parent nodes: Amendment I | low-value speech
invasion of privacy
See Amendment I; low value speech
Invading the privacy of another is, generally, an intentional tort.
The rationale of [NYT v Sullivan], which prevented libel suits by public figures, easily extends to prohibiting suits by public figures against those who invade their privacy. As with libel, public figures have a much readier counterspeech remedy than others, and allowing invasion-of-privacy suits by public officials would be likely to chill legitimate speech.
The Court has never addressed whether or to what extent the invasion of privacy tort is compatible with Amendment I. The Court has only said that Amendment I prevents the punishment of revealing private information if that information is gathered from a public source. See [Cox v Cohn Broadcasting] (allowing publication of rape victim's name, where name was found in uncensored court documents). Such public disclosure by the government, the Court argued, implied that the state did not take the privacy of the information seriously enough to justify punishing others who published that speech. Lower courts have tended to uphold tort damages for invasions of privacy, particularly where the speech is not newsworthy or the defendant was reckless.
Note the problem, also similar to the problem of libel, of whether courts can be trusted to decide whether the disclosure of certain information is or is not newsworthy, and which individuals deserve or do not deserve protection from privacy-invading speech. Kalven argues that the concept of "newsworthiness" is elastic and ambiguous, and depends largely on the audience; defining speech by terms of its audience might lead to inconsistent or biased (that is, caused by jury bias) results.
On one hand, invading the privacy of private individuals serves no public purpose; but invading the privacy of public figures very well may, and the distinction between "public" and "private" figures is not obviously sound.
Compare also the strength of the government's interest: the government may want to prevent scenarios where people decide not to do something because it might be revealed. Generally, we presume that people should be able to do what they want in private. But see Posner's argument that not disclosing private information is effectively fraud; keeping secrets is deceiving others, and there is no reason for the law to reward such behavior.
Two key differences between false statements and invasion of privacy, however, is that the incentives and remedies are different. False statements can be countered by the truth, at least if the injured party has access to the media (hence the "public figure" test); but no real remedy can counter the revelation of private but true information. One could argue, as per [Cohn v Cox Broadcasting], that if a private figure doesn't want his private information revealed, he should try harder to prevent its disclosure; but private figures can bear only a limited responsibility for protecting themselves, as in the example of being taped while changing in a locker room. Note that the problem of the locker room is that the voyeur is obtaining the speech in a privacy-invading manner, whether or not he publishes it. In this sense, then, invasion of privacy repeats the problem of the Pentagon Papers case: it is hard to explain why the government could punish obtaining certain information but not its publication. The problem is especially acute when private information is obtained in order to reach public, possibly valuable, dissemination, again as in the Pentagon Papers case.
And revealing some information can discourage behavior that society very much wants to protect: reporting the names of rape victims, for example, will mean that rape victims will be less likely to report rapes in the future. Cf. [Cohn v Cox Broadcasting] (reporting name of rape victim allowed). Note also that, unlike libel, there may be a large difference between revealing the existence of private information and revealing the specifics thereof: revealing the existence of American spies in Iran, for example, is very different from revealing the names and locations of those spies.