Too early for a Requiem: Warren and Brandeis were right about Privacy vs. Free Speech
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"One hundred years ago Warren and Brandeis published their classic article, which advocated that the common law could and should grant a remedy for violations of privacy.1 They identified two paradigmatic types of invasions of privacy: The exposure of the privacies of life through the then swiftly growing mass media, and the use of individuals' names and pictures in promotional activities."
I. Introduction
II. The Warren and Brandeis Analysis
III. The Impact of the Warren and Brandeis Analysis
IV. Towards a Better Analysis of the Privacy and Free Speech Conflict
A. Losing Sight of the Importance of Privacy
B. Inapplicability of Some General Free Speech Concerns
C. First- and Second-Order Arguments
D. Morality and Legality
E. The Benefits of the Warren and Brandeis Analysis
V. Epilogue
I. Introduction
One hundred years ago Warren and Brandeis published their classic article, which advocated that the common law could and should grant a remedy for violations of privacy.1 They identified two paradigmatic types of invasions of privacy: The exposure of the privacies of life through the then swiftly growing mass media, and the use of individuals' names and pictures in promotional activities.
The article is frequently described in two partly inconsistent ways. On the one hand, the article is supposed to be the most influential law review article ever written, an essay that single-handedly created a tort and an awareness of the need for legal remedies for invasions of privacy. It is a classic, a pearl of common-law reasoning, and proof of the ability of the law to meet new and challenging conceptions of value. On the other hand, especially since the development of the constitutional aspects of speech tort law, many question the validity and the desirability of the tort, particularly when it clashes directly with the freedom to publish. In the last decade doubts have led some state courts to explicitly reject any right of individuals to obtain a legal remedy for publication of true private facts about them against their will. The Supreme Court has decided four such privacy cases, denying a remedy in all of them. Commentators have suggested that the law in fact has not responded favorably to
I shall argue that Warren and Brandeis's analysis of privacy and its conflict with free speech is still more valid, clear, and adequate than many of the decisions and literature that have come in its wake. The article has stood the test of time better than many other contributions to the question of privacy and its legal protection. Furthermore, I shall argue that the strength of their analysis is on two levels. First, their recommendation for the proper solution to the conflict between privacy and free speech is wiser and more sensitive to the values of individuals and societies than the almost absolute priority of speech advocated by many courts and scholars. Moreover, their solution is still the one advocated by many scholars whose commitment to free speech cannot be doubted. Second, they reached these better conclusions because their approach to the conflict was clearer and sounder than other approaches.
In Part II, I shall sketch Warren and Brandeis's analysis. In Part III, I shall describe the ways in which the current law of privacy reflects either acceptance of or departure from their analysis. This description will provide the background for my critical Part IV. I shall suggest a general approach in Part IV to the privacy and free speech conflict that is different and sounder than the one adopted by many courts and commentators. I also will show how Warren and Brandeis were closer to this approach than many of the decisions and much of the literature that reflect the present state of the law. Warren and Brandeis's analysis still provides us with a good starting point for this important discussion because one hundred years later their analysis is alive and well. By rearguing with Warren and Brandeis within their framework, we might be led to modify some of their emphases, but many more might agree that they had the better argument than their critics.
II. The Warren and Brandeis Analysis
The Warren and Brandeis article is an advocate's brief for a judge-made tort of invasion of privacy. As in many such briefs, it identifies when the advocates expect to meet resistance and what they may see as evident and unproblematic. The article focuses on the resistance and treats the latter summarily and sketchily.
Warren and Brandeis obviously took some of the premises essential to their argument to be self-evident: that press behavior and new technologies of acquisition and dissemination of information present a new threat to privacy, that privacy is very important to the lives of individuals and to the well-being of society, that invasions of privacy could occasionally cause harm and injury as great as those caused by physical or financial loss, that in some cases invasions of privacy by publication serve no legitimate public interest, and that the law should be enlisted to deter this kind of behavior in the same way that it is used to prevent other types of harms.
Many commentators may find these premises questionable. For some the magnitude or the seriousness of the loss of privacy is not sufficiently established. Others believe that a legitimate public interest always exists in what is published. A third group doubts whether the law should limit publication of true information about individuals. If the premises are true, however, they create a plausible skeleton of an argument for making invasions of privacy, including unjustified invasions of privacy by publication, actionable in general.
Unfortunately, Warren and Brandeis did not provide us with an elaborate defense of these premises. Rather than argue for them, they merely stated them. They assumed that their audience agreed with these premises and directed their rhetorical effort elsewhere. They devoted more than two-thirds of the article to the arguments that a basic common-law principle is that the individual should have "full protection in person and in property,"3 that the harms to individuals generated by threats to privacy are inconsistent with this "full protection," and that a legal remedy for invasions of privacy, although superficially similar to protection of reputation, is in fact the principle already recognized in the law concerning the right of people to prevent publication in other contexts. Warren and Brandeis simply argued to extend the right into a more general right to an inviolate personality.
This part of the argument was required mainly because Warren and Brandeis addressed their plea to the courts. They therefore had to show a basis in existing common-law principles that would permit, and maybe even require, judicial development of the law to protect privacy.4 To assess their argument today, however, it is more important to focus both on what they said to show that the law should protect privacy and on the way in which they approached the conflict between privacy and free speech. Because Warren and Brandeis concentrated their energies on a different purpose, their arguments on these subjects were rather sketchy. What they said, however, creates the skeleton of a plausible argument that can and should be filled in.
I confess that some of my admiration for the piece rests on the intuitions that I share with them. Like Warren and Brandeis, I find their premises self-evident and compelling. Unlike them, I have had the benefit of exposure to many others who do not share these intuitions. I was led to accept that it is not enough to state the premises. One must elaborate on and argue for these premises in some detail. In the last analysis, however, much still depends on intuition, and
Several famous privacy decisions illustrate that losses of privacy can result in catastrophic consequences to the individuals involved.9 The social effects of not respecting privacy are harder to identify and are less likely to arise in individual litigation. This does not mean, however, that these effects do not occur or that they are not important and profound.10
Despite the sketchiness of their account, Warren and Brandeis correctly identified the types of harms that invasions of privacy may cause. Subsequent literature that elaborates on the interest in privacy has expanded and documented the importance of privacy and the harmfulness of its denial. Furthermore, Warren and Brandeis emphasized that the wish not to be the subject of discussion in public is not an isolated, unintelligible wish; it is connected to human dignity, to inviolate personality, and to the well-being of individuals and societies. Thus, although the paradigmatic case discussed by Warren and Brandeis is freedom from unwanted publicity, it is seen as just one aspect of a more general concern for human dignity.11
Because of their belief in the importance of privacy, Warren and Brandeis reached another conclusion, which was a premise in their argument for legal protection and one with which I agree: Some invasions of privacy are undesirable even if one takes legitimate public interests in publication into account. Warren and Brandeis did not speak at great length or in great detail about the conflict between privacy and free speech. However, they were keenly aware of it. "Legitimate public interest" is the first defense that they considered and granted. They described the purpose of the law in these terms:
The design of the law must be to protect those persons with whose affairs the community has no legitimate concern, from being dragged into an undesirable and undesired publicity and to protect all persons, whatsoever their position or station, from having matters which they may properly prefer to keep private, made public against their will.12
They conceded that the judgment of what is of legitimate public interest is predicated not only on the nature of the information, but on the identity and the role of the individual concerned. They further conceded that it is desirable to repress only "the more flagrant breaches."13 Their tentative definition of unjustified invasions of privacy was:
“matters ... which concern the private life, habits, acts, and relations of an individual, and have no legitimate connection with his fitness for a public office which he seeks or for which he is suggested, or for any public or quasi public position which he seeks or for which he is suggested, and have no legitimate relation to or bearing upon any act done by him in a public or quasi public capacity.14”
For reasons explained in Part IV, this general resolution of the conflict, under which many, but not all, privacy-invading statements will be justified, is preferable to the position that Warren and Brandeis's critics advocate. Their critics believe that all truthful publications about individuals are protected under the First Amendment no matter how intimate the information or how irrelevant to any justified purpose of free speech. Warren and Brandeis's formula is vague open-ended. It allows for many and constantly changing conceptions of what statements should be justified because of legitimate public interest. The critics' formula has the benefit of clarity and no inhibition of speech. However, it trivializes the offensiveness and the humiliation involved in some violations of privacy by publication. This may lead both to individual tragedies and to an undesirable social climate, just as
A final point worth repeating is Warren and Brandeis's insistence that the truth and the absence of malice should not be defenses in an action for invasion of privacy.18 To them this was a defining feature of the protected interest; it is not an interest that portrayals be accurate, but rather an interest that some aspects of life should not be portrayed at all. Warren and Brandeis did not offer the new remedy in order to expand remedies for injuries to reputation in which truth was generally accepted as a defense. They saw the interest in privacy as distinct, unique, and irreducible to those in reputation or mental tranquility.
To summarize Part II: Although the premises that support Warren and Brandeis's classic argument need more support and might need some qualifications, in their essence they are valid and illuminating. They provide a foundation for an argument for some cause of action for blatant invasions of privacy by publication.
III. The Impact of the Warren and Brandeis Analysis
In principle, whether Warren and Brandeis's article was influential and whether this influence was understandable in terms of legal craft are distinct from the questions of the validity and strength of their position on the conflict between privacy and free speech. They could have been right, but not influential, or wrong and nonetheless influential, or neither. One of the complexities of this piece of legal history, however, is that the substantive criticism of their position on the conflict always has been combined with a demystification of the magnitude of their contribution. As a result, many of their most powerful critics17 have argued with different emphases for three theses: (1) Their rhetorical influence was immense; (2) this influence, when analyzed more closely, was in fact very small; and (3) this influence was what it should have been because their message was ultimately undesirable.
I take issue primarily with the third thesis. The second thesis of the critics, however, also has limits. I think Warren and Brandeis would have liked to have seen a bit more protection of privacy in the bottom line of decisions, as well as a different approach to privacy. Nonetheless, the critical assessments claiming that the law did not respond to their concerns distort the law of privacy in ways that unfortunately affect not only the image of Warren and Brandeis's contribution but also the progress of the law of privacy.
History has not judged the article to be misguided and wrong. The power of Warren and Brandeis's analysis is persistent and enduring. Much of the greatness of the American tradition is reflected in the grand contours of their approach. This includes the often elusive realizations that freedom is a complex social value and that privacy and human dignity are freedom's essential components.
It is notoriously difficult to document and analyze the possible influences that the ideas of Warren and Brandeis have had on other ideas, including Brandeis's own attitude towards the conflict between privacy and speech, both of which he championed, and the developments of the law of privacy. It is impossible to do justice to the voluminous literature on the Warren and Brandeis article in the confines of this paper. I shall, however, sketch the grounds often given for claiming the great influence of the article. These are the data with which the critics need to deal. The critical approach is represented by many scholars and has been made on many levels of analysis. Three different statements, in combination, capture the essence of the critique. I will structure my own analysis of the law and its desirability around these three theses.
The Warren and Brandeis article was published in 1890. After an initially slow progress,18 recognition of the right to privacy gained momentum. By 1960, when Prosser published his influential analysis,19 all but four states recognized the tort, the Restatement (First) of Torts included it, and the tort, discussed and analyzed in hundreds of judicial decisions, was seen as an integral part of tort law.zo Then, in 1965 the Griswold v. Connecticut21 decision launched, and its progeny has since integrated, the constitutional right to privacy. This right now encompasses such diverse items as wiretapping and Fourth Amendment decisions22; personal decisions in the area of family life, contraception, abortion and marriage23; and watching pornography in one's home.24
If one looks under "protection of privacy" in contemporary American jurisprudence, one will find a large variety of legal measures—civil, criminal, and constitutional—all designed to promote and protect privacy. It is therefore easy to conclude that the law gave
Against this background we need to look at the critique of their effort. As mentioned above, this critique consists of three different themes.
First, when we look at situations in which the courts granted a remedy in tort for invasion of privacy, often relying on the Warren and Brandeis article, we find that the courts gave remedies in four different types of situations involving four different interests: Intrusion, appropriation, false light, and public disclosure of private facts. Warren and Brandeis were concerned with only the latter. Their article therefore generated a body of law that obscured important distinctions, and only one part of this body of law responded to the problem they identified. In fact, we do not have a tort of invasion of privacy, but instead have four distinct and different torts, three of which have nothing to do with privacy.25
Second, the defense of newsworthiness or public interest meant that plaintiffs rarely won for pure disclosure of true private facts. Usually, plaintiffs won cases that involved other elements such as intrusion, illegal acquisition of information, commercial exploitation, or falsehood. Furthermore, this cause of action is likely to be unconstitutional because it is not clear that truthful publications can ever be actionable under the First Amendment. Therefore, the only tort that responds to
Third, the constitutional right to privacy is indeed an exceptionally important part of the law. There is, however, no connection whatsoever between this constitutional right, its underlying rationale, and the tort of public disclosure of private facts that was advocated by Warren and Brandeis.27 The use of the same label has created confusion rather than illumination. Warren and Brandeis's right to privacy was in fact denied constitutional status in decisions such as Time, Inc. v. Hill,2* in which the Court applied the actual malice test required in New York Times Co. v. Sullivan29 to false light privacy cases.
The conclusion is that, at best, the impact of the analysis is the creation of a tort in which plaintiffs rarely win and that might be unconstitutional. All the other parts of the so-called privacy law may be traced in part to the successful rhetoric of Warren and Brandeis, but they do not reflect a positive response to their concerns. Many feel that their analysis confused issues and obscured the fact that so-called privacy claims involved different issues.
These critical descriptive theses all have grains of truth in them. However, they also are extremely misleading. Unfortunately, they have now become very influential and reinforce the acceptance of their adequacy as descriptions and in turn affect the development of the law.30
The following is a condensed version of an alternative description of the American law of privacy.31
First, many of the remedies given for invasions of privacy under intrusion, appropriation, and false light claims in fact reflect a wish to protect privacy and do respond to
Many of the first cases in which courts granted remedies for invasion of privacy involved the use of names or pictures in commercial advertisements. It was easy to classify them as cases of appropriation. It is even true that in some of these cases, although this happened only later, the plaintiffs really were not concerned with their privacy. The issue was not the wish to avoid publicity, but the wish to be paid for the use of their names or pictures. In most of these cases, however, a primary motivation was an interest in privacy.32
This is even clearer in intrusion cases. Intrusion may be, and often is, an obvious invasion of privacy.33 Furthermore, in many of the privacy cases the crux of the complaint was not the injury to an interest in property as Prosser suggests. Instead, property was used as a way to protect privacy. Warren and Brandeis clearly thought that intrusions into the privacy of the home, either in order to acquire information for publication or for other reasons, were invasions of privacy. Moreover, Prosser's analysis of the intrusion cases is very telling. He started by saying that intrusion is very different from appropriation.34 He then proceeded to say that acquisition of information or its publication in public places is no intrusion, but added the following qualification: "And even in a public place, there can be some things which are still private, so that a woman who is photographed with her dress unexpectedly blown up in a 'fun house' has a right of action."36
Finally, the false light cases are wrongly classified as truly cases of defamation that protect the accuracy of one's portrayal and reputation. This classification obscures the important difference between the two interests that Warren and Brandeis identified. In fact, the two false light cases that reached the Supreme Court are good illustrations of this point.3' In both cases the real gravamen of the complaint was not the inaccuracy of the portrayal, but the fact that it was made. The plaintiffs had to stress the falsehood because they were told that they could not recover unless the publication was false. But this was a. legal constraint that did not reflect the essence of the case. The remedies, when given, affirmed the interests of people not to be depicted in the press without a legitimate public interest.37 In fact, treating cases in which the essence of the violation is a privacy invasion according to the rules of defamation is inadequate.38
Warren and Brandeis's analysis therefore is responsible for initiating most of the tort remedies for invasion of privacy, and their argument might have been helpful in developing the law of intentional infliction of emotional harm as well. In most cases these remedies do respond to their concerns. The reductionist analysis therefore is misleading both as a description of the law and as a framework for its development. The main distortion of the reductionist analysis to the initial
Second, it is not true that once one clarifies the picture, legal remedies for the publication of true information about individuals are almost nonexistent and probably unconstitutional. It is true that in many dramatic privacy cases courts have denied recovery to plaintiffs, for whom the courts had some sympathy, because of the publication's newsworthiness or public interest.41 It is true that since 1975 the Supreme Court has refused on four occasions to grant relief for embarrassing disclosure of true facts42 and that at least one justice expressed the opinion that truth should always be a defense for the press under the First Amendment.43 It also is true that the lines demarcated by the Supreme Court in these cases would have made recovery unlikely for plaintiffs in some of the situations in which they did recover under tort law.44 Finally, at least two states explicitly rejected the private facts tort.48
But this is only a part of the picture. There are strong dissents in a number of Supreme Court privacy cases, and the decisions that denied recovery were often met with critical commentary.48 Some plaintiffs have won for public disclosure of true facts, including some recent cases, despite explicit and powerful arguments on behalf of the press and the importance of freedom of expression.47 The sentiments that privacy is an important value that should be balanced against free speech and that the category of cases in which privacy might override free speech is not empty are echoed by many and are reflected by the Restatement (Second) of Torts.48 The Supreme Court has been extremely cautious and has not held that any recovery for truthful publication is inconsistent with the First Amendment. In addition, concerns with privacy are prevalent in editorial policies and decisions. The number of cases in which plaintiffs have won is not the only, and probably not the most important, index of success. More important is the scope of situations in which editors refrain from publishing for reasons of privacy, either because they have internalized the importance of the value or because they are afraid of legal, public, or professional criticism.49
The legal and social response to the narrowest of their concerns, the one that the public disclosure tort addresses, is not that of a clear rejection. It seems that Warren and Brandeis would have wanted some of the plaintiffs who have lost over the years to win, but arguably there is not that much of a difference between their profile of the tort and the Restatement's.50 For some critics this may be just restating the problem; they probably think that the Restatement, and the law it reflects, should be modified. But for other critics, including Prosser and many staunch supporters of the First Amendment and its values, all that is needed is to carefully draw the lines that are required by close attention to the importance of freedom of speech and freedom of the press.61
Third, the tort-law right to privacy and the constitutional right to privacy share important concerns. The use of the same term, although it may obscure some important differences between cases, does identify similarities that are no less important. It generally is true that judges and commentators see the constitutional right to privacy as different and distinct from the tort that Warren and Brandeis advocated.52
The picture blurs, however, on closer examination. Blood tests, self-incrimination, searches, and wiretapping, which are all instances concerning constitutional privacy, clearly raise issues similar to the fear of intrusion and compelled disclosure of the privacy tort.83 Brandeis's dissent in Olmstead u. United States64 was very similar to parts of the 1890 article.85 The liberty-privacy cases started by building on emanations of the Fourth and Fifth Amendments, but soon established their own direction and rhetoric.68 Despite these connections, the development of the constitutional right of privacy has not affected the privacy tort much. As we saw, the Court has not given privacy, in the sense of freedom from unwanted publicity, a constitutional basis. Such a basis might have given privacy a better chance when it conflicted with the newly constitutionalized public interest defense to publication torts. It also would contribute to the sense that the two interests are, in an important way, aspects of one and the same concern.57
This may be another achievement of Prosser's reductive analysis of the tort, which disregarded Warren and Brandeis's and the courts' sense that privacy was a coherent interest that has to do with human dignity. This disassociation between the tort and the constitutional right stemmed mainly from the fact that, as many commentators noticed, the Court seemed to invoke the constitutional right to privacy in order to address issues of liberty, such as issues of freedom from interference, as opposed to issues of freedom from intrusion, attention, scrutiny, and publicity, which were the center of concerns with privacy.
I am among those who think that the distinction between these two interests is important and that a good way to maintain the distinction is by labeling the latter as privacy interests and the former as liberty interests. However, I am sorry if this has led to a failure to see that these two distinct values are closely interrelated. One of the main functions of privacy is its crucial contribution to liberty. A society without privacy, in the more limited sense, likely will not enjoy much freedom or have robust individuals who are willing to experiment, dare, and challenge their governments and the positive morality of their societies. The constitutional right to privacy is different from the interests that the privacy tort protects, but both are inspired by the same ideal of individuals and societies and by the fear of the same specter—that of a totalitarian and leveling organization of society.58 Therefore, at least on the level of importance and status, the conflict between privacy and free speech should be seen as a conflict between two ideals of the same level and not between the most sacred constitutional principle and a suspect, trivial, and petty tort.
In summary, although a general agreement exists that the number of successful plaintiffs under the disclosure of private facts category never has been substantial, there is considerable controversy concerning the implications of this agreement to the impact and the validity of the Warren and Brandeis analysis. Some commentators believe that the tort is merely a confusing myth. In direct opposition to the Warren and Brandeis analysis, these commentators also believe that we will be better off if we acknowledge that there should be no liability for truthful publications. Others believe that we shall lose something significant if we reach this conclusion and that freedom from unwanted publicity and robust public debate can be made consistent without giving up all privacy protection, thus vindicating the general approach of Warren and Brandeis even if not the particulars of their analysis. In the last part of this paper I wish to explain why I want to join this latter group.
IV. Towards a Better Analysis of the Privacy and
Free Speech Conflict
The desirable legal resolution of a conflict between two values is very complex. It involves a large number of questions, which belong to different discourses. First, we need to have a clear analysis of the two competing values involved, what they are, why they are desirable, and how they relate to each other. This may require some conceptual analysis and a lot of moral and human understanding of the ways in which ideals and goals work in our lives and affect other goals that we have as individuals and a society. When we proceed to discuss conflicts between rights, values, or interests, it is crucial that we not lose sight of what we have learned in the first stage by analyzing the different values. We should remember this because situations of conflict are painful. Therefore, we have a tendency, once we have resolved the conflict as we must, to undervalue what we have given up in order to be at peace with the decision that we have adopted.
The resolution of conflicts is undertaken in the context of some ethical and meta-ethical framework. What should be counted? What weight should be given to wishes, ideals, goals, and interests? How do we identify them? In a pluralistic society of the type in which we live, disagreement is likely on many parts of these frameworks. Such disagreements may impede our chances of gaining consensus on the moral resolution of conflicts between values. Nonetheless, agreement on at least some working assumptions, both substantive and methodological, may be possible. As a substantive starting point I suggest the principle that harming other individuals or society should be justified.59 I do not impose constraints on what can count as a justification at this point. Methodologically, I suggest two distinctions. One is between first-order and second-order arguments for the resolution of conflicts. The other is between the morality of an issue and its legal resolution.
My argument, in a nutshell, is that the resolution of conflicts is likely to be more adequate if we heed these guidelines for discussing conflicts. Identifying the conflicting interests and their justifications, identifying the kinds of harms caused by infringement of these values, and attending to the distinctions between first- and second-order justifications and between the morality of some behavior and its legal status all help in resolving these conflicts. Moreover, Warren and Brandeis's analysis is closer to this desirable model than many of the judicial opinions in the field and many of the analyses that criticize their seminal argument.
Many of the weaknesses of discussions on the free speech and privacy conflict consist of insufficient attention to certain points. The justified fear of curbing free speech results in inattention to both the acute harmfulness of some invasions of privacy and to the relative inapplicability of some general justifications of free speech to privacy.60
Moreover, it leads to an overemphasis on the conflict between the two values without attention to the interrelationships between them—the ways in which they belong together and reinforce each other.
The same fear of legal remedies that might chill worthy expression and considerations that concern difficulties of enforcement and fear of abuse81 justify a second-order argument for some protection of unworthy speech in some areas. They also may justify the refusal to make speech actionable even if it is seen as morally objectionable. There is an enormous difference, however, between this kind of an argument for the legality of all privacy-invading speech and an argument that such speech is morally desirable or at least permissible. The difference occurs on a number of levels. The rhetoric and the attitude of the law towards the victim of an unjustified invasion of privacy who will lose in court should be sympathetic because the victim is required to pay a heavy price for the good of us all.62 The extralegal difference is even more important. If losses of privacy are insignificant and morally permissible, there is no need for any educational or attitudinal effort to minimize such losses. If, on the other hand, such losses are not made actionable because of second-order considerations or because of the limits of the law, we should all try to attain the proper balance between privacy and free speech by minimizing unjustified invasions of privacy. The two current journalistic debates about outing and the publication of the names of rape victims make this point most dramatically. Most accept that there is no legal remedy for most cases of such publications, and many accept that this is as it should be. There is, however, a vibrant debate within the press and within the community about the morality of such publications.63
A full defense of my position would require a detailed account of an answer to a number of questions including: Under what circumstances are invasions of privacy prima facie unjustifiable? When justifications exist, mainly the suggestive but elusive legitimate public interests that might override privacy at the first-order level, what, if any, are the second-order justifications for allowing free speech even when it does or is likely to unjustifiably invade privacy? Do the limits of law and fear of abuse require even more protection of the press than suggested by these second-order arguments? These are fascinating questions, on many levels.64 They are complex, and many of them are extremely controversial. Sincere supporters of free speech can and do take different positions on these issues.66 I have addressed these questions in some detail.66 Because I cannot do justice to the subject here, I have decided to limit my argument to the claim that something has gone importantly wrong with the way we think about the privacy and free speech conflict. Let me elaborate on these points.
A. Losing Sight of the Importance of Privacy
Americans are justly proud of their free speech jurisprudence, which reflects a deep commitment to the importance of this value. Yet this pride is quite consistent with the observation that free speech analysis is not always what we would hope for. Nonetheless, there is broad agreement that freedom of expression is crucial to democracy, to a free society, and to the constitutional design of the
I would not want this to be any different. Freedom of speech is very important. We must stress the need to protect freedom of speech against all kinds of attempts at repression and censorship. Nonetheless, we need to remind decision makers that losses of privacy are intensely harmful, that they are harmful in a variety of ways that affect both individuals and the societies in which they live, and that freedom of expression is so important because of its relationship to the kind of individuals that we want to have and the kind of society in which we want to live. In order to have that very society, we need more than freedom of speech. We need other forms of freedoms, virtues, and aspirations. Privacy is not merely another important value that occasionally conflicts with free expression. Privacy is essential, in different ways, to the very same goals that we seek to pursue through freedom of expression.87
While the legal literature has discussed the importance of privacy,*8 the main support for privacy's importance comes from philosophical and psychological literature.68 There is an agreement that privacy is intimately connected to freedom and autonomy in a variety of ways. In many situations our freedom is not protected by the absence of regulation and its chilling social effect, but by the fact that we enjoy privacy, either in the sense of being alone or intimate with others, to behave in ways that would be unlikely in public. When this behavior is desirable or permissible, privacy acts to enlarge our freedom in an un-problematic way. This may include many types of conduct that require intimacy or spontaneity and provide valuable learning experiences. If we have to think that everything we do is observed and may be publicized, we shall have poorer lives.70 We also shall have less of a tendency to do the things that we are not sure about, fewer chances to experiment and acquire competence through trial and error, and fewer opportunities to experiment with behaving differently. The losses of these expansions of freedom may be great for both individuals and societies. I doubt that we could have many great pianists if individuals could practice only under the scrutiny of their not-always-sympathetic peers.
Privacy also is helpful for other types of unlikely behavior that are desirable, indeed essential, to our ideal society. An obvious example is the secrecy of the ballot. Ideally, people should have courage in their convictions and be able to vote publicly in the same manner in which they vote privately. But often this will not occur. We prefer the secrecy of the ballot, with its opportunities for abuse and hypocrisy, to simple public accountability.
Democracy, one of the strongest justifications for free speech, is related to privacy in additional ways and is justified by a variety of arguments. Primary among them is the recognition of the importance of human dignity and the wish to encourage autonomous and self-directing individuals who will actively participate in decisions affecting the life of their communities. These are the individuals for whose benefit we want to have a free press so that they will share in the commitment to participate in public affairs on the basis of intelligent and informed decisions. But autonomy, a sense of self-worth, and a willingness to respect oneself and others include respect for the distinctness of individuals and for their wishes concerning their own lives. People are unlikely to develop a tendency to exercise autonomous judgments in an environment that does not allow for privacy. Furthermore, democracy scholars are quick to note that freedom of speech must be complemented by freedom of association and that associations should be protected against coerced disclosure of their membership and of their private meetings. The privacy of associations is seen as the road to participation in public life. Denial of that privacy will be a threat to public life, not an enhancement of its accountability.71
It therefore is striking to see many judges and commentators that are critical of privacy so willing to discount these