The Tort of Privacy’s Racist Past
As New York Times v. Sullivan made clear, defamation has a bigoted past. There, Montgomery, Alabama’s police commissioner brought a defamation suit against The New York Times after it published an advertisement, “Heed Their Rising Voices,” which suggested law enforcement’s interference with civil rights protests. Sullivan based his defamation suit on this premise: accusations of racism hurt my reputation in Montgomery, Alabama. At the time, it was a truly laughable proposition given the racial hatred so prevalent in the white community there. No matter, Sullivan and others after him tried to use the law of defamation to silence mostly Northern papers writing about Southern bigotry and officially sanctioned violence against civil rights leaders and others.
In writing a piece entitled Mainstreaming the Tort of Privacy (forthcoming Cal. L. Rev.), I stumbled across Afro-American Publishing v. Jaffe, 366 F.2d 649 (D.C. Cir. 1966), a case that told a Sullivan-esque story but with a privacy twist. A white drug store owner sued the Washington Afro-American (the “Afro”), a D.C.-based, bi-weekly paper, for invasion of privacy and libel. The plaintiff sold the Afro in his drugstore, and canceled it because the paper “spread racial hatred and distrust.” In the October 14, 1961 edition of the Afro, the paper covered plaintiff’s cancellation of the Afro, noting that plaintiff had told Afro’s editor that his black customers had a “low level of intelligence” and were ignorant. Plaintiff prevailed at trial on the privacy and libel claims.
The D.C. Circuit, writing en banc, recognized the common law right to privacy in the District of Columbia based on the Warren and Brandeis formulation of a person’s “right of private personality,” the “right to be let alone.” The court noted that much like in 1890 when Warren and Brandeis wrote The Right to Privacy, the “communications explosion” and “mechanical and electronic devices for snooping” of the 1960s imperiled privacy. Although the D.C. Circuit noted that the right of privacy stands on “high ground, cognate to the values and concerns protected by constitutional guarantees,” it is not absolute and must permit the press to publish discussions vital to democracy. As the court held, “[w]hen a proprietor of a news vending outlet in a predominantly Negro neighborhood discontinues the handling of a newspaper oriented to Negro readers, the matter is appropriate for newspaper discussion . . . without fear of an overhanging action for invasion of privacy.”
This case reminds us that just as batterers invoked the mantle of privacy to hide domestic violence, some used the tort of privacy to silence media attention to bigotry. (There are no doubt better cases for the point, but I use this one just because I found it seredipitiously). This case brings to mind Lior Strahelivitz’s important work in Reputation Nation: Law in an Era of Ubiquitous Personal Information, 102 Northwestern L. Rev. 1667 (2008), where he explores how information privacy protections can undermine antidiscrimination law and how government can in certain circumstances reduce the prevalence of unlawful discrimination by publicizing previously private information about individuals. A fascinating read on the promise of sunlight.