Category: First Amendment

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Unmasking a Judge’s Anonymity: Saffold v. Plain Dealer Publishing Co.

In a very interesting case, Saffold v. Plain Dealer Publishing Co., a state court judge (Shirley Strickland Saffold) is suing the Cleveland Plan Dealer for stating that comments posted on the newspaper’s website under the screen name “lawmiss” originated from a computer used by the judge and/or her daughter.  Some of these comments related to cases before Judge Saffold.

As Kashmir Hill writes:

Sydney Saffold, 23, “a one-time law student” claims she made the comments associated with her mom’s account. . . . .

The Cleveland Plain Dealer is putting Saffold on trial. A public records request revealed that some of the articles involved were accessed on Saffold’s court-issued computer at the exact times and dates of three comments posted by Lawmiss.

Judge Saffold denies that she made any of the over 80 comments posted by Lawmiss on the cleveland.com website.

Here’s the Cleveland Plain Dealer story.

In her complaint Judge Saffold raises the following claims: fraud, defamation, tortious interference, breach of contract, promissory estoppel, and invasion of privacy.

Here’s my assessment of some of the claims raised (and not raised) in the complaint.

Invasion of Privacy. Invasion of privacy actually consists of the four Warren and Brandeis privacy torts, and the complaint appears to discuss two of them — public disclosure of private facts and false light.  I don’t know enough about the facts to opine on the false light claim, but the plaintiffs will have a tough time establishing the public disclosure tort since the story is likely to be found newsworthy — of “legitimate concern to the public.”  Whenever a story is newsworthy, plaintiffs cannot sustain an action for public disclosure of private facts.

Breach of Contract. Judge Saffold claims that the newspaper’s disclosure of the identity of “lawmiss” violated its website’s privacy policy which states that “personally identifiable information is protected.”    The difficulty with this claim is that thus far, courts have held that privacy polices don’t constitute contracts — they are mere statements of policy.  See, e.g., Dyer v. Northwest Airlines Corp., 334 F.Supp.2d 1196 (D.N.D. 2004).  The issue, though, hasn’t been widely litigated, so the law here isn’t well-settled.  For an interesting discussion of the issue, see Allyson W. Haynes, Online Privacy Policies: Contracting Away Control Over Personal Information?, 111 Penn. St. L. Rev. 587 (2007).

In this case, there’s more than just a privacy policy — there’s also a user agreement as part of the registration process to create an account on the website.  Courts may see user agreements as more akin to contracts than privacy policies, and the user agreement in this case incorporated the privacy policy.

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Public/Private Divides, Law Clinics, and the Role of Educational Institutions

The New York Times reports that law clinics that take on large corporations are under pressure from private companies. The pressure has resulted in some saying that state dollars should not be used to allow clinics to take on “controversial issues.” Frankly, if educational institutions aren’t supposed to take on controversial issues, they will cease to be places where new ideas from any perspective, left, right, or center, are explored and used to test what our society is doing. Sanitizing schools so that only non-controversial issues are addressed is a mistake.

One proposal before the Maryland legislature would cut state funding to a “clinic if it does not provide details to the legislature about its clients, finances and cases.” I am not certain, but I think that move has some free speech and confidentiality problems. For now I call that question out for others to ponder. The part about the story that I am wondering about is the relationship between funders and schools.

The Times piece indicates that several other state law schools are facing similar scrutiny. If public law schools must cut back on clinics, would private law schools expand their offerings? Private schools might, if there is a demand, is one argument. But what is that demand? Is it the training before entering the profession issue? Given the recent focus on the problems of internships without pay, getting rid of clinics could exacerbate the lack of meaningful ways for students to get some practice experience. If so, then public schools already challenged by lack of funding might face an exodus of students to private schools because those schools simply offer the chance for training. In other words, if public schools have to abandon or reduce their clinic offerings, would certain students who could not afford private schools miss out on an important training opportunity?

Then again, private and public schools in general must continually navigate the tension between pursuing the school’s varied goals and funders’ interests in squashing pursuits that may conflict with funders’ business goals. Any major industry is of course sensitive to any questions about its practices. Public and private schools by now have learned that must try to navigate the receipt of donor funds so that they don’t impede the schools’ research interests. Yet, as I understand it, the smaller the school and/or its endowment, the more difficult it is to avoid strings and pressure from the funder. With all schools struggling to find funding whether because of over-reliance on endowment income or shrinking state money, the ability of funders to exert influence over schools is likely to increase. If so, questions about public interest funding, the role of educational institutions in questioning society’s practices, and the value of having skeptics are more important than ever.

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Snyder v. Phelps: Intentional Infliction of Emotional Distress and the First Amendment

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.

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Snyder v. Phelps: Funeral Picketing, the First Amendment, and the Intrusion Upon Seclusion Tort

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.

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William Prosser and the Privacy Torts

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.

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Privacy of Death Photos and Videos

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.”

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Is Disclosing a 911 Call to the Public a Privacy Violation?

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.

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The SeaWorld Killer Whale Death Video and the Right to Privacy

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.

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Rethinking Free Speech and Civil Liability

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.

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NASA v. Nelson: The Merits of the Case

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.

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