public.(11) Courts usually concentrate on the first and fourth of these elements because they have been most affected by constitutionally mandated exceptions. The "public records" exception holds that a state may not hold a speaker liable for publishing true private facts obtained from public records,(12) and the "newsworthiness" exception confers on the press an absolute privilege to publish truthful information about matters of public interest that is lawfully obtained.(13) As a result, two distinct lines of private facts cases have emerged.(14) This Note focuses exclusively on the newsworthiness cases" to reveal more clearly the deep roots of the newsworthiness criterion in the social view of the First Amendment.

   2. The Newsworthiness Criterion and the Social View of the First Amendment

      The social view of the First Amendment focuses on the utility of the First Amendment for society at large. Its adherents claim that the First Amendment exists to protect democratic values.(16) Speech ought to be protected to promote rich public debate, leading to an informed citizenry capable of casting intelligent ballots.(17) Accordingly, the strength of a speaker's First Amendment interest is measured by the content of her speech--if the contested speech meaningfully contributes to public debate, courts will be more inclined to invoke the First Amendment to protect the speaker-defendant.(18) Under the social view, the benefits of speech are measured by content and are felt by the entire community.

      This view differs greatly from its leading competitor, the rights-based approach, which postulates that the primary purpose of the First Amendment is to protect the individual speaker from restriction of her speech by others. Free speech is necessary, not for the public's edification, but to foster self-actualization by permitting the individual to express her thoughts and beliefs.(19) The principal beneficiary of the First Amendment is the particular speaker, who is permitted to thrive as an individual.

      In choosing between these approaches, the Supreme Court and lower courts have embraced the social view of the First Amendment in their analyses of private facts cases, and the lower courts have designed a newsworthiness criterion to advance this goal. For instance, in Cox Broadcasting Corp. v. Cohn,(20) the Supreme Court displayed its allegiance to the social view when it declared:

      Without the information provided by the press most of us and many

      of our representatives would be unable to vote intelligently or to

      register opinions on the administration of government generally. . . .

      . . . .

      . . . The freedom of the press to publish . . . appears to us to be

      of critical importance to our type of government in which the

      citizenry is the final judge of the proper conduct of public business.(21)

      The Court later affirmed its commitment to the social view in Smith v. Daily Mail Publishing Co.,(22) when it proclaimed: "Historically, we have viewed freedom of speech and of the press as indispensable to a free society and its government."(23) Thus, at the level of First Amendment theory, if not in its actual practice,(24) the Supreme Court has championed the social view in its private facts decisions.(25)

      And the lower courts have even more wholeheartedly embraced the social view in their analyses of the private facts tort. At the theoretical level, for...