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

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.