Category: First Amendment


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.”


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.


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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Clare Boothe Luce and the Press

Clare Boothe Luce was ahead of her time in many things.  In the 1930s and 1940s, she edited major magazines, gained fame for her play writing and journalism, and served as a Republican congresswoman.  She later represented the United States as the ambassador to Italy.  In a speech to the Women’s National Press Club on April 21, 1960, Luce asked “What’s Wrong  with the American Press?”  Even as she hailed the American press as the “best press in the world,” she chastised it for debasing popular taste.  She argued that “A large, unmeasurable percentage of the total editorial space in American newspapers is concerned not with public affairs or matters of stately importance.  It is devoted instead to entertainment, titilation, amusement, voyeurism, and tripe.”  She continued: “One could note that nowadays the banner of press freedom is more often raised in matters of printing crime, sex, and scandal stories than it is in matters of printing the truth about great national figures, policies, and issues.”  Luce lamented that members of the working press often sacrificed candor to curry favor with the White House, political parties, corporations, or trade unions.  The press had lost its public mission in favor of personal interest.

Luce’s speech updated the kind of deep dissatisfaction that Warren and Brandeis articulated in their seminal article The Right to Privacy.  They wrote in 1890, when the penny press eschewed the serious for the sensational and the frivolous, publishing pictures of society members and writing about their parties.  Interestingly, Luce’s speech came just in the midst of the civil rights movement, when the press fought hard and with much at stake for their right to expose Southern racism in New York Times v. Sullivan and the like.  Her dissatisfaction with the press seems out of place given the larger struggles that the media had in ensuring, as Meiklejohn noted, that “everything worth saying shall be said.”

In this sense, Luce was ahead of her time (as she was in other parts of her life).  The press of which she speaks sounds closer to today’s National Inquirer, Star, and TMZ.  It recalls sites like The Dirty, which publishes embarrassing pictures of bed-hopping and drug-taking women and botox-using, club-going, and skanky-dressing men.

This trend — which would surely garner Luce’s disapproval — has given new life to the public disclosure of private facts tort.  As Amy Gajda explores in her superb article “Judging Journalism: The Turn Toward Privacy and Judicial Regulation of the Press,” courts in the early twentieth century responded to the sensational press by recognizing public disclosure of private facts actions.  In the New York Times v. Sullivan era, the pendulum swung back in favor of the press with courts embracing a robust view of the newsworthiness element of the tort to prevent the chilling of the media struggling to write about issues of public concern.  As Gajda explains, the public disclosure tort, however, of late has made a comeback with courts second-guessing the media on the newsworthiness of its stories, using (or more accurately, misusing) journalist ethical guides in upholding public disclosure claims.  Read More


Book Review: Freedom and its Excesses

Free Speech: A Very Short Introduction by Nigel Warburton. Oxford University Press, 2009, pp. 115. Paper: $11.95.

What do you get with freedom?  Excesses! Exploitation!  And what does one say to that? A small price to pay. . . Without free communication . . . we don’t have a free society.

— Hugh Hefner

Shortly before he became the darling of liberals, Justice Oliver Wendell Holmes first defended and then cabined the principle of free expression: “The First Amendment,” he wrote, “prohibit[s] legislation against free speech.” But then, as he continued his thought, he stressed the obvious: it was not “intended to give immunity for every possible use of language.”  It’s an old saw, one Holmes invoked in his cramped opinion in Frohwerk v. United States (1919). “A little breath” of the wrong kind of expression, he added, “would be enough to kindle a flame.” Result:  First Amendment claim denied.

To defend freedom, one must be a risk-taker.  To recast it in metaphoric vernacular, one must be willing to let a few fires burn.  In the end, those who would protect free speech must be prepared to defend its excesses.  For example, under our federal and state constitutions, some kinds of hurtful, disruptive, and hateful speech are protected.  So, too, is  blasphemous speech as well as many kinds of generally offensive speech, “worthless” and “mindless” speech, and even certain kinds of sexual expression, even when lewd and exploitative.

Like it or not, that is the creed of modern America’s law of free speech.  It is a creed of libertarian-like toleration, one grounded in an idea that not even Voltaire ever expressly defended, if only because he never said “I despise what you say, but will defend to the death your right to say it.”  (Apparently, Evelyn Beatrice Hall coined the phrase in a 1906 work on Voltaire.)

But Nigel Warburton, a philosopher at the Open University based in the U.K., appears willing to openly champion what old Voltaire never did. “Freedom of speech is worth defending vigorously,” he writes in Free Speech: A Very Short Introduction, “even when you hate what is being spoken.”  So just how far is he prepared to go?  Metaphorically put, how many fires will he let burn in the name of this beloved principle?

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Natural Law, Imperialism, and the Birth of Free Exercise Jurisprudence

I have been researching Reynolds v. United States (1879), the Supreme Court’s first Free Exercise case, on and off for several years. For those who are interested, my paper on the topic is now available for download at SSRN. My interest in the case is historical rather than doctrinal. I am interested in what Reynolds, which held that religious polygamy was not protected by the First Amendment, and the anti-polygamy crusade that followed tell us about constitutional politics in the nineteenth century. Historians have generally situated the case within the context of the post-Civil War politics of Reconstruction. The anti-polygamy crusade kicked off by Reynolds is seen as an extension of Reconstruction into the West. I offer a new interpretation.

I began my research by asking myself what the theory of the First Amendment put before the Court by the Reynolds’s lawyers looked like. The Court — following the arguments of the Attorney General — characterized the Mormons as claiming that all religiously motivated action was exempt from the criminal law. This sort of absolutist position, the Court and the government pointed out, would allow absurd results such as the inability to criminalize religiously motivated murders. The Court, however, was knocking down a straw man. The Mormons never in fact made this claim. Rather, they argued that the First Amendment only protected religiously motivated conduct that was not malum in se, that is wrong in and of itself as opposed to being wrong merely because of the law (malum prohibitum). Actions could be judges as malum in se, they went on to argue, by appeal to a set of well-established natural law arguments. These arguments were based in part by a series of more-or-less positive analogies to non-Western legal systems. The Court responded implicitly to this argument by analogizing Mormons to Indians and the federal government to the British Raj. In other words, the Court in effect looked at “The Mormon Question” through the lens of imperialism.

This imperial analogy was more than a one-off rhetorical fillip in the Court’s opinion. It shows up all over the anti-polygamy battles, where it is important for distinguishing the situation in Utah from the situation in the Reconstruction and post-Reconstruction South. It also gets picked up on in the first generation of cases that invoke Reynolds and its progeny as precedent. These cases, known as The Insular Cases, arose in the context of the United States’ conquest of the Philippines in the Spanish American War of 1898 and addressed the question of the federal government’s authority to engage in imperialism and colonialism abroad. In these cases Reynolds was seen not as a First Amendment case as much as a case about the scope of Congressional power over a conquered people. My paper thus suggests that Reynolds and the anti-polygamy battles need to be seen not only in the context of the domestic debates over Reconstruction that proceeded them. Rather, Reynolds and its heirs must also be seen as a prelude to the international debates over imperialism that followed the Spanish American War.

For those interested, here is an abstract of the paper: Read More


Book Review: The Universal First Amendment – Bold Ideas for Press Freedom in a Global Era

bollinger-leeUninhibited, Robust and Wide-Open: A Press for a New Century by Lee C. Bollinger. Oxford University Press, 2010, pp. 210. Cloth: $21.95.

Thirty or so years ago I had the honor of working with Robert Maynard Hutchins (then at the Center for the Study of Democratic Institutions) to help organize a two-day conference on constitutional law. Hutchins knew all of the luminaries of the day and invited notables such as Charles Black, Henry Steele Commager, Max Lerner, Louis Pollak, Ruth Bader Ginsburg, Laurence Tribe, Jesse Choper, and Charles Wyzanski. He turned to me, then a recent law graduate, to help identify some of the “up and coming players” in constitutional law – people who would “make a name for themselves and leave a mark on the law.” Happily, I obliged him and recommended, among others, Steve Shiffrin (UCLA) and C. Edwin Baker (Oregon). Oh, there was one other person I recommended; he was then an associate professor at the University of Michigan – Lee Carroll Bollinger.

Back then, in a cogent essay entitled “Elitism, The Masses & the Idea of Self-Government” (published in Constitutional Government in America), Professor Bollinger expressed concern about the “‘central meaning of the First Amendment,’” particularly as it pertained to broadcast regulation. Since then he has revisited that general concern, in one way or another, in a variety of thoughtful works such as The Tolerant Society (1986), Images of a Free Press (1991), and Eternally Vigilant (2002) co-edited with Geoffrey R. Stone. Now, with the recent publication of Uninhibited, Robust and Wide-Open, Lee Bollinger (president of Columbia) returns, yet again, to the grand optimism expressed by Justice William Brennan in New York Times Co. v. Sullivan (1964), from which the title of his latest book derives.

The book is the eighth installment in Oxford’s Inalienable Rights Series edited by Professor Stone.  Bollinger is a sensible pick given his background as an esteemed First Amendment scholar and as a university president whose toleration has been tested by both campus free speech protestors (see NYT, Oct. 22, ‘06) and by critics outraged by his willingness to allow Iran’s president to speak at Columbia (see WSJ, Sept. 24, ‘07).  He also serves as a director of the Washington Post Company.  All in all, Bollinger brings both idealism and pragmatism to his project.   As the book’s title suggests, his hope is to infuse the spirit of the former into the realities of the latter.  Professor Bollinger thus invites his readers and the courts to reconsider and recast some of their notions of First Amendment law.

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Book Review: Speaking Up


Book Review

“Hey! Teachers! Leave Them Kids Alone”

Speaking Up: The Unintended Costs of Free Speech in Public Schools by Anne Proffitt Dupre.  Cambridge: Harvard Univ. Press. 2009.  Pp. 289.  $29.95.

Reviewed by Brannon P. Denning*

U.S. public schools regularly find themselves sued by students alleging violations of their First Amendment rights.  The scope of public school students’ free speech rights is notoriously unclear, and the proliferation of technologies that both make communication possible as well as blur the on-campus/off-campus line, moreover, make these cases increasingly difficult.  Courts and administrators often struggle to balance students’ speech rights with the need to maintain order and safety in public schools.

 University of Georgia law professor Anne Proffitt Dupre’s new book, Speaking Up: The Unintended Costs of Free Speech in Public Schools, tells the story of how the Court got us to this point.  The chapters of Dupre’s book take the reader on a guided tour of the Court’s student speech jurisprudence.  There is a chapter on each case in the Court’s original school speech trilogy: Tinker v. Des Moines School District (pp. 11-38), Bethel School District v. Fraser (pp. 39-73), and Hazelwood School District v. Kuhlmeier (pp. 74-106).  The latest case, Morse v. Frederick also gets a chapter at the end (pp. 230-258).  In addition, there are chapters on Pico v. Island Trees Union Free School District, which concerned the removal of books from school libraries (pp. 107-137), a long chapter on religious speech in schools (pp. 138-203), and one on teacher speech rights (pp. 204-229).  Read More