1. See Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974).
2. Technically the doctrine to which I refer should be called the "public figure and public official doctrine," since it covers both public figures and public officials. For simplicity's sake, I will shorten it to the "public figure doctrine."
3. I use the term "tort actions for invasion of privacy" to refer to tort actions seeking damages for the publication of private information by the press. Such actions include both the common-law torts of false light and public disclosure of private facts, recognized by the RESTATEMENT (SECOND) OF TORTS § 652A (1976); actions created by statute, such as the damages claim created by the wiretapping statutes considered in Bartnicki v. Vopper, 532 U.S. 514 (2001); and negligence per se claims such as that at issue in Florida Star v. B.J.F., 491 U.S. 524 (1989). I do not cover privacy claims that do not focus on publication (such as physical intrusion), or those that focus on the commercial value, rather than the private nature, of the information (such as trade secret or misappropriation actions).
4. 532 U.S. 514, 535-41 (2001) (Breyer, J., joined by O'Connor, J., concurring).
5. See infra Part 1II.
6. 532 U.S. 514.
7. 376 U.S. 254 (1964).
8. Id. at 279-80.
9. Rosenbloom v. Metromedia, Inc, 403 U.S. 29 (1971). The Court has used varying language, including matter of public concern, of public interest and of public significance. This Article treats these terms as synonymous.
10. 418 U.S. 323 (1974).
11. Id. at 348.
12. See, e.g., Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 755-63 (1985) (holding that in private figure cases, the level of protection varies on whether the matter is one of public or private concern).
13. Rosenblatt v. Baer, 383 U.S. 75, 85 (1966). The Court has made clear that not everyone on the government's payroll is a public official, but it has held that, at the "very least," it includes those with substantial control over public affairs. Id. For a more detailed discussion of the Court's public/private person jurisprudence, see Susan M. Gilles, From Baseball Parks to the Public Arena: Assumption of the Risk in Tort Law and Constitutional Libel Law, 75 TEMP. L. REV. 231 (2002).
14. Gertz, 418 U.S. at 344-45. The Court has identified three types of public figures: "all purpose public figures" whose "pervasive fame or notoriety" makes them public figures in all contexts; "limited [purpose] public figures" whose decision to "thrust themselves to the forefront of particular pubic controversies" subjects them to public scrutiny on that issue; and the exceedingly rare "involuntary public figure" who acquires public status "through no purposeful action of his own." See Gilles, supra note 13, at 248-60 (discussing in detail the various types of public plaintiffs and the tests used to identify them).
15. Gertz, 418 U.S. at 343-45. For a more detailed discussion of the Court's public figure jurisprudence, see Gilles, supra note 13, at 237-60 (discussing the Court's assumption-of-the-risk rationale).
16. Gertz, 418 U.S. at 344-45. The Court characterized self-help as the less important of the two rationales. Id. at 344.
17. Id. at 344-45.
19. Id. at 345.
20. Id. at 344.
21. Id. at 345.
22. Id. at 344.
23. Id. at 346; New York Times Co. v. Sullivan, 376 U.S. 254, 279-80 (1964).
24. New York Times Co., 376 U.S. at 279-80.
25. One study estimated that just over eighty percent of defense motions for summary judgment based on plaintiffs' lack of evidence of actual malice were granted; and in those cases where plaintiffs survived pretrial motions and recovered at trial, appellate courts reversed pro-plaintiff judgments for lack of proof of actual malice in sixty-six percent of appealed cases. See Susan M. Gilles, Taking First Amendment Procedure Seriously: An Analysis of Process in Libel Litigation, 58 OHIO ST. L.J. 1753, 1774-79 (1998) (reporting on the statistical findings of the Libel Defense Resource Center and other researchers).
26. Nat Stem, Unresolved Antithesis of the Limited Public Figure Doctrine, 33 Hous. L. REV. 1027, 1028 (1996). See also David A. Anderson, Is Libel Law Worth Reforming?, 140 U. PA. L. REV. 487, 488 (1991) (noting that "[most victims of defamation cannot meet the actual malice requirement").
27. See Gertz, 418 U.S. at 347; RODNEY A. SMOLLA, LAW OF DEFAMATION § 3.30 (2d ed. 1998) (discussing the various standards adopted by states after Gertz).
28. There are four common-law privacy torts; however only the two that punish the publication of private information (false light and disclosure of true private facts) are discussed in this Article. For the standard definition of these privacy torts, see RESTATEMENT (SECOND) OF TORTS § 652A (1976).
29. 385 U.S. 374 (1967).
30. For the standard definition of the false light tort, see RESTATEMENT (SECOND) OF TORTS § 652E (1976):
One who gives publicity to a matter concerning another that places the other before the public in a false light is subject to liability to the other for invasion of his privacy, if: (a) the false light in which the other was placed would be highly offensive to a reasonable person, and (b) the actor had knowledge of or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the other would be placed.
At issue in Time, Inc., was an action for a false or fictitious report created by statute. 385 U.S. at 376 n.1. While the statute, on its face, prohibited any commercial use of another's name or image without written consent, the New York courts had construed it to cover false speech. Id. at 383-84 (citing New York caselaw). Thus the Supreme Court concluded that New York law gave an action to a public or private person whose "name, picture, or portrait is the subject of a fictitious report or article." Id. at 384-85.
31. RESTATEMENT (SECOND) OF TORTS § 652E. Comment b to that section discusses the relationship between false light and libel. Id. at cmt. b. For an argument that any similarity between the two torts is superficial, see Diane Leenheer Zimmerman, False Light Invasion Of Privacy: The Light That Failed, 64 N.Y.U. L. REV. 364, 393-95 (1989). The tort has not gained widespread acceptance. Id. at 451.
32. Time, Inc., 385 U.S. at 390-91. Some scholars have concluded that the Court did in fact transpose its libel approach to false light. See, e.g., Zimmerman, supra note 31, at 385-86 (arguing that the Time, Inc. Court, without sufficient analysis, transferred its actual malice standard of libel law to false light).
33. Time, Inc., 385 U.S. at 387-88.
We hold that the constitutional protections for speech and press preclude the application of the New York statute to redress false reports of matters of public interest in the absence of proof that the defendant published the report with knowledge of its falsity or in reckless disregard of the truth.
Id. The Court went on to give matters of public interest a wide construction, concluding that it included entertainment as well as informational publications, and covered every issue "about which information is needed or appropriate to enable the members of society to cope with the exigencies of their period." Id. at 388 (citing Thornhill v. State of Alabama, 310 U.S. 88, 102 (1940)).
34. While the Time, Inc. Court did not adopt a private/public figure test, the majority opinion was full of language discussing public figure status. The opinion has an extensive discussion of New York tort law that did distinguish between newsworthy and non-newsworthy persons in some privacy cases. Thus, while New York law precluded an action based on true information about newsworthy persons and events, it did allow anyone, including newsworthy persons like the appellee, to recover for "fictionalization." The Court noted that the appellee (who with his family was held hostage in his home by escaped convicts) was regarded by the New York trial court as a "newsworthy person," thus barred from bringing a true private facts action but permitted to bring a fictionalization claim. Id. at 386.
The issue of public figure status came up again, this time in a constitutional context, after the Court announced its ruling. Arguing that its adoption of the actual malice rule was "not through blind application of New York Times Co. v. Sullivan," the Time, Inc. Court refused to engage in a factual comparison between the two cases. Id. at 390. The Court made clear that it was not deciding whether actual malice should apply to a libel action by private individuals (an issue later resolved in Gertz), or on a statutory privacy action by a public official. Id. at 390-91. The Court noted that the opportunities for self-help and assumption of the risk of publicity might vary in such cases, but held that the question of whether the same standard should apply to persons voluntarily and involuntarily thrust into the public limelight was not before the Court. Id. at 391.
35. Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974).
36. See, e.g., ERWIN CHEMERINSKY, CONSTITUTIONAL LAW PRINCIPLES AND POLICIES § 188.8.131.52 (2d ed. 2002) (commenting that the Court has avoided the issue of whether Time, Inc.'s use of a public concern test, rather than a public/private figure test, remains good law or is simply a historical anachronism; and noting that the lower courts are divided on this point).
37. 419 U.S. 245 (1974).
38. Cantrell, 419 U.S. at 250-51 (noting that the private figure plaintiff in that case had proved actual malice, the Court indicated that it was not required to "consider whether a State may constitutionally apply a more relaxed standard of liability for a publisher or broadcaster of false statements injurious to a private individual under a false-light theory of invasion of privacy, or whether the constitutional standard announced in Time, Inc. v. Hill applies to all false-light cases.").
39. CHEMERINSKY, supra note 36, at 1019 (noting a split in the lower courts). See also DANIEL J. SOLOVE & MARK ROTENBERG, INFORMATION PRIVACY LAW 158-59 (documenting the split in lower courts); Zimmerman, supra note 31, at 392 n.173 (listing cases which presume the public figure doctrine of libel law applies to the false light tort).
40. So named for its articulation in Smith v. Daily Mail Publ'g Co., 443 U.S. 97 (1979). Ironically, while the holding in Daily Mail has evolved into the controlling test in cases of conflict between privacy and press freedom, the Daily Mail Court claimed it was not deciding this question, asserting that "there is no issue here of privacy." Id. at 105.
41. RESTATEMENT (SECOND) OF TORTS § 652D (1976).
43. The five cases, listed in the order they reached the Court, are Cox Broadcasting Corp. v. Cohn, 420 U.S. 469 (1975); Oklahoma Publishing Co. v. Oklahoma County District Court, 430 U.S. 308 (1977); Landmark Communications, Inc. v. Virginia, 435 U.S. 829 (1978); Smith v. Daily Mail Publishing Co., 443 U.S. 97 (1979); and Florida Star v. B.J.F., 491 U.S. 524 (1989).
44. Daily Mail, 443 U.S. at 103.
45. Daily Mail, 443 U.S. 97 (holding unconstitutional a state statute which made it a crime to publish the name of a juvenile offender without the written approval of the juvenile court); Okla. Publ'g Co., 430 U.S. 308 (striking down as violative of the First Amendment a court order barring the publication of a juvenile accused's name and photograph obtained in open court).
46. Fla. Star, 491 U.S. 524 (overturning a jury verdict against the press for the revelation of a rape victim's name in violation of a Florida statute, where the newspaper obtained the information from publicly released police records); Cox Broad. Corp., 420 U.S. 469 (holding that there could be no recovery in tort for the publication of a rape victim's name where that name had been obtained from public records, despite a state statute which criminalized publication).
47. Landmark Communications, Inc., 435 U.S. 829 (holding unconstitutional a Virginia statute that criminalized the publication of information about a confidential judicial inquiry).
48. See supra note 40.
49. Scholars have disagreed on the relative importance of each of these two factors. Compare, e.g., Patrick J. McNulty, The Public Disclosure of Private Facts: There Is Life After Florida Star, 50 DRAKE L. REV. 93, 115 (2001) (arguing that Florida Star abandons a test based on content and focuses exclusively on how news is obtained), with Note, Leading Cases, 115 HARV. L. REV. 306, 407 (2001) (suggesting that after Bartnicki, whether the information "addresses a matter of public concern-is now more important than how it was obtained").
50. This is not to suggest that the opinions do not refer to the public figure doctrine. For instance, some of the cases summarize the Court's libel decisions, including the distinction between public and private figures. See Fla. Star, 491 U.S. at 539-40; Landmark Communications, Inc., 435 U.S. at 838, 841; Cox Broad. Corp., 420 U.S. at 489-91.
51. Samuel D. Warren & Louis D. Brandeis, The Right to Privacy, 4 HARV. L. REV. 193, 215 (1890). Warren and Brandeis seemed to equate public plaintiffs with those who held or sought public office, id. at 215-16, although their proffered definition, those "who, in varying degrees, have renounced the right to live their lives screened from public observation," id. at 215, was considerably wider. 52. Id. at 214.
54. Id. at 215.
57. Id. at 215-16.
58. RESTATEMENT (SECOND) OF TORTS § 652D cmts. e, f, h (1976). It is not clear whether the public/private person distinction is part of the common-law tort of false light. See Zimmerman, supra note 31, at 373 (noting "disagreement among [the] courts [as to] whether the newsworthiness of the subject matter or the plaintiffs status as a public or a private figure should affect the availability of the action").
59. RESTATEMENT (SECOND) OF TORTS § 652D cmts. e, f, h. Comment e defined a voluntary public figure as '[o]ne who voluntarily places himself in the public eye, by engaging in public activities, or by assuming a prominent role in institutions or activities having general economic, cultural, social or similar public interest, or by submitting himself or his work for public judgment." Comment f recognizes and defines involuntary public figures.
60. Id. cmt. e. Comment h repeats this distinction announcing that permissible publicity of information concerning either voluntary or involuntary public figures is not limited to the particular events that arouse the interest of the public. Id. cmt. h. That interest, once aroused by the event, may legitimately extend, to some reasonable degree, to further information concerning the individual and the facts about them, which are not public and which, in the case of one who had not become a public figure, would be regarded as an invasion of his purely private life.
61. Id. (suggesting that even for public figures such as movie actresses "[t]here may be some intimate details of her life, such as sexual relations, which even the actress is entitled to keep to herself").
63. See, e.g., Kapellas v. Kofman, 459 P.2d 912, 921 (Cal. 1969); Goodrich v. Waterbury Republican-Am., Inc., 448 A.2d 1317, 1331 (Conn. 1982); Rawlins v. Hutchinson Publ'g Co., 543 P.2d 988, 992-93 (Kan. 1975); Bilney v. Evening Star Newspaper Co., 406 A.2d 652, 660 (Md. Spec. App. 1979); Wilson v. Grant, 687 A.2d 1009, 1015-16 (N.J. Super. Ct. App. Div. 1996).
64. 459 P.2d 912 (Cal. 1969).
65. Id. at 922. This test has been widely followed. See, e.g., Goodrich, 448 A.2d at 1331; Wilson, 687 A.2d at 1016. Other states simply adopt Comment h of the Restatement, which suggested that public figures have a lesser expectation of privacy. See, e.g., Rawlins, 543 P.2d at 992-93; Bilney, 406 A.2d at 659. The Kapellas test was ostensibly reaffirmed by the California Supreme Court in Shulman v. Group W Productions, Inc., 955 P.2d 469 (Cal. 1998), although much of the plurality opinion focuses on a "logical nexus test" for involuntary public figures, id. at 483-85, which the court claims is a "natural adaptation of Kapellas." Id. at 486 n.9. This has created confusion in California as to the continued authority of the Kapellas factors. Compare Carafano v. Metrosplash.com, Inc., 207 F. Supp. 2d 1055, 1068-69 (C.D. Cal. 2002) (applying the Kapellas factors and citing to Shulman), with Michaels v. Internet Entm't Group, Inc., No. CV 98-0583 DPP (CWx), 1998 U.S. Dist. LEXIS 20786, at *24-25 (C.D. Cal. 1998) (applying the logical nexus test articulated in Shulman and balancing "the depth of the intrusion against the relevance of the matters broadcast to matters of legitimate public concern"). See also Gary L. Bostwick, The Newsworthiness Element: Shulman v. Group W Prods., Inc. Muddies The Waters, 19 Loy. L.A. ENT. L. REV. 225 (1999) (critiquing Shulman).
66. See, e.g., Shulman, 955 P.2d at 479 (noting that the Supreme Court has given little guidance on the constitutional limits on privacy actions, the California court refused to attempt to "rigorously separate the tort and constitutional issues" presuming that they were "congruent"). See also Ozer v. Borquez, 940 P.2d 371, 378 (Colo. 1997); Howard v. Des Moines Register & Tribune Co., 283 N.W.2d 289, 300-01 (Iowa 1979); Wilson, 687 A.2d at 1015.
67. 433 U.S. 425 (1977).
68. Id. at 433-34.
69. Id. at 455-65 (discussing the privacy challenge).
70. Id. at 465 (commenting that "appellant has a legitimate expectation of privacy in his personal communications"). This constitutional right of privacy is a right only against government disclosure of private information. To date, the Court has not recognized a constitutional right of privacy against disclosure by the press or other nongovernmental entities. See Paul Gewirtz, Privacy and Speech, 2001 SUP. CT. REV. 139, 172 (observing that "freedom from governmental abridgement is explicitly protected by the Constitution, and freedom of the press from nongovernmental interference with privacy is not"); Eugene Volokh, Freedom of Speech and Information Privacy: The Troubling Implications of a Right to Stop People from Speaking About You, 52 STAN. L. REV. 1049, 1107 (2000). Some scholars see the Bartnicki decision as potentially opening the door to such a universal constitutional right to privacy, based either in a constitutional privacy right per se or derived from a First Amendment right to private speech. See, e.g., Martin E. Halstuk, Shielding Private Lives From Prying Eyes: The Escalating Conflict Between Constitutional Privacy and the Accountability Principle of Democracy, 11 CommMLw CONSPECTUS 71, 96 (2003) (opining that Bartnicki "recognized for the first time a constitutional right of privacy concerning disclosure of private information obtained from a non-governmental source"). However, most commentators read the Bartnicki opinion as simply according privacy very great weight, and not as recognizing privacy as a constitutional right. See, e.g., Fred H. Cate & Robert Litan, Constitutional Issues in Information Privacy, 9 MICH. TELECOMM. & TECH. L. REV. 35, 41-42 (2002) (arguing that "[wihether the Constitution protects individuals' interests in avoiding collection and use of information about them by private-sector entities is a critical question, but Bartnicki is a slender basis for such a claim. Whether the case will prove to mark the first step in the beginning of a real change in the Court's thinking, or whether it is merely an aberration, remains to be seen"); Michael C. Dorf, The Supreme Court Cell Phone Decision: An Unusual Balancing Act by the Court, 667 PRACTICING LAW INSTITUTE 77, 119 (2001) (observing that Bartnicki "may become an important precedent for treating privacy as having great constitutional weight"); Jennifer Nichole Hunt, Bartnicki v. Vopper: Another Media Victory or Ominous Warning of a Potential Change in Supreme Court First Amendment Jurisprudence?, 30 PEPP. L. REv. 367, 387 (2003) (noting that the majority opinion "gave the interest in protecting privacy nearly the same amount of weight as it gave the freedom of the press").
71. Nixon, 433 U.S. at 455.
72. Id. at 457.
73. Id. at 465 (listing factors to be considered as including "appellant's status as a public figure").
74. The lower courts in attempting to apply Nixon have developed a mixed record on the importance of public figure status in deciding these privacy claims. While most Courts adopt a balancing approach, some include "public figure status" as a factor to be balanced. Compare Plante v. Gonzalez, 575 F.2d 1119, 1134-35 (5th Cir. 1978) (finding public officials have a lesser interest in privacy because they were elected officials), with United States v. Westinghouse Elec. Corp., 638 F.2d 570, 578 (3d Cir. 1980) (adopting a multifactor balancing test which does not include public figure status).
75. I am not arguing that the test for governmental invasion of citizen's constitutional right to privacy should be identical to the First Amendment limits on tort actions for invasion of privacy. Rather this Article makes a simpler point: that the Court has, on occasion, treated public figure status as relevant to informational privacy, and, as discussed supra, has done so for precisely the reason it is used in libel law (that a public figure assumes the risk of a loss of privacy upon entering the public sphere).
76. 532 U.S. 514 (2001).
77. Id. at 527-28 (Stevens, J., opinion for the Court).
78. Id. at 541-56 (Rehnquist, C.J., dissenting).
79. Id. at 535-41 (Breyer, J., concurring).
80. Id. at 518 (Stevens, J.).
83. Id. at 518-19.
85. Id. at 519.
89. Yocum was added as a defendant in an amended complaint after discovery revealed he was the source of the tape. Id.
92. The federal act allowed actual damages or "statutory damages of whichever is the greater of $100 a day for each day of violation or $10,000.". 18 U.S.C. § 2520(c)(2) (2000), cited in Bartnicki, 532 U.S. at 520 n.2. The Pennsylvania statute had a lesser penalty ($100 a day or $1,000, but it also allowed punitive damages and attorney fees). 18 PA. CONS. STAT. § 5725(a) (2000), cited in Bartnicki, 532 U.S. at 520 n.2.
93. 18 U.S.C. 2511(1)(a) (2000). The Court, quoting Branzburg v. Hayes, 408 U.S. 665, 691 (1972), made clear that if the press itself engaged in wiretapping, it would be "frivolous to assert. .. that the First Amendment" protected such conduct. Bartnicki, 532 U.S. at 532 n.19.
94. Bartnicki, 532 U.S. at 519-20 (describing the claims made in the amended complaint).
95. 18 U.S.C. 2511(1)(c) (2000), cited in Bartnicki, 532 U.S. at 520 n.3.
96. Bartnicki, 532 U.S. at 524-25 (setting out the factual assumptions on which the Court based its decision).
97. Id. at 525.
99. Id. at 534. The majority of six consisted of Justices Stevens, Ginsburg, Kennedy, Souter, Breyer, and O'Connor. Bartnicki, 532 U.S. 514. Chief Justice Rehnquist, joined by Justices Scalia and Thomas, dissented. Id.
100. Three Justices-Ginsburg, Kennedy and Souter-joined Stevens's opinion without qualification. As discussed below in section IV.C, Justice Breyer, joined by Justice O'Connor, wrote a concurring opinion. Id.
101. Id. at 518.
103. See supra note 70 (discussing the literature).
104. Bartnicki, 532 U.S. at 527-28. The majority opinion makes clear that it is adopting the Daily Mail test but it has been the subject of scholarly criticism for its lack of clarity on other vital issues, for instance the level of scrutiny to be applied. See, e.g., Gewirtz, supra note 70, at 142 (critiquing Justice Stevens's opinion for "notable elusiveness in discussing the governing legal standard").
105. Bartnicki, 532 U.S. at 527-28.
106. Id. at 525. The Court focused on the subject matter of the speech, not the circumstances in which the conversation occurred, to determine that the conversation was on a matter of public concern.
107. Id. at 535 (citations omitted).
108. Id. at 525.
109. Id. The Court noted that no statute prohibited the receipt of illegally intercepted information, just its further disclosure.
110. Id. at 535.
111. Id. (analyzing the government's asserted interests).
112. Id. at 529-32 (finding the interest plainly insufficient).
113. Id. at 532-34 (characterizing this interest as "considerably stronger," but ultimately concluding that it must "give way when balanced against the interest in publishing matters of public importance").
114. Id. at 534-35.
115. Id. at 527 (citing Daily Mail, 443 U.S. 97 (1979)).
116. There is only one point in Justice Stevens's opinion that can be seen as referencing, even obliquely, the plaintiffs status. Id. at 534. After expressly adopting a public concern test and quoting Warren and Brandeis for the proposition that "'[t]he right to privacy does not prohibit any publication of matter which is of public or general interest,'" the Court uses language which seems to evoke the assumption-of-the-risk rationale which, as we have seen, is usually tied to the public figure doctrine. Id. (citing Samuel D. Warren & Louis D. Brandeis, The Right to Privacy, 4 HARV. L. REV. 193, 214 (1890)). Thus, the Court comments that: "One of the costs associated with participation in public affairs is an attendant loss of privacy." Id. The Court never develops this thought, never mentions the public figure doctrine, and instead returns to the importance of open debate on matters of public concern. Id.
117. Id. at 517 (labeling question presented as both "novel" and "narrow"), 528 (characterizing the issue as a "narrower version of that still-open question").
118. Id. at 529 (commenting that "[o]ur refusal to construe the issue presented more broadly is consistent with this Court's repeated refusal to answer categorically whether truthful publication may ever be punished consistent with the First Amendment").
119. Id. at 535-41 (Breyer, J., concurring).
120. Id. at 536.
122. Id. at 536 (citing to the Court at 518).
127. Id. He elaborated on the test explaining that we must ask if statutes "impose restrictions on speech that are disproportionate when measured against their corresponding privacy and speech-related benefits, taking into account the kind, the importance and the extent of these benefits, as well as the need for the restrictions in order to secure those benefits?" Id.
128. Id. at 537-38 (commenting that '[a]s a general matter, despite the statutes' direct restrictions on speech, the Federal Constitution must tolerate laws of this kind because of the importance of these privacy and speech-related objectives").
129. Id. at 538. Justice Breyer argued that the wiretapping statutes enhanced speech as the assurance of privacy "encourage[d] conversations that otherwise might not take place." Id. at 537. They restricted speech by "directly, deliberately, and of necessity" penalizing media publication. Id.
130. Id. at 540.
131. Id. at 539 (Justice Breyer noted that revelation of such violent threats would be privileged at common law.).
132. Id. at 539-40.
133. Id. at 540.
134. Id. at 539-40.
135. Id. at 539.
136. Id. at 540.
137. Id. at 541.
138. Id. at 541-56 (Rehnquist, C.J., dissenting).
139. Id. at 542.
140. Id. at 544-46.
141. Id. at 546-49.
142. Id. at 548-49.
143. Id. at 549-53. Ironically, Chief Justice Rehnquist, hardly known for his own deference to Congress, faults the majority with not recognizing that Congress is a far better factfinder than the judiciary. Id. at 549-50.
144. Id. at 553.
145. Id. at 555.
146. Id. at 553.
148. Id. at 553-54.
149. Id. at 554.
150. Id. at 555-56.
151. Id. at 554-55.
153. This Part discusses possible tests to determine the constitutionality of the tort actions for invasion of privacy (false light and disclosure of private facts) when they conflict with the free speech rights of the press. It does not offer a test for governmental invasions of citizens' privacy, where a very different constitutional balance may well be drawn. In such cases, the government possesses no constitutional right to free speech, and indeed it is the plaintiff who asserts a constitutional right to stop government speech on matters deemed private. In media cases, by contrast, the First Amendment accords a constitutional right to speak. Thus, a very different balance is likely to be drawn in these two sets of cases.
154. See supra section III.A.
155. 532 U.S. 514.
156. See supra section III.A for a discussion of the continued validity of Time, Inc.'s holding post-Gertz.
157. See supra section III.A.
158. In most of the cases the plaintiffs were private figures (rape victims named in governmental records and juvenile accused), and the Court was not called on to address how public figures would be treated. The exceptions are Bartnicki, 532 U.S. at 543 (where the plaintiffs were union representatives, and in Justice Breyer's eyes, public figures) and Landmark Communications, Inc. v. Virginia, 435 U.S. 829, 829 (1978) (where the plaintiff, a state court judge, was a public official).
159. See supra notes 34, 50 (detailing the discussion of public figures in the Daily Mail line of case).
160. 385 U.S. 374, 390-91 (1967) (declining to announce a rule going beyond the facts before it).
161. See, e.g., Bartnicki, 532 U.S. at 528-29; Fla. Star v. BJF, 491 U.S. 524, 532-33 (1989); Landmark Communications, 435 U.S. at 838.
162. See supra Part II (discussing the public figure doctrine in libel law). The Court saw self-help as of lesser importance. Gertz v. Robert Welch, Inc., 418 U.S. 323, 344 (1974).
163. 385 U.S. at 390-91. The same concept, that public figures assume the risk and so have a lesser privacy interest, is found in tort law. As several courts have put it, "[a] person who by his accomplishments, fame or mode of life, or by adopting a profession or calling which gives the public a legitimate interest in his doings, affairs or character, is said to become a public personage, and thereby relinquishes a part of his right of privacy." Rawlins v. Hutchinson Publ'g Co., 543 P.2d 988, 993 (Kan. 1975) (quoting prior cases). See also Kapellas v. Kofman, 459 P.2d 912, 923 (1969) (commenting that "[t]hose who seek elected public position realize that in so doing they subject themselves, and those closely related to them, to a searching beam of public interest and attention"); Goodrich v. Waterbury Republican-Am. Inc., 448 A.2d 1317, 1331 (Conn. 1982) (holding that a public figure had a lesser privacy interest because he "voluntarily injected himself into the public eye"); Bilney v. Evening Star Newspaper Co., 406 A.2d 652, 660 (Md. 1979) (holding that basketball players "[h]aving sought and basked in the limelight, by virtue of their membership of the team, will not be heard to complain when the light focuses on their imminent withdrawal from the team").
One who voluntarily places himself in the public eye... cannot complain when he is given publicity that he has sought. In such a case . . .the legitimate interest of the pubic in the individual may extend beyond those matters which are themselves made public, and to some reasonable extent may include information as to matters that would otherwise be private.
RESTATEMENT (SECOND) OF TORTS § 652D cmt. e (1976).
The Court also expressly adopted the assumption-of-the-risk rationale in Nixon. The Court started its privacy discussion by noting that Nixon "concedes that when he entered public life he voluntarily surrendered the privacy secured by law for those who elect not to place themselves in the public spot light." Nixon v. Adm'r of Gen. Servs., 433 U.S. 425, 455 (1977).
164. 532 U.S. at 540 (Breyer, J., concurring).
165. Id. at 539 (citing to libel case law).
166. For an examination of the assumption-of-the-risk rationale, see Gilles, supra note 13.
167. William A. Glaston, The Limits of Privacy: Culture, Law and Public Office, 67 GEO. WASH. L. REV. 1197, 1203 (1999) (opining that "for the foreseeable future, candidates and public officials must act on the assumption that every aspect of their lives may become widely known"). See also Anita L. Allen, Privacy and the Public Official: Talking About Sex as a Dilemma for Democracy, 67 GEO. WAH. L. REV. 1165, 1165 (1999) (noting, and lamenting, that Americans, and in particular public officials, have a diminished expectation of privacy); Shaun B. Spencer, Reasonable Expectations and the Erosion of Privacy, 39 SAN DIEGO L. REV. 843, 874-77 (2002) (observing that public officials have a decreased expectation of privacy and arguing that, therefore, an expectations-based test should be rejected); McNulty, supra note 49, at 135 (commenting that "current community mores dictate that there is very little privacy left for public figures.").
168. See supra section IV.B for a discussion of the majority opinion.
169. See supra section IV.C for a discussion of the concurrence.
170. See supra section IV.D for a discussion of the dissent.
171. See supra section IV.B for a discussion of the majority opinion. The likelihood that Justices Breyer and O'Connor would vote with the Bartnicki dissenters in a private figure case, is evidenced by the warning at the outset and the end of their concurrence that the majority opinion must not be read to imply broader immunity for the press beyond the facts of the case, Bartnicki v. Vopper, 532 U.S. 514, 536-37, 541 (2001); the indication that many other statutes protecting privacy would be constitutional and the legislatures should not be unduly restricted in their efforts to protect privacy, id. at 537-38, 541; and finally the constitutional weight that the opinion gives to privacy, id. at 536-37.
Other scholars have pointed out that there may now be a majority of votes on the Supreme Court in favor of protecting privacy. See, e.g., Doff, supra note 70, at 119 (opining that "in some future case," the interest at stake "may well tip the balance in the other direction"); Gerwitz, supra note 70, at 139, 141 (observing that "[wihen read alongside the opinion of the three dissenters, who thought the media should lose this case, the Breyer opinion makes clear that a majority of the Court is prepared to uphold significant restrictions on the media in order to protect privacy"); Halstuk, supra note 70, at 91 (opining that Breyer and O'Connor 'could easily cast their key votes with Rehnquist, Scalia and Thomas, forming a new majority in the future"); Hunt, supra note 70, at 386 (noting that Breyer and O'Connor might well join the dissent to form a new majority who would impose liability on the media); Richard D. Shoop, Bartnicki v. Vopper, 17 BERKELEY TECH. L.J. 449, 464 (2002) (opining that if Justice Stevens had not written so narrow a ruling, Justices Breyer and O'Connor could well have voted with the dissent, creating a new majority).
172. Indeed, given the express refusal of even Justice Stevens to rule on how a private matters case would come out, and his repeated description of privacy as an "important interest," there may be nine votes on the Court to allow liability for publication of a matter of private concern about a private person. See Bartnicki, 532 U.S. at 532-33. This has led some scholars to debate whether privacy is close to being recognized as a constitutional right. See supra note 70 (summarizing conflicting positions).
173. The distinction between "ad hoc balancing" and "definitional balancing" was first offered by Professor Nimmer. See Melville B. Nimmer, The Right To Speak from Times to Time: First Amendment Theory Applied to Libel and Misapplied to Privacy, 56 CAL. L. REV. 935, 942 (1968). While "ad hoc balancing" weighs the competing interest anew in each and every case, in "definitional balancing" the Court weighs the competing interests for a whole class of cases and announces a substantive constitutional rule to be applied to all cases within that class. Id.; see also John Hart Ely, Democracy and Distrust, 105-16 (1980) (discussing balancing approaches); Thomas I. Emerson, First Amendment Doctrine and the Burger Court, 68 CAL. L. REV. 422, 447-54 (1980) (discussing the Burger Court's use of both ad hoc and definitional balancing ). Some critiques have charged that both types of balancing are flawed. See T. Alexander Aleinikoff, Constitutional Law in the Age of Balancing, 96 YALE L.J. 943, 948 (1987).
Balancing itself is usually contrasted with a categorical approach when the Court, rather than balancing competing interests, simply classifies areas of speech as protected or unprotected. Some categorical approaches are absolute (speech is either absolutely protected or not protected at all) but other categorical approaches admit of varying levels of protection. See, e.g., Aleinikoff, supra, at 943-45 (outlining forms of balancing); Nimmer, supra, at 935-42 (discussing the three principal approaches of absolutism, ad hoc balancing and definitional balancing); Pierre J. Schlag, An Attack on Categorical Approaches to Freedom of Speech, 30 UCLA L. REV. 671, 671-75 (1983) (providing detailed definitions of each methodology).
This Article accepts that the current Court is wedded to balancing, see infra section V.C, but urges the adoption of the definitional balancing approach used in libel law, over the ad hoc balancing approach seemingly proposed by Justice Breyer. Id.
174. The Court in fact considered at least nine factors: the extent of intrusion into Nixon's privacy; his status as a public figure; his expectation of privacy in the materials in question; the importance of the public interest; the level of difficulty involved in segregating private and public documents; the Act's sensitivity to privacy interests; the measures taken to keep the materials private, including the unblemished record of the archivists; and the likelihood that further regulations would be promulgated to protect privacy. Nixon v. Adm'r of Gen. Servs., 433 U.S. 425, 465 (1977) (summarizing the factors the Court considered in concluding there was no privacy violation).
The lower courts have also followed this multifactored balancing approach. Recognizing the balancing test asserted in Nixon, the Second Circuit has held that using a balancing approach is the appropriate standard of review when considering the privacy of personal matters. Barry v. City of New York, 712 F.2d 1554, 1559 (2d Cir. 1983). For further discussion, see also Plante v. Gonzalez, 575 F.2d 1119, 1134-36, (5th Cir. 1978) (adopting a balancing approach but stating that Nixon provides little guidance in public disclosure cases); Fadjo v. Coon, 633 F.2d 1172, 1176 (5th Cir. 1981) (discussing Nixon and maintaining that a balancing approach is appropriate as an intermediate standard of review); Fraternal Order of Police v. Philadelphia, 812 F.2d 105, 110 (3d Cir. 1987) (applying a multifactored balancing test comprised of factors other than those articulated in Nixon); Slevin v. City of New York, 551 F. Supp 917, 930-31 (S.D.N.Y. 1982) (citing to Nixon and stating that most lower courts have applied a balancing approach).
175. See, e.g., Kapellas v. Kofman, 459 P.2d 912,922 (Cal. 1969). Interestingly, for the reasons set out later in this Article, some courts, including the California Supreme Court (which created the Kapellas test), have had concerns with an ad hoc balancing test and have sought to frame a more categorical approach. See Shulman v. Group W Prods., Inc., 955 P.2d 469, 485-86 (Cal. 1998) (endorsing the Kapellas test, but concerned with fact-dependent balancing of First Amendment rights attempting to incorporate a relevancy analysis, which it argues will reduce ad hoc balancing). For a discussion of Shulman, see Bostwick, supra note 65, at 225.
176. See supra section IV.C discussing the concurrence.
177. Bartnicki, 532 U.S. at 540.
178. Shulman, 955 P.2d at 486 n.9.
179. See Nixon, 433 U.S. at 465 (including public figure status and importance of public interest in the material at issue); Bartnicki, 532 U.S. at 540 (Breyer, J., concurring) (examining both whether the matter was of public concern and the plaintiffs public figure status); Kapellas, 459 P.2d at 922 (including the value to society of the facts to be published and whether the person was in a position of public notoriety).
180. For the classic distinction between ad hoc balancing and definitional balancing, see supra note 173.
181. 433 U.S. at 458.
182. Id. at 465.
183. See, e.g., Bilney v. Evening Star Newspaper Co., 406 A.2d 652, 660 (Md. Spec. App. 1979) (noting that the Restatement's test is "reasonableness under the facts presented"); see also Shulman, 955 P.2d at 485, 486 (endorsing the Kapellas test, but concerned with its fact-dependent, ad hoc balancing of First Amendment rights).
184. Other scholars have noted that Breyer's approach is a case-by-case balancing approach. See Dorf, supra note 70, at 116; James M. Hilmert, Note, The Supreme Court Takes on the First Amendment Privacy Conflict and Stumbles: Bartnicki v. Vopper, the Wiretapping Act, and the Notion of Unlawfully Obtained Information, 77 IND. L.J. 639, 655 (2002) (characterizing Justice's Breyer's test as "an amorphous ad hoc balancing test"); Note, supra note 49, at 410 (observing that Breyer "would balance privacy and free speech interests case by case").
185. Bartnicki v. Vopper, 532 U.S. 514, 541 (2001).
186. Id. at 538.
187. Some scholars have suggested ad hoc weighing approaches similar to that advocated by Justice Breyer. See, e.g., Matthew J. Coleman, The "Ultimate Question". A Limited Argument for Trafficking in Stolen Speech, 55 OKLA. L. REV. 559, 609 (2002) (advocating that the level of free speech protection accorded in each case be determined by evaluating a series of factors including the nature of the speech and the plaintiffs status).
188. For instance, in dissent in Rosenbloom v. Metromedia, Inc., 403 U.S. 29 (1971), Justice Marshall attacked Justice Brennan's proposed public interest test, because "[c]ourts, including this one, are not anointed with any extraordinary prescience," and asked whether "courts are [to] simply take a poll to determine whether a substantial portion of the population is interested or concerned in a subject" or whether courts are to "somehow pass on the legitimacy of interest in a particular event or subject." Id. at 79. See also Gertz v. Robert Welch, Inc., 418 U.S. 323, 346 (1974) (Powell, J.) (offering the same reasons for rejecting Rosenbloom's public concern test).
189. Gertz, 418 U.S. at 346 (Powell, J.) (observing that "[w]e doubt the wisdom of committing this task to the conscience of judges"); Rosenbloom, 403 U.S. at 79 (Marshall, J., dissenting) (commenting that "[the danger such a doctrine portends for freedom of the press seems apparent").
190. 418 U.S. at 344.
191. Over the years since Gertz, whether a matter is of public concern has crept back into some areas of constitutional libel law. See supra note 12.
192. Gertz, 418 U.S. at 343-44. For the classic distinction between ad hoc balancing and definitional balancing, see supra note 173.
193. Gertz, 418 U.S. at 343-44.
194. Id. at 347-48.
195. Id. at 343-44.
196. In other words, the Court would engage in "definitional balancing," weighing the competing interests in each class of cases (public figure/public facts cases; public figure/private facts cases; private figure/public facts cases; and private figure/private facts cases) and announcing substantive rules to be applied to all cases falling within each class. See supra note 173, defining definitional balancing.
197. In constitutional libel law, if a plaintiff is determined to be a public figure or a private figure and the speech is on a matter of public concern, the plaintiff must prove falsity and a heightened fault standard (actual malice or negligence respectively) that focuses on the press's attitude toward the truth. See Gertz, 418 U.S. 323. Such heightened fault standards would work in false light privacy cases, since falsity must be proven, and thus the Court could, as it did in Time, Inc., transplant the actual malice test. Time, Inc., v. Hill, 385 U.S. 374, 387-88 (1967). The Court, of course, could find a different balance of interests and therefore adopt a different set of liability rules in false light cases. As Professor Zimmerman has pointed out, though libel and false light are similar, they are not identical. Zimmerman, supra note 31, at 393-95. In particular, false light does not require the plaintiff to suffer reputational harm, and thus false light plaintiffs may have less of an interest in recovery-suggesting that a more pro-press set of substantive rules should be adopted. Id. at 435-51 (arguing that the false light rules are inadequate to address the free speech problems created by the false light tort).
198. See supra notes 40-43 and accompanying text (defining the disclosure of private facts tort).
199. Such a scheme would thus leave unaltered the results in the leading disclosure cases: Cox Broadcasting Corp. v. Cohn, 420 U.S. 469 (1975); Oklahoma Publishing Co. v. Oklahoma County District Court, 430 U.S. 308 (1977); Smith v. Daily Mail Publishing Co., 443 U.S. 97 (1979); and Florida Star v. B.J.F., 491 U.S. 524 (1989). Landmark Communications Inc. v. Virginia, 435 U.S. 829 (1978), which concerned a public official, would not change in result, but would be simpler since the scheme above would bar automatically any recovery.
200. It is not my position that allowing a private figure/private concern action adequately protects free speech values, given that the State is seeking to penalize true speech. See Susan M. Gilles, All Truths Are Equal, But Are Some Truths More Equal Than Others?, 41 CASE W. RES. L. REV. 725 (1991) (advocating that there should be no liability where speech is true). My point is simply that, counting the votes in Bartnicki, there seem to be five, perhaps even nine, votes on the current Court for allowing recovery for a private person suing for publication of true private facts. See supra section V.A for a discussion of the votes in Bartnicki. Since the Court is likely to allow such an action, this Article suggests how to best craft constitutional limitations on such actions so as to protect free speech.
201. See, e.g., Konigsberg v. State Bar of Cal., 366 U.S. at 61-63 (Black, J., dissenting). For a spirited argument that balancing should be widely rejected, see Aleinikoff, supra note 173.
202. For his continued advocacy of this position, see, e.g., New York Times Co. v. Sullivan, 376 U.S. 254, 293 (1964) (Black, J., concurring); Curtis Publishing Co. v. Butts, 388 U.S. 130, 170 (1967) (concurring and dissenting); Time, Inc., 385 U.S. at 398 (Black, J., concurring).
203. See, e.g., Gertz, 418 U.S. at 342 (seeking the "proper accommodation" between free speech and reputational interest); see also Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 757 (1987) (characterizing the "approach approved in Gertz" as "balanc[ing] the State's interest in compensating private individuals for injury to their reputation against the First Amendment interest in protecting this type of expression."). As one commentator has observed, while New York Times itself did not seem to engage in balancing, from Gertz on, the Court has consistently employed definitional balancing in libel cases. See, Aleinikoff, supra note 173, at 1001 (arguing that New York Times did not employ balancing), 977 (noting that since Gertz, the Court has weighed First Amendment interests against reputational interest in libel cases).
204. Indeed, one commentator has concluded that "[c]onstitutional law has entered the age of balancing." See Aleinikoff, supra note 173, at 972. Justice Stevens, writing for the majority in Bartnicki, acknowledges that he was adopting a balancing approach: "[i]n these cases, privacy concerns give way when balanced against the interest in publishing matters of public importance." Bartnicki v. Vopper, 532 U.S. 514, 534 (2001). See Dorf, supra note 70, at 118 (commenting that "in Bartnicki, none of the Justices objected to balancing"). C.f, Coleman, supra note 187, at 582-83 (arguing that the majority is "drifting closer and closer to a categorical test" and advocating a "pure balancing approach"). Professor Dorf views both Justices Stevens and Breyer as engaged in balancing. See Dorf, supra note 70, at 118. I would agree, but argue that while Breyer's is an ad hoc approach, the majority engage in the definitional balancing (announcing a rule for publication of matters of public concern, although not for matters of private concern).
205. The distinction between "definitional" and "ad hoc" balancing was first proffered by Professor Nimmer. See Nimmer, supra note 173.
206. 418 U.S. at 343.
210. Id. at 343-44.
211. See Dorf, supra note 70, at 116. See also Hilmert, supra note 184, at 659 (arguing that "other than listing three factors, [Justice Breyer's test] left the lower federal courts no reasonably applicable standard and consequently left the First Amendment privacy doctrine in disarray"). For an argument that all balancing approaches suffer from "measurability" problems, see Aleinikoff, supra note 173, at 973-77.
212. One article suggests that Justice Breyer's approach is so "amorphous" that two lower courts considering the same case "would probably arrive at two different conclusions," Hilmert, supra note 184, at 656. See also Bostwick, supra note 65, at 249-50 (illustrating how the ad hoc common-law test can come out either way when applied to a hypothetical set of facts).
213. See New York Times Co. v. Sullivan, 376 U.S. at 254, 278 (1974) (stating that the goal of the actual malice rule is to prevent the "pall of fear and timidity imposed upon those who would give voice to public criticism," because in such "an atmosphere . . . First Amendment freedoms cannot survive."). See also Frederick Schauer, Fear, Risk and the First Amendment: Unraveling the "Chilling Effect," 58 B.U. L. REV. 685 (1978).
214. See Doff, supra note 70, at 115 (noting that uncertainty is especially problematic in the First Amendment area because of the chilling effect); Nimmer, supra note 173, at 939 (noting that "[t]he absence of certainty in the law is always unfortunate, but it is particularly pernicious where speech is concerned because it tends to deter all but the most courageous (not necessarily the most rational) from entering the market place of ideas").
215. Greater certainty is generally recognized as an advantage of definitional over ad hoc balancing. See Aleinikoff, supra note 173, at 979 (arguing that "[any gain in certainty it provides comes at the price of reduced coherence"); Nimmer, supra note 173, at 939 (ad hoc balancing leads to uncertainty).
216. While numerous scholars have attacked the Court's public figure doctrine, I have argued that, properly understood, it is a defensible doctrine. See Gilles, supra note 13, at 233 n.8 (listing the articles condemning the public figure doctrine).
217. For criticism of the public concern doctrine as lacking clarity, see Cynthia L. Estlund, Speech on Matters of Public Concern: The Perils of an Emerging First Amendment Category, 59 GEO. WASH. L. REV. 1 (1990); Volokh, supra note 70, at 1088-1106 (arguing that the public concern doctrine is theoretically unsound and should be abandoned).
218. Justice Powell opined that an ad hoc approach would "render [the Court's] duty to supervise the lower courts unmanageable." Gertz v. Robert Welch, Inc., 418 U.S. 323, 343 (1974).
219. Id. at 343 (pointing out that an "ad hoc resolution of... each particular case is not feasible").
220. See Gilles, supra note 25, at 1777-79 (reporting on the statistical findings of the Libel Defense Resource Center and other researchers).
221. Id. at 1774 (reporting that studies have consistently found that between seventy and eighty percent of defense motions for summary judgment are granted).
222. Justice Breyer characterizes his test as asking if the "balance" drawn is "reasonable" in light of the competing concerns. Bartnicki, 532 U.S. at 536. Yet reasonableness, the classic negligence standard, is almost always one for the jury and not appropriate for summary judgment. See DAN B. DOBBS, THE LAW OF TORTS § 148, at 355 (observing that "[b]ecause part of the jury's role is to make normative decisions or value judgments, courts do not normally grant summary judgment on negligence issues, even if the facts are undisputed").
223. The ad hoc approach to public/private figures in common-law tort, discussed supra section III.B, would perhaps remain, although the confusion of the state courts as to whether the public figure doctrine is part of tort law or constitutional law might lead state courts to simply follow any clear lead provided by the Supreme Court.
224. See supra Part II (discussing the public figure doctrine in libel law).
225. See supra section IV.D (discussing the dissent).
226. See supra section JV.C (discussing the concurrence).
227. See supra section IV.B (discussing the majority opinion).
228. See supra subsection V.B.2 (discussing a definitional balancing approach that incorporates the Daily Mail test).
229. As noted supra, the Court has never expressly rejected a "public figure" approach and has always been careful to rule only on the facts before it, leaving the door open to adopt a more generalized test. See supra section V.A (discussing the privacy precedent). Moreover, if the rules the Court adopts are those I suggest in section V.B, supra, the result in none of its prior cases would need to be overruled. See supra note 199, for a discussion of the relevant cases.