Privacy Torts

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Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Government power to protect the privacy interests of its citizens by penalizing publication or authorizing causes of action for publication directly implicates First Amendment rights. Privacy is a concept composed of several aspects.1 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.2

Although the Court has recognized valid governmental interests in extending protection to privacy,3 it has nevertheless interposed substantial free expression interests in the balance. The Court’s constitutional jurisprudence in this area has drawn heavily from its rulings in New York Times v. Sullivan and other defamation cases discussed in an earlier essay.4 Thus, in Time, Inc. v. Hill,5 the Times standard requiring proof of actual malice precluded 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. Given that this actual malice standard did not limit the recovery of compensatory damages for defamation by private persons, the question arose whether Hill applied to all “false-light” cases or only such cases involving public officials or public figures.6 More specifically, one defamation case left unresolved the issue “whether the State may ever define and protect an area of privacy free from unwanted publicity in the press.” 7 In Cox Broadcasting Corp. v. Cohn, the Court declined to pass on the broad question, holding instead that the accurate publication of information obtained from public records is absolutely privileged.8 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.9

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.10 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 (for example, 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.11

The tort of intentional infliction of emotional distress has presented special concerns due to its “outrageousness” standard of liability. In Hustler Magazine, Inc. v. Falwell,12 the Court applied the New York Times v. Sullivan standard to a public figure seeking damages for intentional infliction of emotional distress. The case involved an advertisement “parody” portraying the plaintiff, described by the Court as a “nationally known minister who has been active as a commentator on politics and public affairs,” as stating that he lost his virginity “during a drunken incestuous rendezvous with his mother in an outhouse.” 13 Affirming liability in this case, the Court believed, would subject “political cartoonists and satirists . . . to damage awards without any showing that their work falsely defamed its subject.” 14 The Court noted that “most if not all jurisdictions” had imposed liability for this tort only where the conduct was “outrageous.” 15 However, the Court rejected the idea that this “outrageousness” standard could distinguish supposedly impermissible parodies from more traditional political cartoons, explaining that “'[o]utrageousness’ in the area of political and social discourse has an inherent subjectiveness about it which would allow a jury to impose liability on the basis of the jurors’ tastes or views.” 16 Therefore, proof of intent to cause injury, “the gravamen of the tort,” was insufficient “in the area of public debate about public figures.” Additional proof that the publication contained a false statement of fact made with actual malice was necessary, the Court concluded, in order “to give adequate ‘breathing space’ to the freedoms protected by the First Amendment.” 17

The Court next considered whether an intentional infliction of emotional distress action could be brought by a father against public protestors who picketed the military funeral of his son, where the plaintiff was neither a public official nor a public figure. In Snyder v. Phelps,18 the Court avoided addressing whether the actual malice standard applied to the intentional infliction of emotional distress upon a private citizen, finding that where public protesters are addressing issues of public concern, the fact that such protests occurred in a setting likely to upset private individuals did not reduce the First Amendment protection of that speech. In Phelps, the congregation of the Westboro Baptist Church, based on the belief that God punishes the United States for its tolerance of homosexuality, particularly in America’s armed forces, had engaged in nearly 600 protests at funerals, mostly military. While it was admitted that the plaintiff had suffered emotional distress after a protest at his son’s funeral, the Court declined to characterize the protests as directed at the father personally.19 Rather, considering the “content, form, and context” of that speech,20 the Court found that the dominant themes of the protest went to public concerns, and thus could not serve as the basis for a tort suit.21

The Court has further suggested that the actual malice standard does not apply to a right of publicity claim. In Zacchini v. Scripps-Howard Broadcasting Co.,22 the Court held unprotected by the First Amendment a broadcast of a video tape of the “entire act” of a “human cannonball” in the context of the performer’s suit for damages against the company for having “appropriated” his act, thereby injuring his right to the publicity value of his performance. The Court emphasized two differences between the legal action permitted here and the legal actions found unprotected or not fully protected in defamation and other privacy-type suits. First, the interest sought to be protected was, rather than a party’s right to his reputation and freedom from mental distress, the right of the performer to remuneration for putting on his act. Second, the other torts if permitted decreased the information that would be made available to the public, whereas permitting this tort action would have an impact only on “who gets to do the publishing.” 23 In both respects, the tort action was analogous to patent and copyright laws in that both provide an economic incentive to persons to make the investment required to produce a performance of interest to the public.24

1: See, e.g., William Prosser, Law of Torts 117 (4th ed. 1971); William 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 544–61 (1970). Note that we do not have here the question of the protection of one’s privacy from governmental invasion.
2: 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].” J. Thomas McCarthy, § 5.8[A].
3: Time, Inc. v. Hill, 385 U.S. 374, 383 n.7 (1967); and id. at 402, 404 (Harlan, J., concurring in part and dissenting in part), 411, 412–15 (Fortas, J., dissenting); Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 487–89 (1975).
4: See New York Times Co. v. Sullivan, 376 U.S. 254 (1964); Amdt1.7.5.7 Defamation.
5: 385 U.S. 374 (1967). See also Cantrell v. Forest City Publ’g Co., 419 U.S. 245 (1974).
6: Cf. Cantrell v. Forest City Publ’g Co., 419 U.S. 245, 250–51 (1974); Cox Broad. Corp. v. Cohn, 420 U.S. 469, 490 n.19 (1975).
7: Cox Broad. Corp. v. Cohn, 420 U.S. 469, 491 (1975) (explaining the open question).
8: 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.
9: 420 U.S. at 491.
10: The Fl. Star v. B.J.F., 491 U.S. 524, 533 (1989).
11: Id. at 537–41. The Court left open the question “whether, in cases where information has been acquired unlawfully by a newspaper or by a source, the government may ever punish not only the unlawful acquisition, but the ensuing publication as well.” Id. at 535 n.8. In Bartnicki v. Vopper, 532 U.S. 514 (2001), the Court held that a content-neutral statute prohibiting the publication of illegally intercepted communications (in this case a cell phone conversation) violates free speech where the person who publishes the material did not participate in the interception, and the communication concerns a public issue.
12: 485 U.S. 46 (1988).
13: 485 U.S. at 47, 48.
14: 485 U.S. at 53.
15: 485 U.S. at 53.
16: 485 U.S. at 55.
17: 485 U.S. at 53, 56.
18: 562 U.S. 443 (2011).
19: Signs displayed at the protest included the phrases “God Hates the USA/Thank God for 9/11,” “America is Doomed,” “Don’t Pray for the USA,” “Thank God for IEDs,” “Thank God for Dead Soldiers,” “Pope in Hell,” “Priests Rape Boys,” “God Hates Fags,” “You’re Going to Hell,” and “God Hates You.” slip op. at 2.
20: Id. at 8 (citations omitted).
21: Justice Alito, in dissent, argued that statements made by the defendants on signs and on a website could have been reasonably interpreted as directed at the plaintiffs, and that even if public themes were a dominant theme at the protest, that this should not prevent a suit from being brought on those statements arguably directed at private individuals. slip op. at 9–11 (Alito, J., dissenting).
22: 433 U.S. 562 (1977). The “right of publicity” tort is conceptually related to one of the privacy strands: “appropriation” of one’s name or likeness for commercial purposes. Id. at 569–72. Justices Lewis Powell, William Brennan, and Thurgood Marshall dissented, finding the broadcast protected, id. at 579, and Justice Stevens dissented on other grounds. Id. at 582.
23: 433 U.S. at 573–74. Plaintiff was not seeking to bar the broadcast but rather to be paid for the value he lost through the broadcasting.
24: 433 U.S. at 576–78.