Privacy in the First Amendment

gory the central injury has long been recognized in law, and calling it an injury to "privacy" is a semantic, not a legal, innovation. The public disclosure tort, on the other hand, presents a true conceptual novelty: the idea that mere publication of accurate data about a person might cause him legal injury.52

The false light action protects against injuries to reputation only; and, as with libel, truth is a defense. It therefore gives the individual no right to control accurate information about himself. Any relationship of the tort action to a concept of privacy is tenuous.

53

The action for appropriation of name or likeness protects against the publication of true information about the individual, but it concerns only that information on which the individual might have capitalized himself. The injury is a commercial one; the action protects less a right to privacy than a right to publicity. Since recovery under the appropriation tort depends on the economic injury suffered, those who suf fer the largest loss of privacy through publication of their names and faces-those who have been utterly unknown before the publication— stand to recover least.55

The intrusion tort comes closer than false light or appropriation to offering a satisfactory definition of privacy. It protects the individual's right to control access to his immediate surroundings, and thus defines

52. Before the famous article by Warren and Brandeis appeared in 1890, this was a suggestion virtually unheard in the law. Warren & Brandeis, The Right to Privacy, 4 HARV. L. REV. 193 (1890).

Seventy-five years later, the law still often fails to recognize injury to privacy in the absence of trespass, bodily injury, theft, or money damages. See Ruebhausen & Brim, Privacy and Behavioral Research, 65 COLUM. L. Rev. 1184, 1185 (1965). See generally 1 F. HARPER & F. James, THE LAW OF TORTS § 9.5, at 678-79 (1956).

53. Prosser, supra note 1, at 406-07. See also Nimmer, The Right of Publicity, 19 LAW & CONTEMP. PROB. 203 (1954); Note, The Right of Publicity: A Doctrinal Innovation, 62 YALE L.J. 1123 (1953).

54. There can be no economic measure of a genuine injury to privacy; the worth of a man's privacy cannot vary with the commercial value of his name or face in the marketplace. Yet just this distortion has crept into nearly all privacy tort recoveries because elements of appropriation actions have not been kept separate from those of other suits classed under the privacy heading. See Bloustein, An Answer to Dean Prosser, supra note 22, at 977-91.

Damage measure is a long-standing problem in privacy tort law which this Note does not purport to solve. Justices Harlan and Fortas have suggested an actual or compensatory damage measure. Rosenbloom v. Metromedia, 403 U.S. 29, 66 (1971) (Harlan, J., dissenting); Time, Inc. v. Hill, 385 U.S. 374, 420 (1967) (Fortas, J., dissenting). But for a discussion of the difficulty of measuring the extent of an injury to personality caused by publication, see Shapo, Media Injuries to Personality; An Essay on Legal Regulation of Public Communications, 46 TEXAS L. REV. 650, 658-67 (1968). For criticism of privacy damages as conjectural, see Kalven, supra note 7, at 334. For the observation that the injury for which privacy damages are supposed to compensate is irreparable, see Bloustein, An Answer to Dean Prosser, supra note 22, at 1002-03. See generally W. PROSSER, THE LAW OF TORTS § 117, at 815 (4th ed. 1971).

55. Perhaps in recognition of this problem, California has recently imposed a minimum liability of $300 for commercial use of a person's name, photograph, or likeness. CALIF. CIVIL CODE § 3344(a) (West Supp. 1972). The appropriation tort is the only one of the four privacy torts to be codified in state statutes. See W. PROSSER, supra note 54, § 117, at 805.

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privacy as control of physical space. Physical space is an important and well-recognized element of privacy, and spatial metaphor dominates legal thinking about the subject; for example, we most commonly refer to any infringement of privacy as an "invasion." Yet on the basis of its definition of privacy, the intrusion tort draws distinctions which seem to have nothing to do with privateness. In Nader v. General Motors Corp., for example, “mere gathering" of private information was held not punishable unless the gatherer was "unreasonably intrusive." Though Nader claimed that he was shadowed by detectives, that a dossier on his private life was compiled through observation and interviews with acquaintances, and that his bank accounts and tax returns were pried into, only wiretapping and eavesdropping were held to give rise to a cause of action for intrusion.57

The public disclosure tort, by finding legal injury in the mere act of publishing accurate data about a person, protects something which is farther from traditional tort theory, and perhaps closer to a satisfactory concept of privacy. The actual content of a person's privacy is a subjective matter over which people inevitably disagree, but even as they disagree they can share a common concept of how privacy works and what purpose it serves. Scholars who have sought a conceptual definition of privacy have not been unanimous, but a common theme appears in many of their efforts: that privacy reflects a psychological need of the individual to keep some core of personality to himself, outside the notice of society.58 The ultimate value at stake has been variously described-human dignity, individuality, and autonomy have been suggested-but in each description the point is that it is kept from the awareness of others at the will of the individual.59 Nor is privacy simply rigid secrecy; it is essential that the individual be free to reveal parts of his selfhood to chosen others. Charles Fried considers this gift of selfhood to be the essence of relationships of love, friendship, trust, and respect, and argues that these intimate relationships cannot exist without the confidence of the individual that only his chosen intimates will possess intimate knowledge of him; in other words, intimacy depends on the inaccessibility of one's private self to society at large.61

56. 25 N.Y.2d 560, 255 N.E.2d 765, 307 N.Y.S.2d 647 (1970).

57.

58.

25 N.Y.2d 560, 564-71, 255 N.E.2d 705, 767-71, 307 N.Y.S.2d 647, 650-56 (1970). H. ARENDT, THE HUMAN CONDITION 22-78 (1958); E. GOFFMAN, THE PRESENTATION OF SELF IN EVERYDAY LIFE (1959); A. WESTIN, supra note 25, at 8-63; Bloustein, An Answer to Dean Prosser, supra note 22, at 1002-03; Arnold Simmel, Privacy is Not an Isolated Freedom, 13 NOMOS 71, 72-74 (1971); Warren & Brandeis, supra note 52, at 205. See also Rosenblatt v. Baer, 383 U.S. 75, 92 (1966) (Stewart, J., concurring).

59. See note 58 supra.

60. Shils, Privacy: Its Constitution and Vicissitudes, 31 Law & CONTEMP. PROB. 281, 281-83 (1966).

61. Fried, Privacy, 77 YALE L.J. 475 (1968).

Privacy in the First Amendment

Control of information about oneself is thus the essence of privacy: "the claim of individuals . . . to determine for themselves when, how, and to what extent information about them is communicated to others."62 The public disclosure tort action-which punishes the unjusti fied exposure through mass publication of the data of an individual's life-contains the only direct recognition which the law has given to that non-libel, non-territorial, non-commercial claim.63

III

Constitutional law shares the conceptual weakness of common law in the privacy area. The Supreme Court has declared that the Constitution protects a right to privacy, but the supporting analysis offers no hint as to how that protected privacy might be defined. Other constitutional grounds which have been set forth present better possibilities of definition, but the rights so defined are far too narrow and qualified to serve as a satisfactory "right to privacy."

65

As the opinions in the recent abortion cases confirm, the Court's primary analytical model of privacy is that which appears in the plurality opinion of Mr. Justice Douglas in Griswold v. Connecticut. In Griswold, Justice Douglas collected the various existing constitutional doctrines which might be considered to protect some specific interest in privacy-including the First, Third, Fourth, Fifth, Ninth, and Fourteenth Amendments-and, rather than relying on any one of them, declared that their sum resulted in a constitutional interest in privacy in general. Justice Douglas' argument, though in form an argument by analogy to existing constitutional rights, in effect contended for the establishment of a new and independent constitutional right. The protection of privacy is incident to several constitutional goals; therefore it should be a goal itself. The formula reflects the belief of Pro

66

67

62. A. WESTIN, supra note 25, at 7. Similar definitions are offered in Ruebhausen & Brim, supra note 52, at 1189-90, and Shils, supra note 60, at 282.

63. If courts come to accept the separate doctrinal underpinning of the public disclosure tort, they can begin to untangle some of the confusions of privacy law in general, an area whose state of organization one judge has likened to "a haystack in a hurricane." Ettore v. Philco Television Broadcasting Co., 229 F.2d 481, 485 (3d Cir. 1956) (Biggs, C.J.). Plaintiffs would be able to seck relief directly for injuries to their privacy without having to claim injury to reputation or pocketbook as they often must at present. See note 52 supra. Hybrid privacy actions would cease to distort libel law. Cf. Wade, supra note 51. See also Kalven, supra note 7, at 335. Finally, courts would be able consistently to separate economic injury from injury to privacy and relegate them to separate causes of action. Cf. note 54 supra.

64. Roe v. Wade, 93 S. Ct. 705 (1973); Doe v. Bolton, 93 S. Ct. 739 (1973).

65. 381 U.S. 479 (1965).

67. See Mitchell Franklin, The Ninth Amendment As Civil Law Method and its Implication for Republican Form of Government: Griswold v. Connecticut; South Carolina v. Katzenbach, 40 TULANE L. REV. 487, 490-91 (1966).

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fessor Emerson, who argued the case for the Griswold plaintiffs before the Supreme Court, that only a newly declared constitutional right which "cuts across" other constitutional rights can adequately protect individual privacy.68

The First, Fourth, Fifth, Ninth and Fourteenth Amendment argument of Griswold-perhaps streamlined in Roe v. Wade to a Fourteenth Amendment argument alone69-presents the advantage of breadth. However, the definitions of privacy which the Griswold approach offers are at best descriptions of a widely shared emotional attitude.70 Analytically, the reasoning of Griswold and Wade offers no guidance for separating what privacy is from what it is not; it offers no generalizable definition of the right it is used to protect. Indeed, the extreme breadth of the Griswold analysis has produced utmost caution in courts called on to apply it,"1 and even Wade extends the resulting right only within the area of intimate bodily conduct. Confining the right to privacy inside that area is sanctioned by custom, but not by anything in the reasoning of the decisions.

71

An alternative to the form of argument which identifies privacy as a wholly new constitutional right is one which discovers that privacy. is incident to a constitutional right already well established. If that established right is to be fully realized, the argument runs, privacy in some form must be protected. Each of the doctrines which Douglas col

68. T. EMERSON, supra note 7, at 556. Professor Emerson's brief in Griswold invoked the First Amendment in support of a constitutional right to privacy, but it did so only in a limited context. Brief for Appellants at 79-80, Griswold v. Connecticut, 381 U.S. 479 (1965). There is no suggestion that a constitutional right to privacy might rest on the First Amendment or its system of freedom of expression; indeed, the First Amendment was not included in the summary list of constitutional provisions from which a right to privacy was said to emanate. Id. at 12.

69. Roe v. Wade, 93 S. Ct. 705, 727, 733-36 (1973) (Stewart, J., concurring); id. at 755 (Burger, C.J., concurring). But cf. id. at 737-39 (Rehnquist, J., dissenting). Two of the Griswold opinions also located the right to privacy under the Due Process Clause of the Fourteenth Amendment. 381 U.S. at 499-500 (Harlan, J., concurring); id. at 502-03 (White, J., concurring).

70. The most familiar such definition of privacy is "the right to be let alone." See, e.g., Griswold v. Connecticut, 381 U.S. 479, 494 (Goldberg, J., concurring), quoting Olmstead v. United States, 277 U.S. 438, 478 (1928) (Brandeis, J., dissenting). Justice Goldberg offers another in Griswold: "the integrity of [family] life." 381 U.S. at 495. Cf. Justice Black's attack in Griswold on the dangers of defining privacy too narrowly, 381 U.S. at 509 (dissenting opinion).

More usually, the Court's attempted definitions of privacy reflect only the Court's own sense that the subject is important. Examples of these include "the right most valued by civilized men," Griswold, 381 U.S. at 494 (Goldberg, J., concurring), quoting Olmstead, 277 U.S. at 478 (Brandeis, J., dissenting); "a right older than the Bill of Rights," Griswold, 381 U.S. at 486; and "personal rights implicit in the concept of ordered liberty,'" Roe v. Wade, 93 S. Ct. at 726, quoting Palko v. Connecticut, 302 U.S. 319, 325 (1937).

71. See T. EMERSON, supra note 7, at 557. Cf. Hufstedler, The Directions and Misdirections of a Constitutional Right of Privacy, 26 RECORD OF N.Y.C.B.A. 546, 559 n.59 (1971).

Privacy in the First Amendment

lected in Griswold offers such an analysis.72 And though Griswold may stand for the proposition that no one of them alone is adequate to support a right to privacy,73 one in particular has seemed promising.

74

In her 1971 Cardozo Lecture, Judge Shirley Hufstedler set out an argument for deriving a broad constitutional protection of privacy from the Fourth Amendment prohibition of unreasonable searches and seizures. Judge Hufstedler argued that the Fourth Amendment (and to a lesser extent the Fifth as well) was drafted to prevent penetrations of individual privacy, and that to realize that goal a broad interpretation should be given to the words "searches and seizures."

Were that course taken, any governmental probe, corporeal or incorporeal, designed to uncover or to disclose information about a person would be a "search." The question whether the search was permissible would turn on its reasonableness.75

In effect, Judge Hufstedler proposed a constitutional analogue to the torts of intrusion and appropriation.

A Fourth Amendment "right to privacy," however, does not protect the substance of one's privacy; it merely prevents certain methods of obtaining that substance.77 A reasonable search or seizure would presumably be constitutional no matter what the content of the private information revealed, nor would the content of that information necessarily affect the judgment of what is reasonable. In other words, the Fourth Amendment offers no definition of the content of its right to privacy, other than a reflexive one: it is that which is violated by an unreasonable search or seizure. Although the Supreme Court has repeatedly denied that the Fourth Amendment protects the privacy of places rather than people, it has yet to produce a Fourth Amendment holding which does not depend on the nature of the place where the unreasonable search or seizure took place. To the extent that privacy

72. These include the types of privacy protected by the First, Third, Fourth and Fifth Amendments, 381 U.S. at 484. Douglas seems to gloss over the Due Process Clause of the Fourteenth Amendment. Id. at 482. He does not do more with the Ninth Amendment than to quote it. Id. at 484.

73. The First Amendment rights which Douglas recounts-freedom of schooling and freedom of association-are subordinate to the express free speech guarantee, and they act to secure it. The Third Amendment protects the privacy of the home, if at all, only against the specific threat of being forced to quarter soldiers in peacetime. The Fourth Amendment protects privacy only as an incident to the prohibition against unreasonable searches and seizures. The Fifth Amendment's "zone of privacy" is subordinate to the operation of the Self-Incrimination Clause.

74. Hufstedler, supra note 71.

75. Id. at 561-62.

76. See, e.g., United States v. White, 401 U.S. 745, 751, 752 (1971). 77. See Katz v. United States, 389 U.S. 347, 350 (1967).