Invasion of Privacy

Invasion of Privacy.—Governmental power to protect the privacy interests of its citizens by penalizing publication or authorizing causes of action for publication implicates directly First Amendment rights. Privacy is a concept composed of several aspects.1056 As a tort concept, it embraces at least four branches of protected interests: protection from unreasonable intrusion upon one’s seclusion, from appropriation of one’s name or likeness, from unreasonable publicity given to one’s private life, and from publicity which unreasonably places one in a false light before the public.1057

1056 See, e.g., WILLIAM PROSSER, LAW OF TORTS § 117 (5th ed. 1984); Prosser, Privacy, 48 CALIF. L. REV. 383 (1960); J. THOMAS MCCARTHY, THE RIGHTS OF PUBLICITY AND PRIVACY (1987); THOMAS EMERSON, THE SYSTEM OF FREEDOM OF EXPRESSION 541-61 (1970). It should be noted that we do not have here the question of the protection of one’s privacy from governmental invasion.

1057 Restatement (Second), of Torts §§ 652A-652I (1977). These four branches were originally propounded in Prosser’s 1960 article, incorporated in the Restatement, and now “routinely accept[ed].” McCarthy, § 5.8[A].

While the Court has variously recognized valid governmental interests in extending protection to privacy,1058 it has at the same time interposed substantial free expression interests in the balance. Thus, in Time, Inc. v. Hill,1059 the Times privilege was held to preclude recovery under a state privacy statute that permitted recovery for harm caused by exposure to public attention in any publication which contained factual inaccuracies, although not necessarily defamatory inaccuracies, in communications on matters of public interest. When, in Gertz v. Robert Welch, Inc.,1060 the Court held that the Times privilege was not applicable in defamation cases unless the plaintiff is a public official or public figure, even though plaintiff may have been involved in a matter of public interest, the question arose whether Hill applies to all “false-light” cases or only such cases involving public officials or public figures.1061 And, more important, Gertz left unresolved the issue “whether the State may ever define and protect an area of privacy free from unwanted publicity in the press.”1062

In Cox Broadcasting, the Court declined to pass on the broad question, holding instead that the accurate publication of information obtained from public records is absolutely privileged. Thus, the State could not permit a civil recovery for invasion of privacy occasioned by the reporting of the name of a rape victim obtained from court records and from a proceeding in open court.1063 Nevertheless, the Court in appearing to retreat from what had seemed to be settled principle, that truth is a constitutionally required defense in any defamation action, whether plaintiff be a public official, public figure, or private individual, may have preserved for itself the discretion to recognize a constitutionally permissible tort of invasion of privacy through publication of truthful information.1064 But in recognition of the conflicting interests—in expression and in privacy—it is evident that the judicial process in this area will be cautious.

1058 Time, Inc. v. Hill, 385 U.S. 374, 383 n.7 (1967); and id. at 402, 404 (Justice Harlan, concurring in part and dissenting in part), 411, 412-15 (Justice Fortas dissenting); Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 487-89 (1975).

1059 385 U.S. 374 (1967). See also Cantrell v. Forest City Publishing Co., 419 U.S. 245 (1974).

1060 418 U.S. 323 (1974).

1061 Cf. Cantrell v. Forest City Publishing Co., 419 U.S. 245, 250-51 (1974); Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 490 n.19 (1975).

1062 Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 491 (1975).

1063 More specifically, the information was obtained “from judicial records which are maintained in connection with a public prosecution and which themselves are open to public inspection.” 420 U.S. at 491. There was thus involved both the First Amendment and the traditional privilege of the press to report the events of judicial proceedings. Id. at 493, 494-96.

1064 Thus, Justice White for the Court noted that the defense of truth is constitutionally required in suits by public officials or public figures. But “[t]he Court has nevertheless carefully left open the question whether the First and Fourteenth Amendments require that truth be recognized as a defense in a defamatory action brought by a private person as distinguished from a public official or public figure.” 420 U.S. at 490. If truth is not a constitutionally required defense, then it would be possible for the States to make truthful defamation of private individuals actionable and, more important, truthful reporting of matters that constitute invasions of privacy actionable. See Brasco v. Reader’s Digest, 4 Cal.3d 520, 483 P.2d 34, 93 Cal. Rptr. 866 (1971); Commonwealth v. Wiseman, 356 Mass. 251, 249 N.E.2d 610 (1969), cert. denied, 398 U.S. 960 (1970). Concurring in Cohn, 420 U.S. at 497, Justice Powell contended that the question of truth as a constitutionally required defense was long settled in the affirmative and that Gertz itself, which he wrote, was explainable on no other basis. But he too would reserve the question of actionable invasions of privacy through truthful reporting. “In some instances state actions that are denominated actions in defamation may in fact seek to protect citizens from injuries that are quite different from the wrongful damage to reputation flowing from false statements of fact. In such cases, the Constitution may permit a different balance. And, as today’s opinion properly recognizes, causes of action grounded in a State’s desire to protect privacy generally implicate interests that are distinct from those protected by defamation actions.” 420 U.S. at 500.

Continuing to adhere to “limited principles that sweep no more broadly than the appropriate context of the instant case,” the Court invalidated an award of damages against a newspaper for printing the name of a sexual assault victim lawfully obtained from a sheriff’s department press release. The state was unable to demonstrate that imposing liability served a “need” to further a state interest of the highest order, since the same interest could have been served by the more limited means of self regulation by the police, since the particular per se negligence statute precluded inquiry into the extent of privacy invasion (e.g., inquiry into whether the victim’s identity was already widely known), and since the statute singled out “mass communications” media for liability rather than applying evenhandedly to anyone disclosing a victim’s identity.1065

1065 The Florida Star v. B.J.F., 491 U.S. 524 (1989).

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