This is the first of two posts I will make about Neil Richards’ book, “Intellectual Privacy: Rethinking Civil Liberties in the Digital Age”.
After having read the first half of Richards’ book, it seems to me that the problems he seeks to address- namely the inability of a disclosure tort to protect privacy given countervailing First Amendment considerations, along with the shortcomings of an invasion tort – stem from an overzealous approach in US law to protecting First Amendment rights.
The distinction between the two torts is not so robust when one looks at their respective elements, so it is questionable why one action is saved by First Amendment considerations while the the other is not. In fact, Richards argues that in disclosure cases countervailing First Amendment arguments should always prevail, subject to a “few limited exceptions”. Separately, he shows that “no act of expression is necessary” under the invasion tort (asserting instead that expression would go to the damage award of an intrusion claim).
It is concerning that the First Amendment weighs heavily against one tort, but not against the other, leaving a significant aperture in the protection of privacy rights. It is difficult to accept the fact that courts condemn intrusive acts but not their subsequent disclosure by third parties. Richards identifies one such scenario, namely the “downstream use” problem, where the publisher of a private recording is not the same person who intrusively recorded it, giving the publisher potential First Amendment protection. Think of Tyler Clementi’s case. Yes, it was the original recorder who first published the video on Twitter, but say, for example, that the recorder had next to no followers on Twitter and a consequent low distribution on the social network. A First Amendment argument would go to the disclosure claim, but not to the initial intrusion. Now think about the situation where his tweet is picked up and re-tweeted by the Westboro Baptist Church which has over 11,000 followers on Twitter (or even posted on their website as ‘news’). Both the recorder’s intrusion and the Church’s re-tweet harm Tyler’s right to privacy, yet it would be possible for the organization to raise a First Amendment argument (as it did in Synder v Phelps). Whether or not a First Amendment argument would be successful is besides the point because the strong protection of free speech in the US puts the organization on a much stronger footing, even though we might consider that the person depicted in the distributed sex-video suffers more harm from the 11,000 follower re-tweet than from the intrusive recording itself.
Richards offers sex videos as one of the “few limited exceptions” where First Amendment rights may cower in the face of privacy rights, citing the Pamela Anderson Lee sex-tape case where the video was deemed to be “not newsworthy”. This undermines Richards’ theory that the court should and does shy away from determining what is and what is not “newsworthy”. Clearly in this case the court felt that the “privacy interest in not having [one’s] sex life exposed” trumped the Internet video distributor’s First Amendment rights, and balanced the rights against each other.
My proposition is that, in fact, the US courts engage in the same balancing act that European courts do, but in doing so automatically give more weight to First Amendment rights, emanating from a reluctance to cast opinions on the newsworthiness of the content disclosed. This in practice has the appearance of a system where the First Amendment trumps (nearly) all privacy claims, and stems from a culture of rigid free speech protection in the US. Richards himself says, “First Amendment rights must trump disclosure privacy except in cases of truly extraordinary disclosures of private information”. They “must“. To me, this is just a roundabout way of saying, “First Amendment rights will not always trump disclosure privacy rights.” Richards cites sex-videos as one example where they will not, but there are bound to be others (nude pictures, lewd audio recordings). The scale of harm to privacy may decrease, but that does not mean the First Amendment rights at hand should prevail. The problem with Richards’ statement is that it frames free speech as a “more important value” than disclosure privacy. But there are cases, by Richards’ own admission (and he names one) where privacy is a more important value.
The balance is, admittedly, delicate, and we must trust judges’ ability to strike it carefully (something which Richards casts doubt on). Newsworthiness, in this day and age, is almost as slippery a concept as privacy itself. Does a disclosure become newsworthy and therefore susceptible to heightened First Amendment protection simply by reason of the fact that a news organization publishes it? If a story starts life as a tweet, then a re-tweet (and 50 more), then a blog-post, then a story on an independent news website, and then on the Daily Mail, when should judges deem it to have become newsworthy? The deference judges are encouraged to pay to news publishers is unwarranted in the digital age. This represents Solove’s argument, which I find persuasive: the law should do a better job striking a “delicate balance” between speech and privacy in individual cases, and abandon Brandeis’s “newsworthiness” test.
Richards acknowledges the shortcomings of the disclosure tort, and proposes that we “put the model of disclosure privacy to one side” to solve the new problems confronting modern society. But this is premised on an almost insurmountable right of free speech. The US courts do balance privacy against free speech, but a fleeting glance at the cases Richards examines would not show such a balancing act taking place. This is due to the extreme weight given to First Amendment rights, which invariably results in privacy rights starting on the back foot. In the modern age, where the concept of newsworthiness is a matter of degree that cannot be defined simply by reference to what actually appears in the news, and where the array of situations in which one might want to claim a right of privacy is so diverse and hard to predict ex ante, Richards errs in dismissing the European model of starting with privacy and free speech on an equal footing. It is impossible to reduce the concept of privacy to a simple idea, and therefore wrong to advocate that it should always cower in the face of a free speech argument. If one accepts this, the shortcomings of a disclosure tort to protect privacy are not so apparent.