Privacy in the First Amendment

protection of the First Amendment. In all suits for public disclosure of private information, publishers may well enjoy a complete defense of privilege under the First Amendment. If this is true, then there can be no constitutionally acceptable remedy for the injury caused by publishing private, true facts, and the public disclosure tort is unconstitutional on its face-an inference some legal scholars have already drawn.7 However, the analytical premises of the Court do not lead necessarily to that conclusion. Using the same premises, a First Amendment interest can be shown in preserving the public disclosure tort remedy, based on a First Amendment interest in the particular form of privacy which the tort protects.

I

The starting point for constitutional arguments both for and against the public disclosure tort is a theory of the First Amendment which the Supreme Court has articulated over the last decade. Beginning with New York Times Co. v. Sullivan in 1964, the Court in applying the free speech guarantee has stressed the integral role of free speech in. a democratic political system, and has uncovered a First Amendment interest in protecting a "system of freedom of expression." In deciding the constitutionality of an individual utterance, therefore, the Court has taken into account not only the merits of the specific utterance but also its place in a constitutional system of speech. The Court's theory rests on the premise that free speech provides citizens with that "access to social, political, esthetic, moral and other ideas and experiences"1o which citizens require in order to perform "[s]elf-governance."

6. See p. 1468 & notes 27-31 infra.

"11

7. See Marc Franklin, A Constitutional Problem in Privacy Protection: Legal Inhi bitions on Reporting of Fact, 16 STAN. L. REV. 107 (1964). Others who have recognized the potential unconstitutionality of a public disclosure tort include T. EMERSON, THE SYSTEM OF FREEDOM OF EXPRESSION 517 (1970); Kalven, Privacy in Tort Law-Were Warren and Brandeis Wrong?, 31 LAW & CONTEMP. Prob. 326, 336 (1966). See also Kapellas v. Kofman, 1 Cal. 3d 20, 35, 459 P.2d 912, 922, 81 Cal. Rptr. 360, 370 (1969). 8. 376 U.S. 254 (1964).

9. The phrase is the title of Professor Thomas Emerson's study of the Supreme Court's treatment of the First Amendment, T. EMERSON, supra note 7. Emerson posits that "[t]he root purpose of the First Amendment is to assure an effective system of freedom of expression in a democratic society." Id. at 17.

The Court itself has said that "[a] broadly defined freedom of the press assures the maintenance of our political system and an open society." Time, Inc. v. Hill, 385 U.S. 374, 389 (1967), and it has observed "a profound national commitment to the principle that debate on public issues should be uninhibited New York Times Co. v.

Sullivan, 376 U.S. 254, 270 (1964). Justice Black has called First Amendment guarantees "the heart of the system on which our freedom depends." American Communications Ass'n v. Douds, 339 Ú.S. 382, 453 (1950) (dissenting opinion).

10. Red Lion Broadcasting Co. v. F.C.C., 395 U.S. 367, 390 (1969). 11. Rosenbloom v. Metromedia, 403 U.S. 29, 41 (1971).

37-583 74 pt. 2 - 4

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As Mr. Justice Brennan has acknowledged, the Court has developed its self-governance rationale for protecting an integrated system of First Amendment freedoms in light of the work of the late Alexander Meiklejohn.12 In Meiklejohn's classic formulation,

The First Amendment does not protect a "freedom to speak.” It protects the freedom of those activities of thought and communication by which we "govern." It is concerned, not with a private right, but with a public power, a governmental responsibility.13

In other words, free speech is protected not for some intrinsic value of speech but because it is a necessary condition for the making of informed decisions about matters of government, decisions which all citizens in a democracy are called on to make. Speech provides information, the raw material from which citizens can make self-governing choices.

14

Although the Court has never set out the elements of the free expression system, its operation would seem to require two separate stages. Transmission of information from speaker to listener is only the first; the second is the application of that information-in the mind of the person who receives it-to the individual decisions of self-governance.1 Both stages of the process are needed to achieve what, in the Court's view, the Constitution envisions: free individual choice by each citizen. Yet the Court, in applying its concept of a free expression system, has concerned itself almost solely with the first stage of that system— the process of communicating information from speaker to listener. In

12. Brennan, The Supreme Court and the Meiklejohn Interpretation of the First Amendment, 79 HARV. L. REV. 1 (1965). Justice Black cites Meiklejohn in his concurrence in New York Times Co. v. Sullivan, 376 U.S. 254, 297 n.6 (1964).

13. Meiklejohn, The First Amendment Is An Absolute, 1961 SUP. Ct. Rev. 245, 255. Professor Emerson believes that a free expression system also serves the goals of individual self-fulfillment and the discovery of truth, independent of their relationship to governing process. T. EMERSON, supra note 7, at 6-7.

14. Although the Court has not hitherto viewed its system as involving two operative stages, Justice Douglas appeared to recognize an analogous division of First Amendment operation in his dissent in United States v. Caldwell, one of the three cases consolidated in Branzburg v. Hayes, 408 U.S. 665 (1972). After quoting from Meiklejohn, he argued: Two principles which follow from this understanding of the First Amendment are at stake here. One is that the people, the ultimate governors, must have absolute freedom of, and therefore privacy of, their individual opinions and beliefs regardless of how suspect or strange they may appear to others. Ancillary to that principle is the conclusion that an individual must also have absolute privacy over whatever information he may generate in the course of testing his opinions and beliefs . . The second principle is that effective self-government cannot succeed unless the people are immersed in a steady, robust, unimpeded, and uncensored flow of opinion and reporting which are continuously subjected to critique, rebuttal, and reexamination.

Id. at 714-15. Douglas' first principle is analogous to the second stage proposed here, and his second principle is analogous to the first stage.

Privacy in the First Amendment

the context of that first stage, the Court has recognized that participation of individuals in a free expression system can be inhibited, or chilled, in a variety of ways and that the result is to diminish the selfgoverning rights of at least those individuals.15 It has therefore acted in the name of the First Amendment to forestall those potential inhibitory effects. But at the same time the Court has taken for granted the freedom from potential inhibition of the second stage-the listener's decision-making in light of received information-which begins after the communication between speaker and listener is complete. The Court's assumption seems to be that speech need only reach the listener's ear for the free expression system of democracy to operate successfully.16

Lamont v. Postmaster General1 illustrates the distinction between inhibitions of the first stage and inhibitions of the second, and the Court's unwillingness to perceive the latter. In Lamont, the Court struck down a Post Office requirement that addressees of "Communist propaganda" had to request the "propaganda" in writing before it would be delivered. The Court's opinion focused on the hindrance to free speech which the written request represented: the hindrance to the successful act of communication between the person who mailed the "propaganda" and the intended recipient.18 No mention was made of the effect on the addressees of knowing that the Post Office had identified them as recipients of subversive mail.19 Knowing that they had been so identified, they might be inhibited from making a later self-governing choice, such as the choice to vote for a Communist political candidate. Under the Lamont facts, that chilling effect (an inhibition of the free expression system's second stage) seems a more likely and more worrisome possibility than the possibility that a written request requirement might impede the flow of speech (a first-stage inhibition). Yet the decision turns on the first-stage inhibition alone.

15. See, e.g., Lamont v. Postmaster General, 381 U.S. 301, 307 (1965). See also note 26 infra.

16. The Court has often used the phrase "the right to receive information and ideas," see, e.g., Kleindienst v. Mandel, 408 U.S. 753, 762-64 (1972); Stanley v. Georgia, 394 U.S. 557, 563 (1969). But it has invoked the right only to protect the act of communication between speaker and listener; the phrase has never been used to indicate any hearer's right to First Amendment protection in his subsequent decision-making. The "right to receive" appears to apply only to the same circumstances as the right to speak; the Court seems to use it as a substitute for the "right to speak" in cases where its sympathies do not lie with the speaker. In Mandel, for example, the speaker was a Belgian Marxist applying for permission to enter the United States; in Stanley the speakers were makers of pornographic films.

17. 381 U.S. 301 (1965).

18. Id. at 307.

19. At one point, the Post Office was keeping a central list of these recipients, although it claimed to have discontinued the practice before trial. 381 U.S. at 303.

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A possible reason for the Court's disregard of the free expression system's second stage is that the threat of inhibition to the second stage is much harder to imagine than the threat of inhibition to the first. If inhibition stems from public disapproval of unpopular beliefs, the speaker in the first stage is obviously vulnerable. Many people know what he believes, because he tells them. He invites antipathy, and perhaps suppression. The second stage of the system, on the other hand, takes place entirely within the mind of the individual, and in performing it the individual attracts no attention; he is insulated from public knowledge and potential disapproval. Perhaps a hostile public might not like the decisions he was reaching and might want to inhibit him from reaching such decisions, if it could know; but how would it find out? The insulation of the individual against the chilling of his selfgoverning decisions is thus his ability to prevent public knowledge about himself.

Privacy is the name which the public disclosure tort cases give to the individual's ability to control information about himself.20 And with those cases, this concept of the nature of privacy is introduced into the law. Privacy understood in this special sense-as control of information about oneself-is prerequisite to the operation of the free expression system's second stage, at least if that second stage is to operate with the freedom from inhibition which has been firmly guaranteed to the first stage.

One simple recognition of privacy's importance to self-governance is the curtain on the voting booth. But the shelter of privacy is needed for more than the casting of the formal vote, both because there are other ways of registering self-governing choices and because the process of reaching a decision does not take place only at the moment of formal choice-registering; it is a continuous process which extends from the receipt of each item of information from a speaker to each choice, formal or informal, which the citizen registers.21 He who performs his listening and deciding functions in a glass house is coerced by public opinion, whether anyone is actually looking in or not. If every magazine

20. See, e.g., Banks v. King Features Syndicate, 30 F. Supp. 352, 353-54 (1939) (x-rays of plaintiff's pelvis); Mau v. Rio Grande Oil, Inc., 28 F. Supp. 845, 846 (1939) (plaintiff's experience as holdup victim); Cohen v. Marx, 94 Cal. App. 2d 704, 705, 211 P.2d 320, 321 (1949) (prizefighter's losing record); Melvin v. Reid, 112 Cal. App. 285, 289-90, 297 P. 91, 92-93 (1931) (plaintiff's former career as prostitute); Cason v. Baskin, 155 Fla. 198, 207-11, 20 So. 2d 243. 247-48 (1945) (biographical sketch of plaintiff); Trammel v. Citizen News Co., 285 Ky. 529, 531, 148 S.W.2d 708, 709 (1941) (plaintiff's debt to grocer). See also Prosser, supra note 1, at 392-98. For criticism of the public disclosure tort, see Kalven, supra note 7, at 333-39.

21. Cf. Meiklejohn, supra note 13, at 255-57.

Privacy in the First Amendment

he reads, every rally he attends, every person he speaks to might somehow become a matter of public knowledge, he would feel inhibiting pressure. 22 The pressure is the same as that felt by a member of the NAACP in Alabama when he fears that the fact of his membership will be publicized.23 The Court itself, in discussing the threat to First Amendment freedoms which might result from the House Un-American Activities Committee forcing one admitted Communist sympathizer to identify others, has noted:

[T]hose who are identified by witnesses and thereby placed in the same glare of publicity are equally subject to public stigma, scorn and obloquy. Beyond that, there is the more subtle and immeasurable effect upon those who tend to adhere to the most orthodox and uncontroversial views and associations in order to avoid a similar fate....24

The effect described is the response of a citizen uncertain of his privacy as he goes about making self-governing decisions within the system of freedom of expression. A more highly developed form of the same coercion can be found in a citizenry watched over by a thought police, where the threat-that the manifestations of an individual's thinking will be collected and examined-is made overt.25 No curtailment of the first stage of that system is necessary to erode it; inhibiting the second stage is just as effective. And since the participants in the latter stage are more numerous and more timid than speakers in the former, effective methods of control can be less direct and less conspicuous than those which successfully inhibit the first stage of the system's operation. Not only the privacy of the decision-making process but also confidence in that privacy is at stake; pulling back the curtain on one voter

22. The most eloquent statement of the point occurs in Bloustein, Privacy as an Aspect of Human Dignity: An Answer to Dean Prosser, 39 N.Y.U. L. REV. 962, 1003 (1964) [hereinafter cited as Bloustein, An Answer to Dean Prosser]. The mere collection of such data may constitute an infringement of privacy even apart from the threat of inhibition. See Nader v. General Motors Corp., 25 N.Y.2d 560, 573, 255 N.E.2d 765, 773, 307 N.Y.S.2d 647, 658 (1970) (Breitel, J., concurring). But see T. EMERSON, supra note 7, at 556.

23. See N.A.A.C.P. v. Alabama, 357 U.S. 449 (1958). In that case the Supreme Court said that

compelled disclosure of affiliation with groups engaged in advocacy may constitute [an]... effective . . . restraint on freedom of association This Court has recognized the vital relationship between freedom to associate and privacy in one's association Inviolability of privacy in group association may in many circumstances be indispensable to preservation of freedom of association, particularly where a group espouses dissident beliefs.

Id. at 562. See also Louisiana v. N.A.A.C.P., 366 U.S. 293 (1961).

24. Watkins v. United States, 354 U.S. 178, 197-98 (1957) (emphasis added). 25. For the effect on privacy of totalitarian government, see, e.g., A. WESTIN, PRIVACY AND FREEDOM 23 (1967); Kalven, supra note 7, at 326.