The First Amendment and Privacy Rights

- Eugene, we haven't really talked about privacy much.

- That's 'cause it's none of our business.

- Well, today it's gonna be our business.

- Well, yeah, actually it should be our business. It is in many ways free speech scholars business to also think about privacy. Sometimes free speech and privacy pull in the same direction. Sometimes you have Right. Speak free of government, figuring out whom you're speaking with, let's say, or what your identity is and the like. But a lot of the time, free speech and privacy pull in opposite directions. Sometimes privacy rights are rights to stop people from speaking about you. That so what's, that's what we're gonna explore today. Hello, my name is Eugene Volokh. I'm a senior fellow at the Hoover Institution at Stanford University, and for 30 years, that was at UCLA law professor, still Professor emeritus there. My co-host is Jane Bambauer, the University of Florida Law School. We've also studied free speech and we study privacy. And we're gonna talk about that today. Let's, let's start talk. Let le let's break this up into two categories. One is, when does free speech give you a right to speak with privacy? In some sense, that's what free speech and privacy pull together often when it's privacy from the government that you are seeking. And then maybe you can tell us after we talk about that, when free speech and privacy might pull in opposite direction. Now, how various privacy laws in the so-called privacy torts, how they interact with the free speech provisions.

- Yeah. Okay. Well, so, so free speech and privacy go hand in hand most comfortably when, when privacy gives people some relief from governments, I don't know, prying or intimidation of some sort that might otherwise prevent people from partici fully participating politically. So, so for example, you know, the founding of this country was enabled to some degree through anonymous pamphlets. And the people who produced them and wrote them were taking on some personal risk by, by writing them. And, and, and so today, I mean in part because of that history, but in part, just speak for other sort of theoretical reasons. The First Amendment provides a source of privacy from laws where the government might otherwise force people to identify themselves when they're speaking.

- That's absolutely right. So here's one example. There used to be laws that say, if you wanna hand out leaflets related to, to politics or sometimes related to a, to an elect an election, you have to sign them. You have to indicate who you are. And as a general matter, the Supreme Court said that's unconstitutional. Your right to speak includes the right to speak anonymous. And that's for two related reasons. One is you get to choose what you write on your pamphlet. You get to choose what arguments you make, what arguments you don't make, what facts you include, what facts you don't include. And one such fact is your name that if they, that if you want to output to, to distribute this particular pamphlet with just these words and none of them is your name. Well, you have the right to do that. Just like you have the right to say other things. That's sort of a formal argument and then a functional argument that if you have to identify yourself, you might not always, of course, but you might be deterred from saying things that are unpopular that may lead to government retaliation or to private retaliation and the like. Likewise, relatedly, the Supreme Court held in a famous case in the late 1950s involving NAACP and Alabama, that Alabama couldn't just say, well, you have to turn over your membership list to

- Us.

- Right? If you are going to operate in the state, including if you're operating as a non-profit advocacy group, because in 1950s Alabama, it would've been pretty risky for many people to be identified as NAACP supporters and they would be deterred by the presence of this law from, from supporting the naacp. So, so that's the general, but there are, there are exceptions to that. Right. Especially when it comes to election related speech and Spanish. Yeah, I

- Was just gonna say, people are probably thinking right now about the various FEC rules that require disclosing certain types of political donations,

- Right? That's the Federal Election Commission. And of course it's state analogs as well. So what have the courts generally said about such rules

- Generally that they pass some, some scrutiny given the, the public interest in understanding the election system and making sure that, that we, under that it's only sort of legitimate stakeholders, you know, Americans basically, that are participating in the, in funding the elections.

- Right? Right. So there are a couple of things going on there. One is there are requirements, for example, when it comes to spending with regard to, to federal election spending really any money with regard to federal elections, you have to be an American citizen or I believe also a lawful permanent president. But it's illegal for, for somebody even who, who perfectly legally here and maybe legally here for a long time, if they're not a lawful permanent resident or a citizen, they can't, they can't speak. That's just a general prohibition. But also everybody, including including citizens, if they spend, if they contribute or often even independently spend more than a certain amount, they have to disclose this to various election related bodies. And that may actually end up being publicized on the website. The theory there being that people should be able to know who it is, who's funding elections. So the general sense is that is an limitation on anonymous speech, on your ability to either engage in independent spending anonymously or contribute so to a candidate associated with a candidate by sharing your resources with a candidate. So the candidate can, can speak. It's a, on your ability to do that anonymously too. But the sense is that's a, there's a strong enough reason supporting those kinds of restrictions having to do with maintaining the integrity of elections and possibly sort of deterring, for example, bribery, making it easier to identify bribery, making it easier to identify a illegal spending like foreigner spending. But also possibly there's some controversy about whether this is a sufficient reason, possibly just to inform the public of who is spending related to elections. So the courts say, yes, there is a presumptive right of it, of privacy in your, your who you are as a speaker and in your associations, but it's overcome by compelling or at least important enough interests in election integrity. So that's an important, important point to realize there is a right of privacy for your speech against the government. There is a presumption that the government can't require you to identify yourself as the, as the speaker or to identify yourself as a contributor of money towards the production of speech.

- But that, and of course there's also overcome also. Yeah. And of course there's also the fourth amendment right to privacy that I think does not interfere with the First Amendment interest in speech and, and may even facilitate them to the extent that if people are worried about, you know, overzealous surveillance by the government, generally, that's usually it's the fourth amendment that people think about. And, and if one of the potential problems from, from over surveillance is, is deterring people from participating in protests or, or from, you know, using their voice, then you could see the fourth amendment and the first amendment as right. As, as

- Right.

- Working together.

- Yeah. And historically, historically, the freedom from unreasonable searches and seizures has been recognized in, in part in England it was recognized in, in important cases, having to do with, with searches for alleged libels, alleged seditious libels against the government. Hmm. So yeah, one important protection we have for the privacy of our speech is that the government suspects that we are, that we are organizing some, some political movement or, or preparing some, some materials to publish it. Can't just sort of say, okay, fine, we're just gonna search your home, search your computer, search your yourself phone for that. It generally needs probable cause and a warrant and other such protections. As for other things, of course the Fourth Amendment protects a lot more than just privacy and speech. But it has historically and continues to be useful for protecting that. Of course, when it comes to such searches and the related subpoenas, the protections are necessarily limited. So if the government does have probable cause in a warrant to believe that, for example, that you are composing death threats on your computer, you, they think you're the one who sent out a constitutionally death threat, they may be able to search your, your computer for that. Likewise, in the civil justice context, if somebody, let's say Alan Sues Jane Doe, turns out it's Betty, but he doesn't know it's Betty. Alan Sues Jane Doe saying, she defamed me. He can then get subpoenas essentially to simplify here something that could be backed by a court order to a, let's say, interest service provider and right. And o and other such companies to try to unmask Betty. Now courts in the interest of protecting privacy of speakers will do some, some checks beforehand at least can be asked by someone representing Jane Doe, who turns out is secretly Betty to, to quash the subpoena. Because let's say Alan has no legal basis at all. He is suing over something that's clearly an opinion, let's say, so that that too allows for some protection of privacy. But if Alan says, look, Betty accused me of stealing from her, it's a factual allegation, or let's say not stealing from her, stealing from someone, right? I stealing from

- Your work or something.

- Right? It's a factual allegation. I'm denying it, it's certainly something that would be defamatory if it's false, and I should be able to argue to a jury that it's false. But I can't do that until I can identify who Betty or who Jane Doe is again, turns out that it's Betty and I can use subpoenas in order to do that. So again, there is protection for privacy for speakers, but it's not unlimited among other things because if it were unlimited, then anybody could anonymously defame anybody else or anonymously threaten anybody else. And then, and then there'd be no way of unmasking them. There are ways of unmasking them, although with some limitations and some protections aimed at protecting the really innocent speakers.

- Okay. So, so far we've talked about mechanisms for protecting ourselves, you know, protecting our privacy from government compulsion or government, you know, revelation or, or, or acquisition of information. And that's true even for these subpoenas, these, you know, Jane Doe sorts of cases where ultimately it's a court that is ordering another company to provide information to another, to a party, to a litigant. But I think first, the first amendment and privacy get in the most tension when there is a private individual who wants to acquire or to share information about another private individual.

- Right. Private in the sense here of a non-governmental,

- Non-government,

- Right. Maybe famous, maybe not, but somebody other than the government, right?

- Someone other than the government. That's what that very, very, yeah, very good clarification. Because in that case, the private individual who wants, you know, the, the person who wants to keep their privacy intact, can't say it's the government that's causing me some kind of grief. You know, there's no state action necessarily. Instead, their claim has to be, well, you know, this person, this defendant wants, wanted to know something about me and I just didn't want them to. And so it is more of a information interest versus privacy interest clash,

- Right?

- So that the, the origin of legal protection that,

- I'm sorry, if I could just give a, a give a concrete illustration for our listeners of the kind of thing that might happen. So let's say that I am about to write something on my blog. I have a blog, it's hosted by Reason Magazine, and I am writing a story on, on that blog about some person, and I'm about to, to publish about them, and they say, wait a minute, I don't want you to write about me. What about my privacy? You are disclosing something I may have filed in court, or I may have tried to file in court or something completely unrelated to court. I think it should remain private, or I think my name should remain private. And I said, but wait a minute, what about my right to speak? Why isn't, doesn't my right to speak, including the right, include the right to speak your name and right to speak information about you. That's the tension between free speech and privacy. Often when people assert privacy against this non-governmental entity, could be an individual, could be a, a newspaper company, could be a, it could be a nonprofit advocacy organization, could be whatever else. They're essentially saying, stop talking about me, or at least when you talk about me, don't disclose certain information about me. That's a speech restriction, maybe a constitutionally permissible speech restriction in some situations. But it is a speech restriction. And that's where the, the real tension between the first amendment and privacy. That's one example. Not the only, but one of the examples where it arises. Yeah. So Jane, back to you.

- Yeah. Well, so, so one of the kind of ironies of, of, of privacy American privacy law is that its origin story is sort of surprising and confusing. So, so the original civil claims, you know, claims that people could bring against each other for privacy, were inspired by this old law review article written by Samuel Warren and, and Louis Brandeis called the Right to Privacy, where they were conceptualizing how a common law tort claim might work if someone's pri if someone felt like they were harmed by a privacy violation. And the context, by the way, was that the, the handheld camera had recently been invented, and Samuel Warren, at least I'm not, I don't, I don't think this is so true of Brandeis, but Warren at least used to have these kind of, you know, elegant parties sort of, and, and the, the early versions of the paparazzi would sometimes show up and, and take pictures. And, and so then people's not just names, but images would be in the tabloids. And so, so Warren and Brandeis argued that there ought to be some relief from overzealous attempts to gather information and share, disclose, you know, publish information that would otherwise ordinarily before the invention of the camera, at least be private. And I, I find this ironic because, you know, Louis Brandeis at least went on to become one of the fiercest free speech kind of advocates. Many, you know, the, the strength of the First Amendment to today is, you know, is is is greatly affected by the period when Brandeis and, and Oliver Wendell Holmes were writing their famous descent and sort of expanding the, the reach of, of First Amendment coverage. And, and so, so sort of interesting to imagine that at least, you know, at least in 1890, Brandeis felt comfortable arguing that basically somebody should be able to have, he compared it to like an intellectual property style, right? To say, Hey, no, this is my information. You cannot, you cannot use it. You, you know, you can't sort of steal it from me.

- Right? And it's interesting, by the way, it's an interesting feature of our language. And by the way, our, our shared language, English, the one other language that I know Russian also has this feature, maybe it's most languages, maybe in fact therefore it's suggest, it's a feature of, of just human, human mental processes that we use the same word my, to refer to things that belong to me, my house, and things that are about me, my name, my life story. And so it does become the, in some ways, at least some people intuitive that, well, just as I'm entitled to stop you from using my house to speak, it can't just barge into my house or even onto my lawn to speak as it's mine, my lawn. I should be able to let you excuse, excuse me, I should be able to stop you from using my name or my life story because it's mine, right? So that, that's something intuitive to many people, to other people. It's equally intuitive in the other way. Like, well, of course, if I'm entitled to talk about things, one of those things is people. And that may include people who don't wanna be talked about. And that's especially true if I've grown up in, in a, a culture with lots of mass media where all of these newspaper stories, stories in television, stories on the web about people who may not wanna be written about criminal defendants, let's say, or even somebody who hasn't yet been formally accused but is suspected of a crime, of course, they don't want their name and claims about their lives and their actions to be used in a newspaper. We could say, well, of course a newspaper is perfectly free to talk about such thing, right? Just like it's free to talk about ideas and about policies. It's free to talk about people because people first, because sometimes important debates are about what people allegedly did. And sometimes because it's hard to understand abstract ideas or abstract policy arguments without seeing real stories. So that's, I think, one reason why there is a lot of tension among, between many people's understanding of free speech and privacy and between many people's, between some people's understanding of a very broad scope of privacy rights and others understanding of a very limited scope, especially when they're up against other people's free speech rights.

- Yeah. Well, I mean it to, to illustrate that there are a lot of, there are surprising number of cases that involve a situation where someone wants to tell their own story but must inevitably disclose something about somebody else. And so then it's, you know, one person is legitimately saying, Hey, that's my life story. You can't tell my life story and the other, and whereas the defendant was say, no, I'm not telling your story, I'm telling my story. You know, so cases that involve, you know, ex Yeah, go ahead.

- No, no, I'm sorry, go on. I just wanted to make sure that we give credit to one particular scholar who has written, I think very interesting stuff about this, about this.

- Oh, okay. Yeah. So, so ca ca cases and often involve like, for example, memoirs detailing the detailing, you know, incidents, sensitive incidents that happen during a relationship or, or family drama that spills out into the Maury Po show or some stuff like that.

- Right? Right. So that's, that's absolutely right. So Sonya West, who is a professor of the University of Georgia, had a couple of articles about, about free speech and auto autobiographical speech. And the first one published in 2006 is the story of me, the under protection of, of autobiographical speech. And it focuses on kind of autobiography as protected, you know, the First Amendment does protect it very broadly. Her argument was that in some ways it's not as protected as it should be. And then four years later she wrote a follow up called The Story of Us Resolving the Face off between Autobiographical speech and Privacy. And that's because basically almost no autobiography is really just auto self biography, right? That's right. That would be a, that would be usually a boring and certainly an extraordinarily self-absorbed memo. Let me tell you about everything I did. And I won't even mention mention about anybody else. Mention anyone else. Yes. Right. So, so, so yeah, yeah, Jen, you, you, you're absolutely right. This is actually autobiography. Well that is an area where there's a lot of tension here. But of course, biography even more so, like there are all these unauthorized biographies. Why can't someone say, wait a minute, you can't make money off of my life story. Well, because the Lord does generally protect people's right to speak about other people, not withstanding claims of privacy, but only generally. So famously, this privacy tort that you mentioned, the one that was originally pioneered in this law journal article for historical reasons, legal academics call articles in learned journals about law. Excuse me. They're called learn journalism about law Law reviews. It's not necessarily like a book review or a review essay that's necessarily derivative of, of other people's ar articles or books. That's just what we, what we call learn a journal. So this is a famous article in the Harvard Law Review, which was written by then two prominent Boston lawyers, Louis Brandeis, and I believe Samuel Warren. I think that was

- Samuel Warren. Yep.

- And it was then adopted, its ideas were adopted in some measure by courts throughout the 20th century in the US and then a, a famous tort scholar who's known as Dean Prosser, 'cause he's also a dean, but I think he was William Pross William,

- Yeah.

- Summarized those cases that had emerged and as basically forming four different strands, basically four privacy torts. So it's not like there's one tort law rule of invasion of privacy. It's four of them. Public disclosure of private facts, intrusion upon seclusion, placing someone in a false light, and then misappropriation of name or likeness, also sometimes known as right of publicity. So let's start out at least by talking about these four torts. Jane, you wanna take maybe the first two, and I'll take, take the, the, the last two. Well,

- I'll do intrusion and public disclosure 'cause those I think are the mo I'll do

- Intrusion.

- Sounds

- Good. Okay. Exactly. Those are the ones I was giving you.

- Oh, okay. See, I know you right, I do. You do. Although if we were gonna go in histor historically accurate order, we'd start with misappropriation. Actually, the very first case, well, I'll let you, I let you

- Mystery.

- Okay, so let's, with intrusion, intrusion is the privacy tort that, that addresses efforts by a defendant to observe or record information about, about their target. So, so if you think of like the lifecycle of personal information, at some point it has to be noticed, right? At some point someone, there has to be some fact that some other person notices and then later that, that noticing might lead to a recording and then that might lead to a publication, you know, it's a dissemination and, and whatnot. But intrusion, I, I like think, I like starting with it because in order for anyone other than you to know something about yourself, they have to observe you. So the restatement, the second restatement of torts, which also, so in addition to the law review article that, that Dean Prosser wrote that, that Eugene mentioned, he also was the, what do you, what does the a LI call that the, the

- Reporter

- Author, the

- Reporter, again, another strange and somewhat confusing term reporters law reviews reporter.

- Yes, - Yes. He was the, we just used the English language we lawyers in, in a strange way.

- Yes, yes. To show that we have secret codes, I guess. So he was the reporter for the second restatement of torts. And, and the, the definition of an intru of intrusion upon seclusion is the following. One who intentionally intrudes physically or otherwise upon the solitude or seclusion of another, or his private affairs or concerns is subject to liability to the other for invasion of his privacy if the intrusion would be highly offensive to a reasonable person. So when I teach this tort, I, you know, students often see it as maybe co co constituting four elements. You need to intentionally, so there's a mental state you need to intrude upon the seclusion. So you know that you could think of that maybe as two elements, or maybe it's just one thing. It's like there needs to be some sort of pri private orbit or private space or, you know, kind of circumstance that then the defendant needs to intrude into it. And that observation or that, you know, that kind of penetration into that private space needs to have been highly offensive. So it's not enough for it to have been seclusion in the first place. It needs to also be a highly offensive sec intrusion. The types of cases that are textbook intrusion are things that nobody, I think would object to having tort liability to protect. So peeping Tom cases are classic intrusion cases, secret recording devices. Like if a landlord puts a, a secret, you know, video camera in in their, in their tenant's living room or even bedroom or something that, that, or wiretaps. Those are easy cases. There are also some that,

- By the way, I'm sorry, if I could just interrupt for a moment. I think we all know what you mean by peeping Tom cases. Someone walks like up to someone's house and peers through maybe moves the blinds a little peers through, maybe they're not trespassing, maybe for example, they're standing the outside of, of an apartment building, but, but they're, they're looking in someplace. They're not really that that, that under social convention we accept they're, they're not really allowed to look into. Of course, the original peeping Thomas, as I understand it, the story is supposedly the one who spied on Lady Godiva's naked ride. Right. And

- Oh, well that that would not be a good case, would it?

- That would not, because the interesting thing is that you can't have intrusion upon seclusion, generally speaking for things you observe in public. Likewise, we're gonna get to some of the other torts as well. Generally speaking, people have the right to observe and record things in public. Maybe not in weird parts, like weird parts, maybe not from weird places like for example, so-called outskirt photography would be another example of intrusion upon seclusion. Even if this is done in public and someone puts like a, a camera on a, some rolly thing and looks up a woman's skirt. But the actual peeping Tom, who was just not supposed to be looking at Lady Godiva riding naked through, through town, but actually did, there wouldn't be torque liability. So the story he was published in other way punished in another ways than torque. But the day

- Yes, that's right.

- Today I would defend that man against a tor lamp.

- Yeah, I I agree. We shouldn't all have to avert our eyes in public. Come on. Exactly. Exactly. Well one, one of my favorite cases for really illustrating how the tort works, involves, involves a, a public bathroom because everyone has had the experience where as you walk by a stall, especially if it's an older one where that's kind of gappy, you can sometimes see the people who are using them. But, and that's sort of, so there could be unintentional observation, maybe you don't see anything important, but, you know, that type of unintentional observation would be the sort of thing where even if you did accidentally learn, you know, sort of intruder learn something private about somebody, the tort wouldn't apply. But on the other hand, if you go walk into a public restroom and you, you know, take effort to peer between the slats, that would, that would be a good case of intrusion. And indeed there are those cases. So, but I, there are harder cases within the intrusion tort harder in terms for me at least, of squaring with First Amendment norms that involve instances where people are in a situation where they are allowed to observe. Either they're in public or they're a social guest or something. They're, they're there, the, the, the, the, you know, the subject of of interest knows that they are there, but the defendant Vince secretly records what happens. Mm. So there are successful cases finding that a, that that a plaintiff can sue and say, yes, I know that you were there, I know you heard everything I did, I know you saw everything I did in my living room, but I didn't give you permission to record that. And, and so that means that the nature of the privacy violation isn't acquiring the information in the first place, but it's getting it into a medium that can then be shared later or preserved for memory sake. And so, so for a long time, courts, I'd say they, they did not really recognize much of a first amendment in issue. The, you know, they, I think they thought once there's a new recording technology that hasn't been specifically consented to and you're in an otherwise seclusion type of situation, those cases can proceed. But, but things I think have taken a turn in part because of states that have all party wiretap acts. And so I think I have to explain what that is in order

- To say Yeah, especially since they're not really about wiretaps anymore.

- Yeah, no, they're not. Right. Okay. So, so federal wiretap, actually, I dunno, we can talk, maybe we'll go straight to the states. So every, you know, every state has some kind of wiretap law that prevents recording conversations to which you are not a party. Private conversations to which you are not a party. But some states they have wiretap laws that not only prevent you from secretly recording con private conversations to which you aren't a party, but also secretly recording conversations to which you are a party unless you have everybody else's consent. And these state wiretap statutes have occasionally been used or have attempted to be used by police officers who are recorded while doing their public, you know, public job in public while arresting somebody, for example. And so, and so in these cases, at this point now, every circuit that that has considered them has found that the police cannot use a wiretap, a state wiretap statute to sue for civil damages against somebody who has recorded their, their con their conduct in, in public.

- At least in a public place. Yes.

- At least in a public place. Yeah. But then that raises the question, well, so why it does so is there first amendment coverage or isn't there, so do we have a right to record or not? And so I, I think by recognizing that we have an interest in not just acquiring knowledge, but preserving it in a form where we, we can, in a highly credible way, tell others what happened. The courts are basically admitting that there is some tension between the intrusion tort or the, the con, you know, the, the, like the, the concept of, of a acquire of, of recording and, and first amendment address,

- Right? So that, that's right. So there are the, these states, the so-called two party consent states, I believe there are about a dozen of them. So it's, it's a, it's a minority of states, but but substantial number including Mount La Ponia, which is the big state which do say essentially that in order to to, to record a conversation, you need to have the permission of everybody, or at least the knowledge of everybody. So may most of these state laws are limited to surreptitious recording, although not, not all. And everybody's a party to the conversation. So that affects, for example, people's ability to record the police. It also affects a traditional, although always I think a little, a little dicey, but, but in some measure, long established practice of the hidden camera being used to capture people admitting doing something really bad. That was something that, that historically major news organizations had routinely done. They had an interview with someone or, or they didn't frame it as an interview that just looked like somebody is going to some business or to some person and asking them about something. They, that person would never have admitted it if they knew that it would be reported and broadcasted on national television, but not realizing they do admit it, then they say, well, you are on, I guess there's, you are on Candid camera. That's a line from an old show. I don't remember. I get the

- Reference. But

- Yeah, so, so I'm not sure whether they then got the permission. 'cause I don't think this was sort of investigative journalism, the camera show, but there, but there were such, I believe 60 Minutes for example, used to do that pretty, pretty regularly. And generally it's, it's understood that that is, that there's, this is at least an established part of news gathering, but an interesting question is if is can that in fact be made illegal? And of course if you make it illegal for ordinary folk, you know, I suppose you could have a statute that exempts established news organizations, but the First Amendment doesn't draw a distinction in an established news organization and an upstart, or just one person who styles himself a citizen journalist. So yeah, there is still this tension there, both with regard to the intrusion upon seclusion tort and with regard to these laws, which are state statutes that sort of operate on similar about that, that deal with similar concerns to the intrusion upon seclusion toward often there are clearer or more precise, narrower, but often more forceful in po potentially post criminal liability. Criminal

- Li yeah,

- Exactly. Foreign statute sometimes. So that's intrusion upon seclusion generally not that much of a First Amendment problem is to many of its applications in part because the focus is on intruding physical intrusion into certain places, or at least sensory intrusion in certain places as opposed to the communication of particular things. But the disclosure of private facts to really is a law that limits the ability to speak about people. So tell us about that.

- Yep. Okay. So the second restatement defines public disclosure of private facts as the following. One who gives publicity to a matter concerning the private life of another is subject to liability to the other for invasion of privacy. If the matter publicized is a kind that a, would be highly offensive to a reasonable person. So there's that highly offensive language again, and b is not of legitimate concern to the public. So the idea is you need to have some sort of fact about somebody that is private. Anything that's generally known to a broad enough community would, would not be a private fact. You as a defendant have to have given publicity to that. So that's, that is a, a narrower concept than the defamation publication standards. So last, in our last show we talked about the publication requirement where you can just tell one other person who's not the plaintiff and that satisfies publication publicity requires something broader than that. It's, you know, broad distribution, or at least the abil, you know, the, the potential to, to, for the fact to reach a broad audience. And, and of course the tort, though you might notice, has a little bit of a first amendment release valve built into it, which is that also, even if that private fact is given publicity, it needs to both be highly offensive and not of legitimate concern. So, so those, those requirements are quite hard arduous for, for plaintiffs to meet, especially because, or at least, you know, there, there are a lot of the courts are, are pretty willing to, to acknowledge that, that if generally speaking people are interested in a fact about somebody, then it would be, it would require, you know, it would put courts in a difficult position to say, okay, it might be interesting to you that this politician is gay, but we're just gonna say you shouldn't, you shouldn't be interested in that, for example. And, and so as a result, the cases I, I tell you that there are still some easy cases, easy cases have, are, are, are tend to have to do with sex and death. So revenge porn, even though lots of states now have revenge porn statutes, they in a way maybe didn't really, you know, many of them wouldn't have needed it in the sense that there was that, that that this, this tort would cover the circumstances of revenge porn pretty easily. And, and then gruesome photographs taken of, of of, you know, basically family members who passed away and then are passed around as, for example, for example, Halloween cards, people, people are really disgusting sometimes. Anyway, those types of cases also are easy cases of public disclosure. Many, you know, but, but it, that tho I I'd say those are the only two categories that I find routinely, you know, satisfy the, the court's concern about having no valid public interest. Eugene, am I missing some category of cases?

- No, no, I, I think, I think that's right. I think that this is the part, one of the privacy torts that seems to most butt up against the First Amendment. And in the battle between free speech and privacy in this area, free speech is largely prevailed. Again, part of it, because historically a lot of the lawsuits were brought against media organizations. And it's hard to say to the newspaper, well, yeah, this is not a matter of legitimate or public concern. True. You are in the business of, of informing the public. You think it's a public concern, your readers snap it up. But we, the judges say it's not a matter of legitimate public concern,

- Right?

- The judges are reluctant to do then of course these days, a lot of things that are posted on the internet and we, and reach a wide audience are not from established media organization. So maybe a judge could say, well, yeah, you, you Joe Schmo who's posting something on this on, on social media, you might think it's important, but we, we don't agree. You couldn't even get some newspaper interested in it or some such, so, yeah, so, so one

- Example of that might be the Gawker case, the case that brought down Gawker by Bolio.

- Right. Although there it was a media outlet and this was sex, this was a sex tape.

- Yeah. But, okay, you're considering Gawker. I I thought new media, I thought you said post

- It on the internet. No, I'm talking about new media in the sense like, like like social media. A little guy who

- Yeah.

- Who po post post things just because he's interested it may not really.

- Okay, I see, I see, I see. Gawker at least has to maintain an audience. I gotcha's

- Hard to know. I think the Gawker case, the one the bankrupted guer, yeah. Having to do with the, I believe Hulk Hogan sex tape. Correct. There, I think it fit pretty neatly into the the traditional, traditional, oh that principle that there's not really a ma much legitimate public concern. Oversimplify here, the case was more complicated than that. There's not really much in legitimate public concern about in how a person looks while they're having sex. So, so in any case, so as a general matter, courts historically have read it pretty narrowly and the Supreme Court has nudged in that direction as well. So the most famous case on this is Florida Star, VBJF. And that involved the publication of the name of a, of a rape victim. This woman tells the p police she's been raped. The police department has a policy of not including the names of rape victims in the crime report that is then passed along to local media outlets, the reporters in the newsroom or such as it is of the local police station. But this policy wasn't followed in that instance, just there was a school on, it was an accident.

- Yeah.

- And then Florida Star, a weekly newspaper in Jacksonville publishes in its police reports section the, something about this incident, including this woman's name. So she then sues under a Florida statute that specifically prohibits the publication of the, of the names of rape victims or even just of alleged rape victims. Adam. And in particular the Supreme Court said that generally speaking, there can't be privacy claims based on information drawn from government records. Classic example is a court record Filing in court, which often in a, in a various cases has a lot of personal details about people or a police report or something else released by the government that people should be able to say, look, if the government releases it, we are entitled to publish it without then having to worry about whether, well, is this something that might be seen as private, is it might violate some, some state law. And that's a very important protection. It's of course not. Categorical protection doesn't invalidate the dis the disclosure torts and the Supreme Court made clear, it wasn't categorically saying you can never have any privacy claims, but at least generally speaking, it can't have such claims with regard to information drawn from government records, even when it is something that a lot of people would fight extremely private and sensitive and offensive when, when published to the world, such as the name of a, of a, of somebody who's alleging that she'd been raped. So, so that's just a reminder that the disclosure tort has been narrowed. Again, that's not quite a disclosure tort case, but its logic would apply to disclosure tort claim brought on the same facts as well. It hasn't been eliminated. Most states, almost all states that have considered it have accepted it. A handful, I wanna say four or five have rejected it. But almost all states have ha that have considered it, have accepted it, but it does look like it's pretty narrow in scope. So that leaves the last two, two torts, two privacy torts. And by the way, Jane, you talked about, you gave the restatement of torts definitions. That's absolutely correct. Again, for the benefit of a non-lawyer readers, the restatements are a, are an interesting, interesting kind of of work. They're not statutes, they were never enacted by a legislature, but neither are they, like a treatise, which would be written by one legal academic, let's say usually, or sometimes historically, one lawyer, sometimes historically judges have written treatises, which is just the view of one person, although sometimes it's extremely influential. For example, the Nier treatise pioneered by UCLA professor Mel Nier and, and now published by his son David Nier, who's a very prominent copyright lawyer and scholar is a very influential criticism. Copyright. But that's just one person speaking or maybe a couple of co-authors speaking. The restatement is something almost in between. There's an organization called the American Law Institute, and it is a organization of judges, lawyers, and legal academics. And they take on, it's, it's over a century old. They, they take on the, these projects of restating the law, which is usually not always, but usually it is summarizing it is summarizing the, the common law in, in certain areas. And one, one of their signature publications, the restatement of torts. We're now getting to the restatement third of torts, which is being worked on by ris, by Ris Ky, who's a colleague of yours, Jane

- And former guest of ours.

- Exactly. And former guest and former Dean and Robert Post, who's also a, a prominent First Amendment scholar, also former dean, former dean. He's a, he is a professor and former dean at Yale. Yale. So they're working on restatement third of torts, defamation and privacy. And the way it works is you have these reporters, again, kind of a weird, weird usage special specific to American law. They're the reporters who draft something with input from the members consultative group for that project. And then eventually it has to be approved at the annual meeting of the a LI often it's approved somewhat piecemeal. And, and then it becomes this thing called a restatement. That's still not the law, but many courts will say, we adopt the restatement formulation. They almost never say we adopt formulation from a treatise or we adopt a professor's formulation from a journal article. But they will sometimes say, we adopt the restatement formulation. And at that point it becomes incorporated into the law, into the law of that state. Because courts say yes, you know, we think a LI is a very respectable organization. We think they did a really good job summarizing this. So the a LI is acceptance of the proser for torques model gave it extra heft. So the, so a third one of these torts is a so-called false like tort. So here's the how the restatement articulates the false like tort one who gives publicity. So again, Jane, as you pointed out, this doesn't extend a kind of personal gossip to friends. It requires giving publicity like putting, putting on the internet or in a newspaper to a matter concerning another that places the other before the public in a false light is subject to liability for the other, I'm sorry to the other, if the false light would be highly offensive to a reasonable person and the actor knew the statement was, was false or was reckless about that possibility. So it's a false slight. Now why do we need a false light tort? Don't we already have a, we don't just, we don't, I have tend to agree, but don't we already have a tort that deals with false statements about other people called defamation? And for that reason, some courts have rejected the false light tort. But the main difference between false light and defamation is defamation is usually limited to statements that are the damage a person's reputation, that's the real harm, reputational harm. There are some statements that are false about another person that generally wouldn't damage a person's reputation, but might still be so offensive that that person ought to be able to recover for the injury to his feelings without concern. Injury to reputation

- Splitting hairs, in my opinion. Maybe, maybe,

- But so for example, dam damaged reputation is generally seen as potentially so serious that setting aside public officials and public figures, people can recover for even negligent falsehoods about, especially if the damaged reputation will be evident on the face. The theory being, look, if you're say a newspaper and you're publishing someone and you know it's an accusation of some serious offense, you really need to take good care to make sure you don't accidentally ruin this person's career or business or even personal life. But in a situation where, you know, it's something about their age, maybe about their religion, about some other things which doesn't seem on its face likely to damage reputation. We don't wanna, we don't want, we still would like you to limit yourself to the truth, of course, but we don't wanna to unduly chill your ability to, to report about people by, by holding a liable on a negligent standard. So that's why, for example, even for private figures, the standard of the false light door is recklessness or knowledge. So here's an illustration from, from the, from the restatement. So a is a war hero distinguished for bravery in a famous battle. B makes a movie about a's life in which he includes some narrative of fictitious details of this person's life. But those, those narratives, those facts aren't, don't reflect badly on the subject. They may in fact place the person in a better light than than he otherwise would've. It may unduly false, false positive

- Light

- Pardon

- False positive light,

- Right? May, may inflate this person's reputation. It's not defamatory 'cause it doesn't damage this person's reputation, but it may make this person feel quite offended. Like, here you're purport to be telling my life this is not a fictionalization this this claims to be articul de describing a real story. And, and, but, but you've, you've made this stuff up and that makes me feel understandably bad. And courts do allow liability in that, that is in fact drawn from, from, there's a set of such cases, the most famous of which is the Warren Spawn case. Warren Spawn was a, a great baseball player and I know that he was a great baseball player because I have no interest in baseball. And, and he played well before, before I had my very brief time interested in baseball back when I was in my, like when I was 10 to 12. And even so I remembered I had heard his name. He was a great pitcher apparently for the Boston Braves and Milwaukee Braves. In any case, this was, by the way, you can tell it's old because there are no more Boston Braves in Milwaukee Braves right now. Right. And he fought in World War ii and there was a, there was a children's book about the little biography of him that portrayed him as this great war hero. And he said, that's offensive. I was not a great war hero, I was just a soldier like everybody else. I do not want to claim heroism that I'm not entitled to. And he sued and the court was at least open to, to allowing this claim on the theory that it put him in a false light. Again, if it was just carelessness, well then there, at least in the restatement formulation, there wouldn't be liability. You could have liability knew for carelessness, for defamation because it's so important to protect reputation, but not for careless putting someone in a false light. But when it comes to WW I'm sorry when it comes to knowing or reckless false splits, if they knew, you know, this didn't happen, but we just wanna sell more books. Well that's just not something you should be doing. Interestingly, by the way, well it's still sometimes called false light invasion of privacy. It, I think to most of us today, it doesn't even sound like privacy much, right? It's, it's about a person who is very well known. It is about incidents in his life that if true would not have been viewed as private. And the claim was he got medals, which would've been, would be record.

- And usually think people think of privacy as being about some true fact about you. That you want to be, you know, just to keep out of the public of the public domain or public light, so,

- Right. Yeah, exactly. So, so you could have a kind of a factual assertion about someone that would, that if true, would never be seen as, as disclosure of private facts simply because it's not something that's really embarrassing to have to have revealed about you. But if false could lead to false light liability, because the real harm in false light is not that, it's that it invades some super private space about you. It's that it's a combination of falsehood. So that lacks value and it's about you. And people should be entitled not to have sports about certain facets of their lives. Said not because of a concern about privacy as such, but more of a sense that it is my life and you shouldn't be making enough stuff about my life like it's private property in that respect, even as the things that we, that we think would be of legitimate public concern wouldn't be really kind of seen as traditional intrusions in privacy. That's why I don't like to talk about the false light invasion of privacy tort, I call it, and other others do the same. Call it the false light tort. By the way, some people think one difference between false light and defamation is the defamation requires false statements, whereas false light sounds like it includes things that are nearly misleading, that are literally true. But put someone in a false light occasionally, you see this distinction drawn. That's not really much of a difference. Here's not among other things, because it, as you, we talked about in the last episode about libel, if something is misleading enough about someone, then it's viewed as tantamount to false because everybody would be misled led into this misunderstanding of, of this person that it would be a false understanding of, of what's supposedly happen.

- Right? Like the case where it sounded like the guy shot his, his wife's lover, even though it was just a party in the living room that

- You told us about. Right? Right. I believe it was the woman who shot someone, she, her husband's lover.

- Oh, okay. So, pardon me. Alright.

- Usually, okay, usually it is the guy who does the shooting. But in this, I guess I was

- Apparently must I, I was using some gender stereotypes, I must

- Admit. Right, right, right. Like many stereotypes, they're generally active, but sometimes not. So that's the false, like tot And then that brings us to the last of these, which is sometimes called the right of publicity, which by the way is almost a subtle dig at the privacy formulation. It's like saying, you know, we're actually gotta acknowledge it. It's really almost the opposite of, of a invasion of privacy. And sometimes it's called perhaps more act, more descriptively misappropriation of name or likeness. So here's by the way, the way the restatement articulates it, and this is a reminder that sometimes the one line summary of a legal rule is much more misleading, misleading, misleading than leading in the right direction. So the rest statement says, one who appropriates to his own user benefit, the name or likeness of another is subject to liability to the other for the invasion of his privacy. So it sounds like a categorical rule, like if it's your name or likeness and I use it for my benefit, by the way, it doesn't even say commercial benefit, my benefit, Then I'm liable. So what's an, what would be the clearest example of my appropriating and the name or likeness of another for my own user benefit? Let's say I write an unauthorized biography of, of some person Jane Bamb Bauer, right? The untold story. And then I have a big picture of Jane Bamb Bauer on the cover because after all that, what, that's what what needs to sell books. And also I think people will better, better see that it, that it's indeed about, about you. You might be quite upset. I think you, if you are upset, probably that'll be the end of this podcast. So I'm not gonna do it because I, I respect you and I want our fruitful partnership to continue. But if I were to do that, you couldn't sue me for that. Unauthorized biographies are fully protected by the First amendment and generally speaking, Tola doesn't even purport to go after them, even though that is something where the entire book would be, wouldn't exist if it weren't for its subject. And it often draws the great bulk of its sales just from the interest in the subject. Occasionally there are biographies that that bring back or, or that talk about someone unknown because their life is so interesting. Well, there you might say, doesn't really turn on this person's fame, although it's still are using their name a likeness. But sometimes if it's somebody super duper famous, if somebody were write Taylor Swift, the unauthorized biography, probably most people would buy it because they know of Taylor Swift and they're interested in her life already. Or another example, how about newspapers? Newspapers are commercial enterprises, at least they seek to be profit making enterprises. Sometimes they fail increasingly, but, but they are writing stories that routinely use another person's incidents of their lives, including name or likeness to sell newspapers. That's particularly true for magazines which may be, let's say People magazine or other such magazines are really about people, right? It's, they're on, they're in the title and will will write stories about this person. My guess is that very often the, the person is quite eager to have the story written about them, but they're entitled to write this about the person and, and people will buy it because they see their favorite celebrity or maybe they're the celebrity they left to hate on the cover. But even a newspaper might have a big banner or headline about somebody accused of some crime and they're using against this person's name or like likeness to, so, so what has really emerged in the context of this rite of publicity or appropriation of name or likeness is that it has been limited to mostly three categories. And I oversimplify one is commercial advertise if I appropriate somebody else's name or likeness in commercial advertising for soap or a TV set for pretty much anything other than for a book about it. But basically for commercial advertising, for some product, that's something that would lead to to to very strong generally speaking misappropriation claim. Yeah.

- And that's true even if you're not, that's true, even for the plaintiff who's not a celebrity, it's not even like their it's name recognition or anything. Exactly. But they're trading on. Exactly. But this was like, this was the, so this goes back to the very first privacy claim exactly. Filed where a woman Rob Ms. Robeson suddenly discovered that her face was on a bag of flour. Right, right. Or a flower advertisement. So yeah,

- Right. So, so those claims will generally, these days, these days prevail. Again, note this is not the kind of privacy we're talking about in disclosure of private facts. The name and likeness may not be a private fact. In fact, if it, it is a, if it is using the name and likeness of celebrity, it may be the least private facts out there, right? The Tom Cruise's name and likeness are about, as unprivate a fact as possible. But that doesn't mean that I can use Tom Cruise's name to, to advertise, I dunno, whatever, whatever one might want an airline right. Top Gun, although actually if I were to fly in an on an air airline, I would not want them to do the maneuvers from Top Gun. So I'm not sure, but it, but whatever I want to use to Tom Cruise's name or likeness to sell, I better get his permission. A second category is what we might loosely call merchandise, t-shirts, coffee mugs, maybe also prints to hang on the wall, although that's actually more borderline. We'll explain what's on the other side of the border shortly. But those are things that generally, the sense is that's not advertising, right? It is itself fully protected speech in some respects. But still, if all I'm doing is if I'm just presenting this person's, this person's name and likeness, really that's just all that's going on. There is a t-shirt with a picture of Taylor Swift Le let's say then in that case, that is probably an infringement of her rights. And a third category. The only one that actually went up to the US Supreme Court is when basically you produced someone's entire act. There was this famous case, zucchini involving Hugo Zucchini, the human cannonball, where he, his act was being shot out of a cannon at various circuses and similar events and some television station broadcast. The whole act in a very positive way. But, but he sued and the court said, yeah, he's got, it's kind of like a property, right? In his performance, it's not quite copyright infringement because it's because those acts are not protected by copyright, generally speaking. What? No, basically people should be able to, to, to, to stop other people from broadcasting their whole, their whole acts. There's a, there's a subset of that having to do with Elvis impersonators. There's a whole body of case law involving Elvis impersonators and others who basically just kind of take somebody else's act. So all of these involve using someone's name or likeness for commercial purposes. There are few situations where it might be liability for non-commercial use, but really very rare. So what's in the other side? Well, anything that is seen, and there are all these categories that are listed. News, entertainment, nonfiction accounts, fictionalized accounts, right? What about Forrest Gump or Midnight in Paris or other movies which have real people supposedly as characters? Clearly it's fiction. So there's no false slight claim because everybody would understand It's just fiction. It doesn't really display anything private about them. Doesn't display nude photos of them or some such. It does use their name and likeness for commercial reasons, but the courts say no, no, that, that just doesn't count. That's not an improper kind of use that once. Well, because

- Part of, yeah, I, I mean it, it's, it's not improper in part because it is its own creative work, right? Like it, it, I guess the, the term maybe you're getting to this, the term that courts often look for is transformative.

- Like well, sometimes they look for look for, for transformative. That's right. Yeah. Borrowing it from some, some aspects of copyright law. Right. But yeah, the sense is if it's something that is kind of a full fledged, respectable first amendment protected work, a book, a movie, a song. I remember Mrs. Robinson or mentions Jodi Maggio, this is the Paul Simon song. Well, I don't know how many of our listeners remember, but some of them are probably our age. They, they know used to be, used to be very big. Apparently I'm told that Joe Diaggio was kind of upset at the use. I don't know if he was ever contemplating suing until, until I think it was made clear that this was a favorable use. Like where have you gone? Joe Diaggio or Nation Turns It's Lonely Ice. You sort of using him as an icon of, of, of, of, of kind of, of not maybe heroism, but kind of, of, of American greatness. So, so in any event, songs, movies, books, biographies and such, clearly fully protected by the First Amendment in part, I think as, as you point out, because they actually, they do add a lot beyond just the name, a likeness. They're not just like the T-shirt. Of course. Then you ask, well, what about things that are in the middle? Like what about a painting? Is that like a t-shirt? It's just maybe a painting of this one person, maybe a few people. And you know,

- Or I thought you were going to say, what about a video game

- Depict? Oh, I was gonna say one.

- Okay. An athlete doing, playing his sport. Right,

- Exactly. And there are some courts that say, yes, you know, painting is fully protected by the First Amendment. Not right of publicity infringements. Others say, well, a print of just the image of the three stitches, well, that is not protected 'cause it's not transformative enough. There's a case

- Involving - A Hallmark card with Paris Hilton's image and kind of what used to be for a while for a signature joke from, from our TV show. And the court allowed that to go forward, even though you'd think like if it were a comedian doing impersonations even of someone or jokes about someone on Saturday Ad Live or some such, you'd think, well, no, isn't that protected? So there are these vague lines and,

- And

- Especially when it comes to video games, that indeed there are some cases that say, well, a video game, essentially, essentially a sports video game, a fantasy game where you can put together teams from, from various sports greats that infringes the sports greats, right. Of publicity right against Bib Circle creation, even if they don't actually use this person's name or like, but just identify them clearly by say, number and general body type and such. That's say Jersey number and the name of the team, right? So, so fans would understand, but on the other hand, there are other courts that say, well, first of all, the Supreme Court has said in a non-white publicity context, the video games are fully protected by the First Amendment, and sometimes the courts do allow some protection for, for video games. So there's a good deal of uncertainty among, excuse me, along this, this vague line between fully protected media and ones that are viewed as mere merchandising. But at the same time, there's also a lot of certainty. One is that commercial advertising, you can't use somebody else's name or likeness. Again, not because it's private in the sense of being embarrassing or kind of like it's an invasion of privacy in the normal sense, just to mention the person's name or likeness. But it's private in the sense of belonging. Like the name and likeness belongs to them. You can't use it. Internet likewise for t-shirts pretty well established that you, that you can't print a t-shirt and sell it with someone's name and likeness without their permission, unless it's really a parody or something else. Highly transformative like that. On the other side is books, movies, and the like. Yeah, absolutely. You could sell unauthorized biographies. And then there's this vague area about prints, about greeting cards, about paintings, about video games where the law is uncertain. You'd think since it's the First Amendment issue, Supreme Court would've stepped in. Really basically in all these areas, it hasn't much stepped in except in unusual situations like zucchini, which involved this very specific right of publicity as a right to control one's entire act or Florida Star VBJF, which include all the very specific statute focused on a very, with a very particular fact pattern of where it's the, the person got the information, the name of the rape victim from, from government records. So I'd like to see the Supreme Court step in and just clear things up a bit, although sometimes it steps in and muddies the waters further, but it has, neither of those have happened yet.

- Yeah. Although, although so, so we, we've been focusing on this episode on the torts. There are now lots of privacy statutes and the

- Supreme Supreme Court has taken are one of the people who has most written about this.

- Well, I guess that that might be right. And, but the Supreme Court also has taken up privacy statutes a little more frequently and more recently. So, but, but maybe, I mean, but, but, but in many ways what the statutes do are, you know, there's sort of variants on some of the themes that have come up and been kind of explored through tort law anyways. And so ultimately the statutes are still trying to control either who gets to collect data initially or who gets to disclose it. I mean, you can kind of see it in, you know, in, in the, in those two stages and it covers most of the field, but I think we probably would try our audience's patients if we went into privacy statutes right now. So maybe we'll have to come back and talk about

- Maybe, so

- HIPA and FERPA and all sorts of other privacy laws like biometric privacy rights, and there are a lot of fun, you know, high tech, high tech problems that have been treated through statute or, or, you know, digital advertising and, and Right. DDPR or style of laws that we can come back and talk about. But, but I think, but I think some of the problems explored that we explore today where there are legitimate interests in sharing information and they run up against legitimate interests in keeping information controlled are, you know, the, the, those themes are, are, are going to be very similar in the statute of context

- In many ways. And yeah, so, so this is already quite long for one of our episodes and, and that just reflects what a complicated and just the one, the, the one thing you might away a multifaceted question, this is, this isn't like even free speech and I don't know fighting words, I don't think we've had an episode just on that, but it's basically about just face-to-face personal insults. We can cover that quickly. Even free speech and libel, there are a lot of complications there, but it is basically about false statements that damage someone's reputation. Here. There isn't even innovation of privacy. One invasion of privacy torque. Really to make it

- Make - Sense, you have to split it up into at least four categories and that's just focusing on the tor part. So yeah, free speech and privacy. Interesting thing. I think a lot of the people who like free speech also, like privacy, at least from the government and a lot of people like privacy, like free speech, and I think that's good. But I do think we have to acknowledge that it is complicated because sometimes the two are in real tension with each other.

- Yep.

- Well, Jane, great pleasure as always.

- Great to see you Eugene.

- Talk to you again soon.

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