Snyder involves tort claims against Fred Phelps, pastor of the Westboro Baptist Church, and others arising out of the practice of Church members to picket the funerals of U.S. soldiers.  Church members held a protest near the funeral of Albert Snyder’s son, who was killed in Iraq.  The Church preached anti-gay messages, protesting funerals of dead soldiers as a way to illustrate God’s hatred of America for tolerating homosexuality.  Some signs said: “God Hates the USA,” “Fag troops,” and [...]]]> In a previous post, I analyzed the intrusion upon seclusion claim in Snyder v. Phelps, 580 F.3d 206 (4th Cir. 2009), a case where the Supreme Court recently granted certiorari.

Snyder involves tort claims against Fred Phelps, pastor of the Westboro Baptist Church, and others arising out of the practice of Church members to picket the funerals of U.S. soldiers.  Church members held a protest near the funeral of Albert Snyder’s son, who was killed in Iraq.  The Church preached anti-gay messages, protesting funerals of dead soldiers as a way to illustrate God’s hatred of America for tolerating homosexuality.  Some signs said: “God Hates the USA,” “Fag troops,” and “Thank God for dead soldiers.”  A jury found for Snyder, awarding him millions of dollars in damages.  The Fourth Circuit reversed on First Amendment grounds.  Snyder v. Phelps, 580 F.3d 206 (4th Cir. 2009).

In this post, I’ll analyze the intentional infliction of emotional distress issues.  The tort provides:

One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for such bodily harm.

Restatement (2nd) of Torts, Sec. 46.

Here are the questions being considered by the Supreme Court:

1. Does Hustler Magazine, Inc. v. Falwell apply to a private person versus another private person concerning a private matter?

2. Does the First Amendment’s freedom of speech tenet trump the First Amendment’s freedom of religion and peaceful assembly?

3. Does an individual attending a family member’s funeral constitute a captive audience who is entitled to state protection from unwanted communication?

I’ll address each in turn.

1. Does Hustler Magazine, Inc. v. Falwell apply to a private person versus another private person concerning a private matter?

Hustler Magazine, Inc. v. Falwell, 485 U.S. 86 (1988) involved a parody ad consisting of a fake interview between the Reverend Jerry Falwell and his mother, suggesting he had sex with his mother.  He won a jury verdict for intentional infliction of emotional distress.  The Supreme Court held that the First Amendment barred liability unless Falwell (a public figure) proved actual malice:

We conclude that public figures and public officials may not recover for the tort of intentional infliction of emotional distress by reason of publications such as the one here at issue without showing in addition that the publication contains a false statement of fact which was made with “actual malice,” i. e., with knowledge that the statement was false or with reckless disregard as to whether or not it was true.

In Snyder v. Phelps, the district court had applied the standard in Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974), which provides an exception to the actual malice standard for “private figures.”  But the Fourth Circuit reasoned that Phelps’s speech involved a matter of public concern and wasn’t directed specifically at Snyder.  Whether Snyder was a public or private figure was irrelevant.

Specifically, the court stated:

In assessing the Defendants’ First Amendment contentions, the [district] court focused almost exclusively on the Supreme Court’s opinion in Gertz, which it read to limit the First Amendment’s protections for “speech directed by private individuals against other private individuals.” Snyder v. Phelps, 533 F. Supp. 2d 567, 577 (D. Md. 2008). The court therefore assessed whether Snyder was a “public figure” under Gertz and whether Matthew’s funeral was a “public event.” See id.17

The Supreme Court has created a separate line of First Amendment precedent that is specifically concerned with the constitutional protections afforded to certain types of speech, and that does not depend upon the public or private status of the speech’s target. See Milkovich, 497 U.S. at 16; Hustler Magazine, 485 U.S. at 50. Thus, even if the district court (as opposed to the jury) concluded that Snyder and his son were not “public figures,” such a conclusion alone did not dispose of the Defendants’ First Amendment contentions. In focusing solely on the status of the Snyders and the funeral, and not on the legal issue concerning the nature of the speech at issue, the court failed to assess whether the pertinent statements could reasonably be interpreted as asserting “actual facts” about an individual, or whether they instead merely contained rhetorical hyperbole. See Milkovich, 497 U.S. at 20; CACI, 536 F.3d at 293. Whether a statement can reasonably be interpreted as stating actual facts about an individual is a question
of law for the court.

The court concluded later on:

A distasteful protest sign regarding hotly debated matters of public concern, such as homosexuality or religion, is not the medium through which a reasonable reader would expect a speaker to communicate objectively verifiable facts. In addition, the words on these signs were rude, figurative, and incapable of being objectively proven or disproven. Given the context and tenor of these two signs, a reasonable reader would not interpret them as asserting actual facts about either Snyder or his son.

I’m inclined to agree.  Although I find the speech by Phelps and the others at his church to be despicable, it isn’t specifically directed at particular individuals.  They picket at particular funerals, but their message is directed more generally at making anti-gay and anti-US comments, as well as broad attacks against the troops.  Gertz doesn’t fit because it involved a defamatory claim against the plaintiff, and there is no defamation against Snyder here.

Hustler, though, doesn’t directly apply because it involved a public figure.  Snyder isn’t a public figure.  Hence the issue before the Supreme Court — what to do in this case, which doesn’t fall under Gertz or Hustler.

I think that the Hustler rule should apply here.  The speech involved in Snyder was crude, obnoxious, and ridiculous, but it wasn’t directed at specific people and couldn’t reasonably be interpreted in making any factual assertions about specific people.  It was certainly odious speech and caused Snyder emotional distress.  But we tolerate a lot of speech that deeply offends people.  I can call you a jerk, an idiot, and express my opinions about you freely, no matter how crude.  The fact you might be very upset about this is outweighed by the First Amendment protection of free speech.  I might also express views that you find offensive: “All Republicans are selfish idiots” or “All Democrats are weak-minded fools.”   This speech might be insulting to you, but it’s protected by the First Amendment.

Where I start to run into problems is when I invade your privacy or defame you.  If I just say something that offends you, it’s not enough — and shouldn’t be enough — to allow you to prevail in a lawsuit.  That’s because of the danger that unpopular speech will strike many people as offensive, and it will be easy for juries to be offended to and punish the speaker.  If I say that “Yankee fans are morons” in New York City, I certainly wouldn’t want to face a jury trial there brought by an offended fan.

In On Liberty, John Stuart Mill argues (persuasively in my opinion), that people should be free to say and do what they want so long as they don’t harm others (self-regarding acts).  He examines the objection that there are few purely self-regarding acts since others might be deeply offended by a person’s conduct or speech:

There are many who consider as an injury to themselves any conduct which they have a distaste for, and resent it as an outrage to their feelings; as a religious bigot, when charged with disregarding the religious feelings of others, has been known to retort that they disregard his feelings, by persisting in their abominable worship or creed. But there is no parity between the feeling of a person for his own opinion, and the feeling of another who is offended at his holding it; no more than between the desire of a thief to take a purse, and the desire of the right owner to keep it. And a person’s taste is as much his own peculiar concern as his opinion or his purse.

I agree with Mill.  We need to tolerate a lot of offensiveness in society.  There are no purely self-regarding acts, since our behavior will invariably offend some people who hold different values and opinions.  But if the law were to recognize being offended as an injury, it would swallow up the category of self-regarding acts.  Therefore, the law must not recognize as a cognizable injury merely being offended (or even deeply offended).

On the other hand, we must protect against direct attacks, false rumors, invasions of privacy, and so on.  Speech used as a weapon to attack specific people and cause them emotional distress should be actionable.  Such speech should rise above mere insults or offensive messages — it should be defamatory, invasive of privacy, or harassing.  A line should be drawn between generally offensive speech and speech that is specifically targeted at particular individuals so as to injure them.

I’d be all for allowing Snyder to recover against Phelps if Phelps invaded the funeral or disrupted it with his speech.  But the facts indicate this didn’t happen here.  Snyder found out about Phelps’s speech afterwards, and he became offended (and rightly so).  But I think that as offensive as Phelps’s speech was, the Fourth Circuit was correct — the speech wasn’t directed at Snyder, and therefore the first question posed to the Supreme Court above isn’t entirely accurate.  This wasn’t speech about a private matter — it was speech of public concern directed to the public.

2. Does the First Amendment’s freedom of speech tenet trump the First Amendment’s freedom of religion and peaceful assembly?

This is an interesting question, but it doesn’t apply to this case.  The question would apply if Phelps’s protest disrupted the funeral.  Suppose Snyder were having a funeral procession out in public, and Phelps made his protest there, disrupting Snyder’s event.  We would then have Snyder’s First Amendment rights to freedom of religion and assembly (a funeral is often religious and a funeral procession can be understood to be a form of assembly) pitted against Phelps’s First Amendment rights to the speech.  But that isn’t this case, as the funeral was held in private and Phelps was far away.

3. Does an individual attending a family member’s funeral constitute a captive audience who is entitled to state protection from unwanted communication?

I don’t think this question applies to this case since Snyder’s family wasn’t a captive audience to Phelps’s speech.  In fact, Snyder didn’t even hear or notice Phelps’s speech until after the funeral.  If he were a captive audience, however, then the First Amendment analysis would have to take that into account.

In short, while Phelps’s speech was odious, it was general enough and sufficiently distant from the funeral so as to avoid (1) making specific statements about Snyder and (2) invading or disrupting the funeral.  Accordingly, it deserves First Amendment protection.

Snyder involves tort claims against Fred Phelps, pastor of the Westboro Baptist Church, and others arising out of the practice of Church members to picket the funerals of U.S. soldiers.  Church members held a protest near the funeral of Albert Snyder’s son, who was killed in Iraq.  A jury found the defendants liable and awarded $2.9 million in damages as well as $8 million in punitive damages.  The total damages were reduced by [...]]]> The Supreme Court had granted certiorari on Snyder v. Phelps, 580 F.3d 206 (4th Cir. 2009), a First Amendment case involving some privacy law issues.   The Supreme Court seems quite interested in privacy law of late, having recently granted cert. in NASA v. Nelson, a case involving the constitutional right to information privacy.

Snyder involves tort claims against Fred Phelps, pastor of the Westboro Baptist Church, and others arising out of the practice of Church members to picket the funerals of U.S. soldiers.  Church members held a protest near the funeral of Albert Snyder’s son, who was killed in Iraq.  A jury found the defendants liable and awarded $2.9 million in damages as well as $8 million in punitive damages.  The total damages were reduced by the court to $5 million.

The Church preached anti-gay messages, protesting funerals of dead soldiers as a way to illustrate God’s hatred of America for tolerating homosexuality.  Some signs said: “God Hates the USA,” “Fag troops,” and “Thank God for dead soldiers.”

Snyder prevailed on at least two tort claims of relevance to privacy law: (1) intentional infliction of emotional distress; and (2) intrusion upon seclusion.

The Fourth Circuit reversed on First Amendment grounds.  Snyder v. Phelps, 580 F.3d 206 (4th Cir. 2009).

In this post, I’ll focus on the intrusion upon seclusion tort.  I’m not clear on the basis for the intrusion upon seclusion claim. The tort provides:

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.

Restatement (Second) of Torts 652B.

Generally, intrusion doesn’t involve speech.  It involves invasive actions — snooping, surveillance, trespassing.

Where was the intrusion in this case?

The protest occurred more than 1000 feet away from the funeral and wasn’t seen by the funeral attendees.  It is not clear that there was any disruption of the funeral.

Had the protesters invaded the funeral or disrupted it with noise, then this might constitute an intrusion upon seclusion.  But speaking about an event, even nearby, isn’t an intrusion unless it somehow invades or disrupts privacy.  The facts supplied in Snyder’s cert. petition point out police resources being used to promote safety at the protest and how a nearby school was affected.  But what is notably missing are facts alleging how the protest invaded the funeral itself.

I would like to know precisely what facts establish the intrusion upon seclusion claim.  Without facts to establish an intrusion upon seclusion, this claim should have been dismissed because the elements of the tort weren’t met.  This isn’t a First Amendment issue — it involves whether the requirements of the tort are met.  Based on the facts I’m aware of, I don’t see a cognizable legal claim for intrusion upon seclusion.

Click here for my analysis of the intentional infliction of emotional distress claim.

However, fewer than 15% of people believe their online information will matter in getting hired.

The study was “conducted with 2,500 consumers, HR managers and recruitment professionals in the US, UK, Germany and France.”

According to the study:

In the United States, 89% of recruiters and HR professionals surveyed find it appropriate to consider professional online data when assessing a candidate; 84% of them think it is proper to consider personal data posted online.

As I have indicated previously, most employers who use information they find online [...]]]> According to a study by Microsoft,70% of employers (in the United States) rejected potential employees because of information found out about them online.  Interestingly, the numbers are much less in other countries (41% in the UK, 16% in Germany, and 14% in France)

However, fewer than 15% of people believe their online information will matter in getting hired.

The study was “conducted with 2,500 consumers, HR managers and recruitment professionals in the US, UK, Germany and France.”

According to the study:

In the United States, 89% of recruiters and HR professionals surveyed find it appropriate to consider professional online data when assessing a candidate; 84% of them think it is proper to consider personal data posted online.

As I have indicated previously, most employers who use information they find online about job candidates lack a policy for doing so fairly and ethically (and sometimes legally).   Should prospective employees be told when their employers google them?  Should they have a right to respond?  What procedures are in place to ensure that the information found online in fact relates to the job candidate and not another person with the same name?  Is any distinction made between information that a person voluntarily posts and information others post about them?  Are any steps taken to make sure the information is true and not a spurious rumor?  What boundaries are there for online searching?  Improperly gaining access to a person’s profile on Facebook, for example, could be a violation of law depending upon how it is done.

The Microsoft study is available here.  This data is much more extensive than what I found when I was doing research for The Future of Reputation: Gossip, Rumor, and Privacy on the Internet.   I didn’t have much by way of statistics back in 2007, but I discussed a few interesting anecdotes in Chapter 2.

Below is a chart  from the study listing the kinds of information employers found most discrediting.

Hat tip: Adjunct Law Prof Blog

My dean, Fred Lawrence of George Washington University Law School, has started a new blog called 20th & H.  He writes:

20th and H was conceived as a place for me, as dean, to share with the GW Law community occasional thoughts about the Law School, legal education, and the legal profession, and to talk with you about some of the perspectives and insights I’ve gained through my work on campus and on the road.

Great idea!  Welcome to the blogosphere.

Fred has a recent post about laptops in the classroom:

For many of our students, the laptop has become almost an extension of their selves.  It’s how they take notes, research, write, and communicate; like it or not, those of us [...]]]>

My dean, Fred Lawrence of George Washington University Law School, has started a new blog called 20th & H.  He writes:

20th and H was conceived as a place for me, as dean, to share with the GW Law community occasional thoughts about the Law School, legal education, and the legal profession, and to talk with you about some of the perspectives and insights I’ve gained through my work on campus and on the road.

Great idea!  Welcome to the blogosphere.

Fred has a recent post about laptops in the classroom:

For many of our students, the laptop has become almost an extension of their selves.  It’s how they take notes, research, write, and communicate; like it or not, those of us who were students in a pre-computer age simply can’t roll back the clock to a time when faculty members enjoyed the sight of rows of rapt faces and suffered at worse some inattentive doodling, note passing and an occasional nodding head.

Read more over at 20th & H.

By way of background for those readers not familiar with William Prosser, he was the leading torts scholar of his generation — the undisputed king of the subject throughout the middle of the twentieth century.  And he played a profound role in shaping the privacy torts — four causes of action recognized by most states today.  His article, Privacy, 48 Cal. L. Rev. 383 (1960), still stands as one of the most influential articles [...]]]> I recently posted on SSRN a draft of my forthcoming article (with Professor Neil M. Richards of Washington University School of Law).  The piece is called Prosser’s Privacy Law: A Mixed Legacy, 98 California Law Review __ (forthcoming 2010).  It was written as part of a symposium “Prosser’s Privacy at 50.”

By way of background for those readers not familiar with William Prosser, he was the leading torts scholar of his generation — the undisputed king of the subject throughout the middle of the twentieth century.  And he played a profound role in shaping the privacy torts — four causes of action recognized by most states today.  His article, Privacy, 48 Cal. L. Rev. 383 (1960), still stands as one of the most influential articles in privacy law.

For this symposium, Neil and I examined Prosser’s influence and concluded that his legacy was mixed.  Here’s the abstract of our paper:

This article examines the complex ways in which William Prosser shaped the development of the American law of tort privacy. Although Prosser certainly gave tort privacy an order and legitimacy that it had previously lacked, he also stunted its development in ways that limited its ability to adapt to the problems of the Information Age. His skepticism about privacy, as well as his view that tort privacy lacked conceptual coherence, led him to categorize the law into a set of four narrow categories and strip it of any guiding concept to shape its future development. Prosser’s legacy for tort privacy law is thus a mixed one: He greatly increased the law’s stature at the cost of making it less able to adapt to new circumstances in the future. If tort privacy is to remain vital in the future, it must move beyond Prosser’s conception.

Comments are welcome.

Photos of the nude and decapitated body of a murdered hiker, sought by a writer on assignment for Hustler magazine, will not be released, a judge in Georgia ordered Wednesday. . . .

The judge’s order came on the same day the Georgia House Governmental Affairs Committee unanimously passed “The Meredith Emerson Memorial Privacy Act,” which would prevent gruesome crime scene photos from being publicly released or disseminated, according to Rep. Jill Chambers, the bill’s principal sponsor. DeKalb Superior Court Judge Daniel Coursey issued an order restraining the Georgia Bureau of Investigation from releasing “any and all photographs, visual images or [...]]]> Since I blogged recently about the issue of the privacy of death photos and videos, I thought I’d mention this story I came across from CNN:

Photos of the nude and decapitated body of a murdered hiker, sought by a writer on assignment for Hustler magazine, will not be released, a judge in Georgia ordered Wednesday. . . .

The judge’s order came on the same day the Georgia House Governmental Affairs Committee unanimously passed “The Meredith Emerson Memorial Privacy Act,” which would prevent gruesome crime scene photos from being publicly released or disseminated, according to Rep. Jill Chambers, the bill’s principal sponsor. DeKalb Superior Court Judge Daniel Coursey issued an order restraining the Georgia Bureau of Investigation from releasing “any and all photographs, visual images or depictions of Meredith Emerson which show Emerson in an unclothed or dismembered state.” . . . .

House Bill 1322 would prevent the release of photographs of the bodies of crime victims that are “nude, bruised, bloodied or in a broken state with open wounds, a state of dismemberment or decapitation,” said Chambers.

The story notes that some have First Amendment concerns:

First Amendment lawyers are watching the outcome of this lawsuit and the bill.

“The photos are awful, but it’s also awful to see pictures of people in wars, soldiers fighting or the victims of wars,” said New York attorney Martin Garbus. “I don’t think there should be any kind of censorship because of awfulness.”

Garbus surmised that privacy laws could be applied in this instance but cautioned that even such laws could be considered limitation of free speech.

But this case isn’t about “censorship.”  No speech is being censored.  Hustler is just being denied certain materials it wants to use in its speech.  It doesn’t have a First Amendment right to obtain whatever photos or other information it desires.

The First Amendment doesn’t mandate that the government disclose all records in its possession. In Los Angeles Police Department v. United Reporting Publishing Co., 528 U.S. 32 (1999), the Supreme Court concluded that the government may selectively grant access to public record information.  As long as the government avoids “prohibiting a speaker from conveying information that the speaker already possesses” it can deny access “to information in its possession.”

I’ve long thought that the public disclosure of 911 calls violates the privacy of the callers.  Many 911 calls involve people calling for medical reasons, and matters about their physical or mental health are discussed in the call.  Doctors and nurses are under a duty of confidentiality, so why not 911 call centers, especially when people are revealing medical information?

The call about Osmond’s son was by a witness.  But suppose a person who attempted suicide called 911 and asked [...]]]> Whenever there’s a story these days about an emergency 911 call, the call is often disclosed to the public.  Recently, there was news of yet another public disclosure of a 911 call, this time a call by a woman who witnessed the suicide of Marie Osmond’s son.

I’ve long thought that the public disclosure of 911 calls violates the privacy of the callers.  Many 911 calls involve people calling for medical reasons, and matters about their physical or mental health are discussed in the call.  Doctors and nurses are under a duty of confidentiality, so why not 911 call centers, especially when people are revealing medical information?

The call about Osmond’s son was by a witness.  But suppose a person who attempted suicide called 911 and asked for an ambulance.  This would reveal highly sensitive medical information about the person and the fact the person attempted suicide.

Recently, the Associated Press ran a story on the issue of public disclosure of 911 calls:

Linda Casey dialed 911 and screamed, “Oh, God!” over and over again into the phone after finding her daughter beaten to death in the driveway of their North Carolina home.

Later that day, she heard the 911 recording on the local news and vomited.

“This was not only the most painful thing I have ever been through, it should have been the most private,” she said in an e-mail.

Because of situations like Casey’s, lawmakers in Alabama, Ohio and Wisconsin are deciding whether to bar the public release of 911 calls.

Missouri, Pennsylvania, Rhode Island and Wyoming already keep such recordings private. But generally, most states consider emergency calls public records available on request, with exceptions sometimes made for privacy reasons or to protect a police investigation.

AP, States Eye Ban on Public Release of 911 Calls (Feb. 23, 2010).

Since I blogged recently about the constitutional right to information privacy, it readily comes to mind in this context.  In Whalen v. Roe, 429 U.S. 589 (1977), the Supreme Court held that the right to privacy protects not only “independence in making certain kinds of important decisions” but also the “individual interest in avoiding disclosure of personal matters.”  This latter interest — the constitutional right to information privacy — is recognized by most federal circuit courts.

In Kallstrom v. City of Columbus, 136 F.3d 1055 (6th Cir. 1998), the 6th Circuit held that a city couldn’t disclose the addresses, phone numbers, financial information, Social Security numbers, and other personal information of police officers, as required by Ohio’s Public Records Act, because it violated the officers’ constitutional right to information privacy.  The fact that a state designates information as a public record doesn’t immunize it from its constitutional obligations not to violate the privacy rights of its citizens.

Thus, despite the fact that states make 911 calls available to the public, I believe there’s an argument that doing so violates people’s constitutional right to information privacy.

And normatively, unless there’s a compelling reason, 911 calls shouldn’t be released absent the caller’s consent.  Of course, one might argue that public disclosure of the calls is important for the public to vet how well the 911 operators respond to calls, but this would not likely be impeded by first obtaining people’s consent to release the call.  I would think that if 911 operators didn’t handle the call well, most people would consent to disclosure so the 911 center could be held accountable.

Moreover, performance could be more accurately measured by studying the calls more systematically rather than releasing particular calls (typically about celebrities or highly-publicized incidents).

Far too often, 911 calls are made available for the prurient interest and entertainment of the public.  I don’t think hearing the calls adds much to public discourse.   In my view, in most cases, the balance tips toward keeping the calls confidential.

Brancheau’s family announced this week that they would seek an injunction to protect the release of the death imagery, captured by SeaWorld’s surveillance cameras on Feb. 24. And though the video has not yet been publicly released, it’s presently in the hands of the Florida Orange County Sheriff’s Office, which is investigating the woman’s death.

According to FoxNews:

The Orange County Sheriff’s Office, who now has the video, has received several calls from sources trying to obtain copies of the video, the Orlando Sentinel reported.Once the Orange County Sheriff’s Office concludes its investigation, the material would become public under [...]]]> Jessica Bennett at Newsweek brought my attention to a story about the family of the killer whale trainer (Dawn Brancheau) who was killed while training the whale at SeaWorld:

Brancheau’s family announced this week that they would seek an injunction to protect the release of the death imagery, captured by SeaWorld’s surveillance cameras on Feb. 24. And though the video has not yet been publicly released, it’s presently in the hands of the Florida Orange County Sheriff’s Office, which is investigating the woman’s death.

According to FoxNews:

The Orange County Sheriff’s Office, who now has the video, has received several calls from sources trying to obtain copies of the video, the Orlando Sentinel reported.Once the Orange County Sheriff’s Office concludes its investigation, the material would become public under Florida law. . . .

Brancheau’s family said through a spokesman that public airing of the killing would only worsen their grief.They could seek a court injunction to stop the release, at least temporarily. The family has been consulting the lawyer who represented Dale Earnhardt’s widow in a court fight over his autopsy photos.

I believe that the Brancheau family has a good case.  They want to prevent the sad events that happened to the family of Nikki Catsouras, whose gruesome accident death photos started appearing all over the Internet.  In that case, the court held that the family could bring common law privacy claims against the police department for improperly leaking the photographs.

In this instance, the video might be required to be disclosed by public records law, so tort privacy claims would likely not be available against the government if they conflicted with state disclosure obligations or against others who disseminated the video post-disclosure (due to First Amendment protection).

Thus, the family’s redress could come in two possible forms: (1) a provision of the public record law that would not allow for the disclosure of the video; or (2) a constitutional right to information privacy challenge.

Regarding Florida public records law, the Earnhardt Family Protection Act prohibits the disclosure of autopsy photos.  It was enacted because of concerns over the distribution of autopsy photos of race car driver Dale Earnhardt, who died in a crash on the race track.

The Earnhardt Family Protection Act, Fla. Stat. ch. 406.135 (2001), provides, in part:

A photograph or video or audio recording of an autopsy held by a medical examiner is confidential and exempt from s. 119.07(1) and s. 24(a), Art. I of the State Constitution, except that a surviving spouse may view and copy a photograph or video recording or listen to or copy an audio recording of the deceased spouse’s autopsy. . . .

The law doesn’t completely bar disclosure of autopsy materials — it allows them to be disclosed pursuant to a court order:

In determining good cause, the court shall consider whether such disclosure is necessary for the public evaluation of governmental performance; the seriousness of the intrusion into the family’s right to privacy and whether such disclosure is the least intrusive means available; and the availability of similar information in other public records, regardless of form.

The Brancheau family has a good chance of blocking the release of the video under this law.

Second, the Brancheau family could raise a constitutional right to information privacy challenge.  The constitutional right to information privacy provides protection if a person has a privacy interest, if government officials violated that interest by disclosing personal information, and if the privacy interest isn’t outweighed by the government’s interest in disclosure.

One of the most important and unresolved quandaries of First Amendment jurisprudence involves when civil liability for speech will trigger First Amendment protections. When speech results in civil liability, two starkly opposing rules are potentially applicable. Since New York Times v. Sullivan, the First Amendment requires heightened protection against tort liability for speech, such as defamation and invasion of privacy. But in other contexts involving civil liability for speech, the First Amendment provides virtually no protection. According to Cohen v. Cowles, there is no First Amendment scrutiny for [...]]]> I’ve been meaning to announce, but keep forgetting to get around to it, that my article with Neil Richards was recently published — Rethinking Free Speech and Civil Liability, 109 Columbia Law Review 1650 (2009).  Here’s the abstract:

One of the most important and unresolved quandaries of First Amendment jurisprudence involves when civil liability for speech will trigger First Amendment protections. When speech results in civil liability, two starkly opposing rules are potentially applicable. Since New York Times v. Sullivan, the First Amendment requires heightened protection against tort liability for speech, such as defamation and invasion of privacy. But in other contexts involving civil liability for speech, the First Amendment provides virtually no protection. According to Cohen v. Cowles, there is no First Amendment scrutiny for speech restricted by promissory estoppel and contract. The First Amendment rarely requires scrutiny when property rules limit speech.

Both of these rules are widely-accepted. However, there is a major problem – in a large range of situations, the rules collide. Tort, contract, and property law overlap significantly, so formalistic distinctions between areas of law will not adequately resolve when the First Amendment should apply to civil liability. Surprisingly, few scholars and jurists have recognized or grappled with this problem.

The conflict between the two rules is vividly illustrated by the law of confidentiality. People routinely assume express or implied duties not to disclose another’s personal information. Does the First Amendment apply to these duties of confidentiality? Should it? More generally, in cases where speech results in civil liability, which rule should apply, and when? The law currently fails to provide a coherent test and rationale for when the Sullivan or Cohen rule should govern. In this article, Professors Daniel J. Solove and Neil M. Richards contend that the existing doctrine and theories are inadequate to resolve this conflict. They propose a new theory, one that focuses on the nature of the government power involved.

In Columbia Law Review’s Sidebar, Professor Timothy Zick has a very thoughtful response piece entitled “Duty-Defining Power” and the First Amendment’s Civil Domain.

Fortunately, I managed to find the now-hidden poll results, and they are indeed quite surprising.

I believe the Supreme Court will reverse.  As I argued in my previous post, I hope it will not reverse based on a conclusion that the constitutional right to information privacy doesn’t exist.  Instead, the 9th Circuit’s opinion expands the constitutional right to information privacy far beyond its current contours.

I. The Constitutional Right to Information Privacy

In Whalen v. Roe, 429 U.S. 589 (1977), the Supreme Court held [...]]]> As I wrote in a previous post, the U.S. Supreme Court granted cert. on NASA v. Nelson, 512 F.3d 1134 (9th Cir. 2008), a case where NASA required employees to answer questions about very private matters.  The U.S. Court of Appeals for the 9th Circuit granted a preliminary injunction because the questions violated the constitutional right to information privacy.

I believe the Supreme Court will reverse.  As I argued in my previous post, I hope it will not reverse based on a conclusion that the constitutional right to information privacy doesn’t exist.  Instead, the 9th Circuit’s opinion expands the constitutional right to information privacy far beyond its current contours.

I. The Constitutional Right to Information Privacy

In Whalen v. Roe, 429 U.S. 589 (1977), the Supreme Court held that the right to privacy protects not only “independence in making certain kinds of important decisions” but also the “individual interest in avoiding disclosure of personal matters.”  This latter interest has become known as the constitutional right to information privacy.

Whalen involved a challenge to a reporting requirement to the government of certain prescription drugs (many of which were considered controlled substances if not properly prescribed).  The Supreme Court concluded that because the records would be kept confidential and highly secure (the storage facility had many security safeguards), the plaintiffs’ rights weren’t violated.

The focus of the constitutional right to information privacy is a duty to avoid disclosure. The right allows disclosure if the government has a compelling interest that outweighs the privacy interest.  So the way courts address the constitutional right to information privacy is to balance the government’s interest in disclosure against the plaintiffs’ interest in privacy.

But NASA v. Nelson didn’t involve disclosure.  It involved collection. The constitutional right to information privacy isn’t focused around questioning people or gathering information — it is about protecting against unwarranted disclosure. The only other case I’m aware of where a court has used the constitutional right to information privacy to bar information gathering is another 9th Circuit case — Norman-Bloodsaw v. Lawrence Berkeley Laboratory, 135 F.3d 1269 (9th Cir. 1998).  There, a government lab tested prospective employees blood and urine for syphilis, sickle cell anemia, and pregnancy without their knowledge and consent.  The 9th Circuit held that the testing violated the constitutional right to information privacy, concluding: “Although cases defining the privacy interest in medical information have typically involved its disclosure to ‘third’ parties, rather than the collection of information by illicit means, it goes without saying that the most basic violation possible involves the performance of unauthorized tests.”

But the 9th Circuit’s expansion of the constitutional right to information privacy, however normatively desirable, is not consistent with the bulk of the caselaw.

The only way I see a potential violation of the constitutional right to information privacy based on the probing questions NASA asked is if the information wasn’t protected with adequate security after being collected or if there was an indication by NASA that it would disclose the information.

The cert. questions, it is explicitly noted that the information is “protected under the Privacy Act, 5 U.S.C. 552a.”

My sense is that if the Supreme Court wants to rule narrowly in this case, it can do so as follows:

1. The constitutional right to information privacy protects against unwarranted disclosure of personal information.  It doesn’t protect against the collection of data.

2. The government is under a legal obligation pursuant to the Privacy Act to avoid disclosing the data.

3. The plaintiffs can prevail only if they show that the government fails to provide adequate security to the information.

II. The First Amendment

There is one potential theory that could protect plaintiffs — the First Amendment.   The Supreme Court’s grant of cert. focuses on the constitutional right to information privacy, so I doubt the Court will reach the First Amendment issues.  But in Shelton v. Tucker, 364 U.S. 479 (1960), the Court held that the First Amendment right to free association was violated by asking overly broad questions for state employment as teachers.

Shelton involved  an “Arkansas statute [that] compels every teacher, as a condition of employment in a state-supported school or college, to file annually an affidavit listing without limitation every organization to which he has belonged or regularly contributed within the preceding five years.”   The Court held:

The question to be decided here is not whether the State of Arkansas can ask certain of its teachers about all their organizational relationships. It is not whether the State can ask all of its teachers about certain of their associational ties. It is not whether teachers can be asked how many organizations they belong to, or how much time they spend in organizational activity. The question is whether the State can ask every one of its teachers to disclose every single organization with which he has been associated over a five-year period. The scope of the inquiry required by Act 10 is completely unlimited. The statute requires a teacher to reveal the church to which he belongs, or to which he has given financial support. It requires him to disclose his political party, and every political organization to which he may have contributed over a five-year period. It requires him to list, without number, every conceivable kind of associational tie — social, professional, political, avocational, or religious. Many such relationships could have no possible bearing upon the teacher’s occupational competence or fitness.

In a series of decisions, this Court has held that, even though the governmental purpose be legitimate and substantial, that purpose cannot be pursued by means that broadly stifle fundamental personal liberties when the end can be more narrowly achieved. The breadth of legislative abridgment must be viewed in the light of less drastic means for achieving the same basic purpose.

The questions asked by NASA were quite broad:

(Form 42), which asks whether the recipient has “any reason to question [the applicant’s] honesty or trustworthiness” or has “any adverse information about [the applicant’s] employment, residence, or activities” concerning “violations of law,” “financial integrity,” “abuse of alcohol and/or drugs,” “mental or emotional stability,” “general behavior or conduct,” or “other matters.”

These broad questions might implicate associational or expressive activity.  If so, there’s an argument that the First Amendment requires they be more circumscribed.

This argument is somewhat of a stretch, but I think it has some plausibility.

Regardless, the Court’s cert. grant appears focused on the constitutional right to information privacy, and I see the Court reversing the 9th Circuit’s decision.

There is a lot at stake in this case, for it potentially involves whether or not a constitutional right exists — the little-known constitutional right to information privacy.  Despite its obscurity, this right is recognized by the vast majority of federal circuit courts and there [...]]]> The U.S. Supreme Court has just granted cert. on NASA v. Nelson, 512 F.3d 1134 (9th Cir. 2008).  In this case, NASA required employees to undergo background checks and answer questions about very private matters,including “any adverse information” about financial integrity, alcohol and drug abuse, and mental and emotional stability.  Plaintiffs, a group of “low risk” contract employees, sought a preliminary injunction that the investigation violated their constitutional rights.  The U.S. Court of Appeals for the 9th Circuit granted the injunction.

There is a lot at stake in this case, for it potentially involves whether or not a constitutional right exists — the little-known constitutional right to information privacy.  Despite its obscurity, this right is recognized by the vast majority of federal circuit courts and there are scores of decisions involving this right.

Here are the issues cert. was granted on:

1. Whether the government violates a federal contract employee’s constitutional right to informational privacy when it asks in the course of a background investigation whether the employee has received counseling or treatment for illegal drug use that has occurred within the past year, and the employee’s response is used only for employment purposes and is protected under the Privacy Act, 5 U.S.C. 552a.

2. Whether the government violates a federal contract employee’s constitutional right to informational privacy when it asks the employee’s designated references for any adverse information that may have a bearing on the employee’s suitability for employment at a federal facility, the reference’s response is used only for employment purposes, and the information obtained is protected under the Privacy Act, 5 U.S.C. 552a.

The cert. questions are narrowly posed, so there’s hope the Supreme Court will not eliminate the right.  But I see it as a possibility.  Ultimately, I believe the following:

1. The constitutional right to information privacy does (and should) exist.

2. The court’s holding in NASA v. Nelson constitutes a big expansion of the constitutional right to information privacy.  It doesn’t follow from most of the cases interpreting that right.

3. There may be a First Amendment argument to support the plaintiffs.

I will address the first contention in this post, and the other two in a subsequent post.

The constitutional right at issue is a little-known spinoff right to the constitutional right to privacy, most famously declared in Griswold v. Connecticut, 381 U.S. 478 (1965) and Roe v. Wade, 410 U.S. 113 (1973).  In these cases, the Supreme Court recognized that the Constitution protects a “right to privacy” grounded in the First, Third, Fourth, Fifth, and Ninth Amendments.  The Supreme Court issued an extensive line of cases involving the constitutional right to privacy, and these cases have generally involved freedom from government interference in making certain kinds of private decisions about one’s health, contraception, child-rearing, and abortion.

The constitutional right to information privacy emerged in a case called Whalen v. Roe, 429 U.S. 589 (1977). The case involved a government record system of people taking prescriptions for certain medications. Although the government promised that the information was confidential and secure, the plaintiffs feared the possibility of the information leaking out.

The Supreme Court began its opinion by noting that the right to privacy protects not only “independence in making certain kinds of important decisions” but also the “individual interest in avoiding disclosure of personal matters.” Ultimately, the Court concluded that the plaintiffs lost because the government provided adequate security to the information, thus meeting its constitutional obligations to avoid disclosure. At the end of the opinion, the Court stated:

We are not unaware of the threat to privacy implicit in the accumulation of vast amounts of personal information in computerized data banks or other massive government files. . . . The right to collect and use such data for public purposes is typically accompanied by a concomitant statutory or regulatory duty to avoid unwarranted disclosures. . . . [I]n some circumstances that duty has its roots in the Constitution.

There has long been a debate about what the Court was doing in Whalen. Some believe that the discussion of the constitutional right to information privacy was just dicta, and the Court was just reiterating an argument plaintiffs in that case made and than waxing eloquent at the end of the opinion.  But I don’t believe this is the case.

In addition to Whalen, the Supreme Court decided one other case involving the constitutional right to information privacy — Nixon v. Administrator of General Services, 433 U.S. 425 (1977).  President Nixon asserted a privacy interest in his communications and records while President.  The Court concluded that the Constitution protected the privacy of his personal communications with his family but not his records dealing with his official duties.  In so holding, the Court cited Whalen:

One element of privacy has been characterized as “the individual interest in avoiding disclosure of personal matters. . . .” Whalen v. Roe, 429 U.S. 589 599 (1977). We may agree with appellant that, at least when Government intervention is at stake, public officials, including the President, are not wholly without constitutionally protected privacy rights in matters of personal life unrelated to any acts done by them in their public capacity. Presidents who have established Presidential libraries have usually withheld matters concerned with family or personal finances, or have deposited such materials with restrictions on their screening.

Whalen and Nixon were the only two Supreme Court cases to mention the constitutional right to information privacy.

But in subsequent years, a majority of federal circuit courts have explicitly recognized the right, including the 2nd, 3rd, 4th, 5th, 7th, and 9th Circuits.  The 6th Circuit recognizes the right, but less broadly than the circuit courts above.  “Absent a clear indication from the Supreme Court we will not construe isolated statements in Whalen and Nixon more broadly than their context allows to recognize a general constitutional right to have the disclosure of private information measured against the need for disclosure.”  J.P. v. DeSanti, 653 F.2d 1080, 1090 (6th Cir. 1981).  The only circuit to express doubts about the constitutional right to information privacy is the D.C. Circuit.

I believe that the constitutional right to information privacy exists, and it ensures that whenever the government collects personal information, it has a duty to avoid unwarranted disclosures.  This duty consists in avoiding the intentional disclosure of the information when there isn’t a compelling reason to do so.  It also consists in providing adequate data security.

I hope that the Supreme Court does not use NASA v. Nelson as an opportunity to eliminate the constitutional right to information privacy.  For one, I’d have to do a major revision of my casebook since I include many cases involving this right, see Daniel J. Solove & Paul M. Schwartz, Information Privacy Law (3rd ed. 2009) — and that certainly wouldn’t be fun!  But more importantly, the constitutional right to information privacy serves a profound function in today’s Information Age.  The government has vast powers to gather personal information and maintains extensive dossiers of people’s data, and this information can be very sensitive, critical to people’s reputations and well-being, and the leaking of it can result in serious harm.  I doubt we can go back to the early days of government where not much personal data was collected.  But if the government is going to keep our data, it should have a responsibility to avoid unwarranted disclosures and to keep it secure.  The constitutional right to information privacy is a sensible extension of the right to privacy.

I will address the specific holding in NASA v. Nelson in a subsequent post.