Balkinization  

Saturday, August 27, 2005

The Washingtonienne Case and the Still-Very-Much-Alive Public Disclosure Tort

Daniel Solove

Earlier this summer, I blogged about the Washingtonienne case. Recently law professor Andrew McClurg wrote a piece for the Washington Post about the case. He writes:

Cutler's blog, written under the pseudonym Washingtonienne, was a daily diary of her sex life while working as a staffer for Sen. Mike DeWine (R-Ohio). It recounted, entertainingly and in considerable -- sometimes embarrassing -- detail, her ongoing relationships with six men, including [the] plaintiff. . . .
Although McClurg notes that the plaintiff “suffered a genuine wrong,” he also states that the law “appears to be against him” because he “does not allege that any of the statements about him are untrue.” McClurg notes that the plaintiff is suing under the public disclosure of private facts tort, which “provides a remedy when one publicizes private, embarrassing, non-newsworthy facts about a person in a manner that reasonable people would find highly offensive.” McClurg notes that “while Cutler's actions may meet this standard, courts have long been hostile to such lawsuits because of a fear of inhibiting free speech.” McClurg continues:

In 1989 the court tossed out a lawsuit against a newspaper for publishing a rape victim's name in violation of Florida law. While it stopped short of ruling that a state may never punish true speech, the test it adopted for when that can be done without violating the First Amendment is so stringent Justice Byron White lamented in dissent that the court had "obliterate[d]" the public disclosure tort.
Not so. Time after time the Supreme Court has explicitly carved out space for the public disclosure tort to exist. In the series of cases involving the First Amendment and privacy restrictions on true speech, the Court has always confined the First Amendment to speech about matters “of public significance.” The Court did this in Smith v. Daily Mail Pub. Co., 443 U.S. 97, 103 (1979) as well as its most recent case on the issue, Bartnicki v. Vopper, 532 U.S. 514 (2001), where the Court held that “privacy concerns give way when balanced against the interest in publishing matters of public importance.” Id. at 534.

Even in the 1989 case that McClurg refers to, Florida Star v. B.J.F., 491 U.S. 524 (1989), the Court explicitly rejected the “invitation to hold broadly that truthful publication may never be punished consistent with the First Amendment. Our cases have carefully eschewed reaching this ultimate question.” Id. at 532.

So it could very well be that the newsworthiness test of the public disclosure tort – that weeds out cases involving matters of legitimate public concern – can address the First Amendment interests. The Court has left the issue open. It has not obliterated the tort . . . far from it. While the Court may have waved its sword near the tort, it left the tort almost totally intact.

McClurg goes on to argue that although Cutler’s blog wasn’t newsworthy, “newsworthiness has proved to be a broad and elusive legal test in privacy lawsuits.” This is true, but then McClurg says: “The rape victim's name in the 1989 Florida case, for example, was deemed to be sufficiently related to the public's interest in crime to doom her claim.” This isn’t exactly correct. Florida Star did not involve the public disclosure tort. It involved a Florida law restricting the disclosure of rape victims’ names. Here’s what I wrote in an article about privacy protections and the First Amendment regarding Florida Star:

Many have read Florida Star as a broad indication that restrictions on the disclosure of true information are unconstitutional. Nevertheless, this case can be read very narrowly. The Court suggested that the Florida statute was far too broad. The statute applied “regardless of whether the identity of the victim is already known throughout the community; whether the victim has voluntarily called public attention to the offense; or whether the identity of the victim [had] otherwise become a reasonable subject of public concern.” The law focused only on the nature of the information, rather than on whether each particular use of a rape victim’s name in a specific context would be of public or private concern. Florida Star can be construed to suggest that a law adopting a less categorical approach—by addressing the use of the identifying data more contextually—might not be subject to strict scrutiny under the First Amendment.
In other words, the law involved in Florida Star was struck down in part because it lacked a newsworthiness exception! The statute was also problematic because it applied even if the rape victim’s identity was already known to the public. The rationale of the Florida Star Court was not, as McClurg says, that the rape victim’s name was “sufficiently related to the public’s interest in crime” but that the law didn’t contain the necessary limitations to withstand First Amendment scrutiny. The public disclosure tort has these limitations – it doesn’t apply to matters of legitimate public concern and it only applies to private matters.

The Florida Star Court also held that since it was the government that disseminated the rape victim’s name, it could not then punish the press’s disclosure of that information: “[W]here the government has made certain information publicly available, it is highly anomalous to sanction persons other than the source of its release.”

In the Washingtonienne case, the government didn’t disseminate the information; Jessica Cutler did. It’s hard to see how Florida Star is even applicable.

The public disclosure tort is alive and well. It has not been killed or obliterated by the Supreme Court. Reports of its demise are greatly exaggerated.

Comments:

how do you draw the line between legitimate public concern and privacy?

or rather, how will courts do so?
the answer-- through arbitrary value judgments.
 

ECS,

Most legal distinctions turn on value judgments. Indeed, much of First Amendment law depends upon making such judgments. If you eschewed anything involving a value judgment, I can't imagine how you could construct much of a legal system. You might say we should avoid "arbitrary" value judgments, but who says what is arbitrary and what isn't? The bottom line is that law must make value judgments. You might desire a system of rules that consists of pure mathematical formulas, but until such a legal code is invented, we're stuck with value judgments.
 

indeed, value judgments are ubiquitous in legal reasoning and are partly constitutive of judgment as such.

my point is rather that this distinction between public concern and mere private matters is "arbitrary" in the sense that it is guided by no rational principle or test. i don't expect the First Amend. to be applied mathematically, but it should not involve fictive categories like the public/private distinction which masquerade as objective when they are in fact merely reflections of the adjudicators valuations of the matter.

just as in the law of libel, the courts are in essence 'balancing' when they decide whether saomething is public or private, but rather than admit that they can pretend that the matter is objectively determined by the nature of the case (whether the content is public or private). this sounds better and more authoritative than saying 'we think this is not fit for print' but is no more legitimate.

my solution to this is to eliminate the public concern limitations and extend Florida Star to cover, well, anything not subject to a (constitutionally sound) confidentiality constraint. whether something is a matter of public concern is for the public to decide, not for the bureaucrats of the bench or, for that matter, a jury.

consistent with the general trend of eviscerating the great landmark decisions of the Warren Court (a practice it should be noted, begun by that court itself) the Sullivan decision has been limited. however, its principles, if taken seriously, wpuld essentially blow the torts of libel and invasion of privacy out of the water.
 

Over at Findlaw, Hilden wrote an essay about this case arguing that this is a matter of public concern. Namely, sexual politics in Washington and society overall is a matter of public concern, including such intimate details just as intimate details are sometimes of public concern in news stories.
 

If the public disclosure tort is alive and well, can you give us some recent examples of plaintiffs who won lawsuits suing people for publishing true information?
 

For a collection and discussion of recent winning cases, see John A. Jurata, Jr., The Tort That Refuses to Go Away: The Subtle Reemergence of Public Disclosure of Private Facts, 36 San Diego L. Rev. 489 (1999).
 

Daniel -- McClurg here. Thanks for your thoughtful comments on my op-ed in the Washington Post. I stand by the piece, with the footnote that some analytical precision had to give way to a space limitation of 800 words.

In connection with an article I'm currently working on (which, by the way, liberally cites to your Duke article regarding the disclosure tort), my research assistant and I surveyed case law since 1989, when Florida Star v. BJF was decided.

After reviewing approximately 150 cases raising claims in the nature of the disclosure tort, we discovered only two cases in 16 years in which a damages award under the tort was upheld by an appellate court (and one of those is iffy because the indistinct jury verdict was grounded in five different torts, only one of which was the disclosure tort). Several decisions have reversed summary judgments or dismissals for defendants, but it seems that a truer test of the viability of a tort claim is whether damages are actually awarded and whether they are upheld when challenged on appeal.

Finally, just to correct any possible misimpression that I was arguing against the disclosure tort, I want to note that I'm a vigorous supporter of the privacy torts, having published articles in the Northwestern and North Carolina law reviews advocating expanded interpretation of, respectively, the appropriation tort and the intrusion tort. Andrew McClurg
 

Andrew,

Having read your work, I certainly realize that you're not opposed to the privacy torts. I agree that courts haven't been kind to the tort, but where I disagree with you is with the Supreme Court's jurisprudence. There are many courts that have been overzealous in applying the newsworthiness test. But the Supreme Court in Florida Star has not obliterated the tort as Justice White said in hyperbole. So while I agree that the tort has its problems, they are from courts other than the Supreme Court. The Supreme Court has left the tort largely intact.

So what I was objecting to in your op-ed was the suggestion that Florida Star took a big bite out of the tort, when it really had not.

Regarding your study, this will be very interesting and valuable. Will you be collecting statistics about cases that were not appealed? My guess is that many of the cases don't yield tremendous damages, and if damages are awarded by a jury, the cases might often just settle. So to have a full picture of the viability of the tort, you would need to look not just at the appeals but also at how many cases win at trial and receive damages. And I guess to really be accurate, you might also need to look at how many cases settle even prior to trial, as the strongest cases might settle. Because these cases often don't involve tremendous damage awards, the ones that are more clear cut might settle.

Anyway, I certainly understand that you were writing a newspaper op-ed, with a significant word limitation. But it is your interpretation of Florida Star that I take issue with, which is one you've advanced in your North Carolina piece. I generally agree with many of the claims you make in that piece, especially the need for courts to recognize privacy in public, but we disagree on the impact of Florida Star.

So any weakness in the public disclosure tort comes from courts, not from the Supreme Court. This is important because I think that some courts might be more inclined to dismiss public disclosure cases if they have the misimpression that the tort is basically dead after Florida Star. It's easier to kill a dying horse. But the Court has left the tort alive -- and it is my hope that the courts recognize that the tort is alive and well and stop assuming it is dead.

Dan
 

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