Invasion of Privacy and Free Speech

It is generally understood that the constitutional right of privacy has two components: decisional privacy, illustrated by the abortion cases, and ‘‘information privacy’’—namely, the capacity of each person to control certain types of information about himself or herself. Many of the decisions addressing the constitutional dimensions of privacy and free speech concern information privacy. A third type of privacy interest—the interest in tranquility and repose, sometimes described as the ‘‘right to be left alone’’—has also figured in a number of cases presenting conflicts between speech interests and privacy.

At one level, it makes perfect sense that one’s right to speak freely about all First Amendment matters might run up against another’s interest in protecting personal information from disclosure. Indeed, addressing this tension between speech and privacy has proven to be an important focus of Supreme Court jurisprudence and will be discussed here.

Yet, a right of privacy is undoubtedly central to any meaningful conception of a right of speech. Consider that in order for most people to speak with confidence, they must have space and time to reflect out of the public eye. If one’s thoughts, writings, or intimate communications were unprotected from prying eyes and ears, it would be most difficult to develop coherent ideas.

Moreover, consider the constitutional freedom of assembly. Suppose state officials secretly recorded all meetings of the ‘‘Organizing Committee to Replace the Government.’’ If permitted, such unwarranted intrusions into private spaces—spaces necessary for peaceful organizing—would undermine the capacity of citizens to associate and to express themselves effectively against government repression.

A case arising out of the civil rights movement vividly illustrates the close connection between privacy and associational rights. In NAACP v. Alabama, 357 U.S. 449 (1958), a state government vehemently opposed to desegregation demanded the membership lists of the local NAACP. The organization refused, fearing the government would harass its members. The Supreme Court held that Alabama could not obtain the lists without first demonstrating a compelling reason, such as criminal behavior, but the state could not.

Nonetheless, sometimes privacy interests collide with First Amendment speech claims. Recall that one of the rationales undergirding the right of free speech is that it protects the search for truth. Does the Constitution therefore protect truthful publication of information lawfully obtained, even when publishing that information invades someone’s privacy? This question has provoked much debate.

For example, many states allow individuals to sue those who publicly portray them in a ‘‘false light’’— false but not defamatory assertions that invades an individual’s privacy. When the portrayed events are ‘‘newsworthy’’ on matters of public concern, such as crimes or public events or about ‘‘public figures,’’ claimants alleging invasion of privacy must meet a higher standard of proof than mere negligence: generally, that the false statements were made deliberately or recklessly.

Conflicts between privacy and speech interests have also arisen in the context of statutes prohibiting publishing rape victims’ names. Although recognizing the important interest in shielding rape victims from shame or public exposure, the Supreme Court has not allowed states to punish for the publication of victim names when the names have appeared in public records. One case involved identification of the victim’s name in transcripts of court proceedings; another involved careless posting of the victim’s name on a bulletin board accessible by reporters. In each instance, the Court held that the state could not punish subsequent publication of the victim’s name.

The Court has taken a somewhat different approach to state efforts to protect the kind of privacy defined as tranquility or repose against free speech challenges. When municipalities have sought to protect residential ‘‘privacy’’ by banning all solicitation, marches, or literature distribution, the Court has held that the interests in free communication forbid outright bans. Yet, cities may enact limited protections for residential privacy. For example, sound trucks carrying booming amplifiers may be prohibited in residential communities in order to shield residents from noise intrusions.

In attempting to balance abortion protesters’ rights to march through residential areas against the privacy interests of residents, the Court has allowed municipalities to forbid picketing ‘‘targeted’’ at specific residences, but not to ban residential picketing altogether.

Furthermore, when lower courts enter injunctions to protect patient access to abortion facilities, the injunction may be framed to protect the tranquility of the patients. Judicial efforts to balance the competing claims of patient tranquility vs. speech interests have led to injunctions protecting only against yelling or amplified noise near abortion clinics during clinic hours, but not signs, since patient windows may be screened.

The limited recognition of an individual’s interest in tranquility has also arisen under the guise of a related doctrine, the ‘‘captive audience.’’ The idea is that, generally, people who do not want to be exposed to objectionable communications should be able to shield themselves from repeated intrusions. As long as the communications occur in public spaces, the speech interest generally prevails since individuals can typically avoid exposure.

However, no speaker has a right to force others to listen to his message. This rationale explains the Rowan case, which upheld the right of citizens who objected to offensive mailings to ask the Postal Service to order the mailer to remove their names from future solicitations. Other courts have upheld statutes that forbid telemarketers from calling once they have been individually told not to. Although marketers have challenged the constitutionality of ‘‘do not call lists’’—in which those who do not wish to be contacted by telephone solicitors may list their phone numbers on a general registry—such restrictions will likely be upheld since they protect residential and consumer privacy.

In sum, the complex interplay of different conceptions of privacy and free speech forestalls formulistic descriptions of how these cases will be resolved. Privacy is central to a coherent approach to freedom of speech, yet often one person’s interest in keeping personal information private or being free of intrusive communications conflicts with others’ interest in unfettered speech. With increasingly sophisticated surveillance technologies, these latter conflicts will undoubtedly continue to proliferate.

JOHN T. NOCKLEBY

References and Further Reading

• Prosser, William L., Privacy, California Law Review 48 (1960): 383.
• Singleton, Solveig, Privacy Versus the First Amendment: A Skeptical Approach, Fordham Intellectual Property, Media & Entertainment Law Journal 11 (2000): 97–153.
• Stohl, Matthew, False Light Invasion of Privacy in Docudramas: The Oxymoron Which Must Be Solved, Akron Law Review 35 (2002): 251.

Cases and Statutes Cited

• Cox Broadcasting v. Cohn, 420 U.S. 469 (1975)
• Florida Star v. B.J.F., 491 U.S. 524 (1989)
• Frisby v. Schultz, 487 U.S. 474 (1988)
• Griswold v. Connecticut, 381 U.S. 479 (1965)
• Madsen v. Women’s Health Center, 512 U.S. 753 (1994)
• Mainstream Mktg. Servs. v. FTC, 358 F.3d (1228)(10th Cir. 2004)
• Martin v. Struthers, 319 U.S. 141 (1943)
• NAACP v. Alabama, 357 U.S. 449 (1958)
• Nat’l Fed’n of the Blind v. FTC, 420 F.3d 331 (4th Cir. (2005)
• NY Times v. Sullivan, 376 U.S. 254 (1964)
• Roe v. Wade, 410 U.S. 113 (1973)
• Rowan v. United States, 397 U.S. 728 (1970)
• Schneider v. State, 308 U.S. 147 (1939)
• Time, Inc. v. Hill, 385 U.S. 374 (1967)

See also Abortion; Abortion Protest Cases; Captive Audiences and Free Speech; Compelling State Interest; Defamation and Free Speech; False Light Invasion of Privacy; Intellectual Influences on Free Speech Law; Intrusion; Matters of Public Concern Standard in Free Speech Cases; NAACP v. Alabama Ex Rel. Patterson, 357 U.S. 449 (1958); National Association for the Advancement of Colored People (NAACP); Picketing; Public Figures; Public Forum Doctrines; Rowan v. United States Post Office Department, No. 399, 397 U.S. 728 (1970); Time, Place, and Manner Rule