Category: First Amendment

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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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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

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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

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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

dupre-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

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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.

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The Perils of Courts’ Defining the News for Journalists

In researching and writing a new piece, I had the great fortune of re-reading a superb article written by Amy Gajda entitled Judging Journalism: The Turn Toward Privacy and Judicial Regulation of the Press,  97 Cal. L. Rev. 1039 (2009).  In it, Gajda explores courts’ growing willingness to recognize privacy claims against the media for unwanted publicity.  As Gajda explains, this has been accomplished in part due to courts’ increasing lack of deference to journalists’ news judgment and willingness to assert their own determinations of the legitimate scope of news coverage.  The Article addresses the nascent resurgence of the publication of private fact torts in the courts and the perils involved in shifting the power to define the news from working journalists and the consuming public to judges and juries.  It is a truly terrific read.

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Facebook: Taking Out the Free in Free Expression

As so many warn (and warn to no avail), self-expression on social network sites can be costly.  CBC News recently reported that an employer’s insurance company cut a Quebec employee’s long-term sick leave benefits after seeing photographs on the employee’s Facebook page.  The employee had been on leave from her job at IBM for a year and a half after being diag1211887_on_the_beach_2nosed with major depression.  The employee posted pictures of herself having a good time at a bar on her birthday and enjoying the beach while on vacation.  The insurance company investigated the woman’s Facebook page after she told her insurer about her trip.  The employee explained that her doctor advised her to have fun to combat the depression.  But that apparently did little to convince the insurer that the employee still struggled with depression.  This case demonstrates the problem of de-contextualization in our digital lives.  A strong argument exists that the insurer took pictures out of context when terminating the woman’s benefits.  This is just the kind of privacy problem that Dan Solove so astutely tackles in Understanding Privacy and urges a contextual, pragmatic approach to address it.

Not only do insurers (and employers) hold our Facebook musings against us, but government employers can as well.  As Helen Norton‘s superb article Constraining Public Employee Speech: Government’s Control of its Workers’ Speech to Protect its Own Expression (59 Duke L.J. 1 (2009)) explores, government employees can be fired for off-duty online speech on the grounds that the public would associate the employee’s off-duty expression with the government entity that employed him.  For instance, the Ninth Circuit rejected a First Amendment challenge by a police officer who had been fired for maintaining a sexually explicit website featuring his wife even though the website never referred to law enforcement generally or the plaintiff’s employment specifically.  The court explained: “it can be seriously asked whether a police officer can ever disassociate himself from his powerful public position sufficiently to make his speech (and other activities) entirely unrelated to that position in the eyes of the public and his superiors. . .  . the sleazy activities [of plaintiff and his wife] could not help but undermine [the public’s] respect” for the police department.  Given the current state of First Amendment doctrine, it seems possible that government employers could fire employees for participating in Facebook groups with unpopular viewpoints on the grounds that such support would undermines the public’s respect for the particular government employer (the Facebook groups supporting Nazi ideology and Holocaust denial come to mind).  Norton elegantly addresses the value of government speech and that of its employees and, like Solove, prefers a contextual approach that honors First Amendment values and employees’ expressive autonomy.

Hat tip: Raymond Cha

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Scientology and the Media

450px-Founding_Church_of_Scientology_signMuch like everything else in our debt-ridden economy, the media has hit hard times.  Papers have folded, fired staff, or been sold.  This leaves news markets with fewer papers and less investigative reporting.  Amidst this glum report comes another trend worth discussing.  As the mainstream media centralizes its overall presence in a few organizations, some papers left standing have been acquired by organizations with strong religious affiliations.

Consider the Times Publishing Company’s sale of Governing magazine, which reports on state and local governments, to e.Republic, whose founder and top executives are Scientologists.  e.Republic’s founder Dennis McKenna has practiced Scientology for over 30 years and was identified as a church spokesman in 1979.  The Times Publishing Company still owns The St. Petersburg Times, which has long investigated and criticized the Church of Scientology.  In the last several months, The St. Petersburg Times has run a series of scathing articles on the Church of Scientology under the title “The Truth Rundown.”  (In 1980, that newspaper won a Pulitzer Prize for an investigation of the church’s inner workings).

Governing staffers worry that their new management’s religious practices may affect their jobs.  According to The New York Times, their anxiety stems from  2001 article in the Sacramento News and Review reporting that e.Republic’s staff members were required to read a book on management called “Speaking from Experience,” written by L. Ron Hubbard, the founder of Scientology.  e.Republic’s Chief Operating Officer has said, however, that in his 13 years at the company, he had never read Mr. Hubbard’s book.  Some of the staffers’ concerns might be alleviated by the fact that e.Republic has long published Government Technology (GT) magazine, one of my favorite sources for my work on government’s use of information technologies, with no sign that the owner’s religion has had an impact on the stories that GT publishes.  But no matter, this trend is worth watching as newspapers continue their downward spiral.

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