1972] First Amendment: The Computer Age 47 proposed. When the political managers ignore or abdicate their responsibility to assure the application of due process of law, they may have the final say over the constitutional uses of power. What they say may not be popular with those who use their services, especially government departments. But I would suggest that when they advise on extending the power of government, they serve a higher law-the Constitution. The technological forces which affect the quality of our freedoms come in many guises and under strange terminology. They are dreamers who would decry the advent of the computer as casting some sorcerer's shadow across an idyllic land. In their philosophical rejection or fear of this most intricate of machines, they would deny the spark of divinity which is the genius of man's mind; they would reject the progress of civilization itself. So there is no reason to condemn out of hand every governmental application of computers to the field of information processing or to systems study. Our society has much to gain from computer technology. To assure against its political misuse, however, we need new laws restricting the power of government and implementing constitutional guarantees. We need increased political awareness of an independent nature by information specialists who understand the machines and the systems they constitute. We do not, as some suggest, need new constitutional amendments to deal with these problems. The words of the original amendments will do, because they envelop our national concepts of personal freedom and I believe they can encompass anything which jeopardizes that freedom. As Justice Oliver Wendell Holmes said: A word is not a crystal, transparent and unchanged; it is I believe that Americans will have to work harder than ever before in our history so that the First Amendment remains a living thought in this computer age. Otherwise, we may find the individual in our society represented not by a binary form, but by one digit. And that will be "zero." Otherwise, America may lose its cherished reputation as "the land of the Second Chance." 67. Towne v. Eisner, 245 U.S. 418, 425 (1918). [From the Yale Law Journal, Vol. 82, No. 7 (June 1973)] Privacy in the First Amendment In the exercise of its traditional freedom, the press often discloses information about individuals which those individuals would rather conceal. When the information, though true, is particularly embarrassing or intimate, the person has sometimes felt sufficiently injured to sue the offending publisher-even though the publisher committed no physical intrusion, fraud or larceny to get the story. The claimed legal injury in such cases therefore consists only in having private information become public without the consent of the person whom the information concerns. When, in 1960, the late William Prosser sifted some 300 cases having to do with privacy,1 he found that enough of these suits had been successful to constitute a common law cause of action.2 Prosser named the action "the public disclosure tort" and listed it as one of four American common law torts which protect personal privacy.3 Even as Prosser identified the public disclosure tort action, he recognized that its existence might well interfere with the First Amendment right of the press to report on matters of legitimate public interest.* In the intervening decade the definition of what is "of legitimate public interest" has rapidly expanded under a series of Supreme Court decisions, to the point where it is difficult to say confidently that any item of information which the press decides to publish is outside the Prosser did not attempt an exact definition of the public disclosure tort in his analysis. He described the tort generally as requiring that "something secret, secluded or private pertaining to the plaintiff" be invaded and that the something be publicized, but not requiring that the publication be false, or be for the commercial advantage of the defendant. Id. at 407. However, the examples he offered are mostly cases which do not fit neatly into the public disclosure category; the exception is Melvin v. Reid, 112 Cal. App. 285, 297 P. 91 (1931). See Prosser, supra note 1, at 392-98. Except for California, therefore, one finds it hard to say which states explicitly recognize the public disclosure tort. Most courts which uphold a "right to privacy" refuse to specify their rationale. Prosser himself ventures to identify only those states which recognize a privacy tort action in general, without breaking the recognized action down into his separate categories. Id. at 386-88. See also W. PROSSER, THE LAW OF TORTS § 117, at 804 (4th ed. 1971). The four categories, each depending on a different rationale and each punishing different acts, are: 1. Intrusion upon the plaintiff's seclusion or solitude, or into his private affairs. Public disclosure of embarrassing private facts about the plaintiff. 2. 3. Publicity which places the plaintiff in a false light in the public eye. 4. Appropriation, for the defendant's advantage, of the plaintiff's name or likeness. Prosser, supra note 1, at 389. 4. Id. at 410. 5. See, eg, Rosenbloom v. Metromedia, 403 U.S. 29 (1971); Curtis Publishing Co. v. Butts, 388 U.S. 130 (1967); Time, Inc. v. Hill. 385 U.S. 374 (1967); New York Times Co. v. Sullivan. 376 US 254 (1964) See also pp. 1463-65 infra. Privacy in the First Amendment protection of the First Amendment. In all suits for public disclosure of private information, publishers may well enjoy a complete defense of privilege under the First Amendment. If this is true, then there can be no constitutionally acceptable remedy for the injury caused by publishing private, true facts, and the public disclosure tort is unconstitu tional on its face-an inference some legal scholars have already drawn." However, the analytical premises of the Court do not lead necessarily to that conclusion. Using the same premises, a First Amendment interest can be shown in preserving the public disclosure tort remedy, based on a First Amendment interest in the particular form of privacy which the tort protects. I The starting point for constitutional arguments both for and against the public disclosure tort is a theory of the First Amendment which the Supreme Court has articulated over the last decade. Beginning with New York Times Co. v. Sullivan in 1964, the Court in applying the free speech guarantee has stressed the integral role of free speech in. a democratic political system, and has uncovered a First Amendment interest in protecting a “system of freedom of expression." In deciding the constitutionality of an individual utterance, therefore, the Court has taken into account not only the merits of the specific utterance but also its place in a constitutional system of speech. The Court's theory rests on the premise that free speech provides citizens with that "access to social, political, esthetic, moral and other ideas and experiences"1 which citizens require in order to perform "[s]elf-governance."11 6. See p. 1468 & notes 27-31 infra. 7. See Marc Franklin, A Constitutional Problem in Privacy Protection: Legal Inhibitions on Reporting of Fact, 16 STAN. L. REV. 107 (1964). Others who have recognized the potential unconstitutionality of a public disclosure tort include T. EMERSON, THE SYSTEM OF FREEDOM OF EXPRESSION 517 (1970); Kalven, Privacy in Tort Law-Were Warren and Brandeis Wrong?, 31 Law & CONTEMP. PROB. 326, 336 (1966). See also Kapellas v. Kofman, 1 Cal. 3d 20, 35, 459 P.2d 912, 922, 81 Cal. Rptr. 360, 370 (1969). 8. 376 U.S. 254 (1964). 9. The phrase is the title of Professor Thomas Emerson's study of the Supreme Court's treatment of the First Amendment, T. EMERSON, supra note 7. Emerson posits that "[t]he root purpose of the First Amendment is to assure an effective system of freedom of expression in a democratic society." Id. at 17. The Court itself has said that "[a] broadly defined freedom of the press assures the maintenance of our political system and an open society," Time, Inc. v. Hill, 385 U.S. 374, 389 (1967), and it has observed "a profound national commitment to the principle that debate on public issues should be uninhibited New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964). Justice Black has called First Amendment guarantees "the heart of the system on which our freedom depends." American Communications Ass'n v. Douds, 339 Ú.S. 382, 453 (1950) (dissenting opinion). 10. Red Lion Broadcasting Co. v. F.C.C., 395 U.S. 367, 390 (1969). 11. Rosenbloom v. Metromedia, 403 U.S. 29, 41 (1971). 37-583 74 pt. 24 The Yale Law Journal Vol. 82: 1462, 1973 As Mr. Justice Brennan has acknowledged, the Court has developed its self-governance rationale for protecting an integrated system of First Amendment freedoms in light of the work of the late Alexander Meiklejohn.12 In Meiklejohn's classic formulation, The First Amendment does not protect a "freedom to speak." It protects the freedom of those activities of thought and communica- . tion by which we "govern." It is concerned, not with a private right, but with a public power, a governmental responsibility.13 In other words, free speech is protected not for some intrinsic value of speech but because it is a necessary condition for the making of informed decisions about matters of government, decisions which all citizens in a democracy are called on to make. Speech provides information, the raw material from which citizens can make self-governing choices. Although the Court has never set out the elements of the free expression system, its operation would seem to require two separate stages. Transmission of information from speaker to listener is only the first; the second is the application of that information-in the mind of the person who receives it-to the individual decisions of self-governance.14 Both stages of the process are needed to achieve what, in the Court's view, the Constitution envisions: free individual choice by each citizen. Yet the Court, in applying its concept of a free expression system, has concerned itself almost solely with the first stage of that systemthe process of communicating information from speaker to listener. In 12. Brennan, The Supreme Court and the Meiklejohn Interpretation of the First Amendment, 79 HARV. L. REV. 1 (1965). Justice Black cites Meiklejohn in his concur rence in New York Times Co. v. Sullivan, 376 U.S. 254, 297 n.6 (1964). 13. Meiklejohn, The First Amendment Is An Absolute, 1961 SUP. CT. REV. 245, 255. Professor Emerson believes that a free expression system also serves the goals of individual self-fulfillment and the discovery of truth, independent of their relationship to governing process. T. EMERSON, supra note 7, at 6-7. 14. Although the Court has not hitherto viewed its system as involving two operative stages, Justice Douglas appeared to recognize an analogous division of First Amendment operation in his dissent in United States v. Caldwell, one of the three cases consolidated in Branzburg v. Hayes, 408 U.S. 665 (1972). After quoting from Meiklejohn, he argued: Two principles which follow from this understanding of the First Amendment are at stake here. One is that the people, the ultimate governors, must have absolute freedom of, and therefore privacy of, their individual opinions and beliefs regardless of how suspect or strange they may appear to others. Ancillary to that principle is the conclusion that an individual must also have absolute privacy over whatever information he may generate in the course of testing his opinions and beliefs . . The second principle is that effective self-government cannot succeed unless the people are immersed in a steady, robust, unimpeded, and uncensored flow of opinion and reporting which are continuously subjected to critique, rebuttal, and reexamination. Id. at 714-15. Douglas' first principle is analogous to the second stage proposed here, and his second principle is analogous to the first stage. Privacy in the First Amendment the context of that first stage, the Court has recognized that participation of individuals in a free expression system can be inhibited, or chilled, in a variety of ways and that the result is to diminish the selfgoverning rights of at least those individuals.15 It has therefore acted in the name of the First Amendment to forestall those potential inhibitory effects. But at the same time the Court has taken for granted the freedom from potential inhibition of the second stage-the listener's decision-making in light of received information-which begins after the communication between speaker and listener is complete. The Court's assumption seems to be that speech need only reach the listener's ear for the free expression system of democracy to operate successfully.16 Lamont v. Postmaster General17 illustrates the distinction between inhibitions of the first stage and inhibitions of the second, and the Court's unwillingness to perceive the latter. In Lamont, the Court struck down a Post Office requirement that addressees of "Communist propaganda" had to request the "propaganda" in writing before it would be delivered. The Court's opinion focused on the hindrance to free speech which the written request represented: the hindrance to the successful act of communication between the person who mailed the "propaganda" and the intended recipient.18 No mention was made of the effect on the addressees of knowing that the Post Office had identified them as recipients of subversive mail.19 Knowing that they had been so identified, they might be inhibited from making a later self-governing choice, such as the choice to vote for a Communist political candidate. Under the Lamont facts, that chilling effect (an inhibition of the free expression system's second stage) seems a more likely and more worrisome possibility than the possibility that a written request requirement might impede the flow of speech (a first-stage inhibition). Yet the decision turns on the first-stage inhibition alone. 15. See, e.g., Lamont v. Postmaster General, 381 U.S. 301, 307 (1965). See also note 26 infra. 16. The Court has often used the phrase "the right to receive information and ideas," see, e.g., Kleindienst v. Mandel, 408 U.S. 753, 762-64 (1972); Stanley v. Georgia, 394 U.S. 557, 563 (1969). But it has invoked the right only to protect the act of communication between speaker and listener; the phrase has never been used to indicate any hearer's right to First Amendment protection in his subsequent decision-making. The "right to receive" appears to apply only to the same circumstances as the right to speak; the Court seems to use it as a substitute for the "right to speak" in cases where its sympathies do not lie with the speaker. In Mandel, for example, the speaker was a Belgian Marxist applying for permission to enter the United States; in Stanley the speakers were makers of pornographic films. 17. 381 U.S. 301 (1965). 18. Id. at 307. 19. At one point, the Post Office was keeping a central list of these recipients, although it claimed to have discontinued the practice before trial. 381 U.S. at 303. |