PRIVACY AND THE FIRST AMENDMENT

William L. Prosser has listed four categories of invasion of privacy: intrusion upon the plaintiff's seclusion or solitude, or into his private affairs; public disclosure of embarrassing private facts about the plaintiff; publicity which places the plaintiff in a false light in the public eye; and appropriation, for the defendant's advantage, of the plaintiff's name or likeness. Absent the communication of information disclosed by the intrusion, the first category of invasion raises no first amendment issue.

The second category, the public disclosure of embarrassing private facts, clearly does raise a First Amendment issue. When does the freedom of the press to report "news" outbalance the individual's right to privacy, even if the disclosure is of embarrassing private facts? Thus far, the Supreme Court has only partially answered that question. In cox broadcasting corporation v. cohn (1975) the Court held that the state could not impose liability for invasion of privacy by reason of the defendant's television news disclosure of the name of a rape victim. The Court held that the First Amendment immunized the press from such liability where the information disclosed was truthful and had already been publicly disclosed in court records. Subsequent decisions have indicated that such a First Amendment privilege applies as well to the publication of material in at least some official records designated confidential—for example, information about a criminal proceeding involving a juvenile, even though it was obtained from sources other than the public record. But what of intimate private fact disclosures that do not involve criminal proceedings, or other official action? Or suppose the disclosure of private facts is embarrassing to the subject, but does not injure reputation. Which prevails, the plaintiff's right of privacy or the defendant's freedom of speech ? The Supreme Court thus far has been silent on these issues, and the lower courts have offered no satisfactory answers.

The third category, known as "false light" privacy, was the subject of the Supreme Court's decision in Time, Inc. v. Hill (1967). Defendant's report in Life magazine of plaintiffs' encounter with gangsters was in part false, though not reputation injuring. The Supreme Court held that the defendant was entitled to a First Amendment defense in a false-light privacy action unless the defendant knew the matter reported was false or published with reckless disregard of the truth. The Court acknowledged that this standard was borrowed from the First Amendment defense to defamation which it had fashioned in new york times v. sullivan (1964). Where Sullivan had involved statements about a public official, Hill seemingly extended the First Amendment privilege to statements about "a matter of public interest." The First Amendment defamation defense was later expanded in gertz v. robert welch, inc. (1974) to apply to reports involving "public figures" as well as "public officials," and to require at least a negligence standard of liability as regards defamation of nonpublic figures. The Supreme Court has not had occasion to reconsider the impact of the First Amendment upon "false light" privacy cases since its decision in Gertz.

The fourth category is more generally referred to as the "right of publicity." It differs fundamentally from the other categories in that the injury does not consist of embarrassment and humiliation. It is based rather upon the wrongful appropriation of a person's (usually a celebrity's) name or likeness for commercial purposes. The measure of recovery is based upon the value of the use, not the injury suffered from mental distress. The only Supreme Court decision to consider the impact of the First Amendment upon the right of publicity has been Zacchini v. Scripps-Howard Broadcasting Co. (1977). The plaintiff performed a "human cannonball" act at a county fair. The defendant photographed his entire act and broadcast it in a local television news program. Plaintiff sued for infringement of his right of publicity. The Supreme Court held that the defendant was not entitled to a First Amendment defense. The Court regarded this as "the strongest case" for the right of publicity because it involved "the appropriation of the very activity by which the entertainer acquired his reputation in the first place." Even in the usual case, where a celebrity's name or likeness is used in order to sell a product, the lower courts have not found the First Amendment to constitute a defense, and it seems unlikely that the Supreme Court would take a contrary view. On the other hand, where the name or likeness is used as a part of an informational work, such as a biography or a biographical motion picture, in most cases the First Amendment would appear to constitute a valid defense.

Melville B. Nimmer
(1986)

Bibliography

Nimmer, Melville B. 1968 The Right to Speak from Times to Time: First Amendment Theory Applied to Libel and Misapplied to Privacy. California Law Review 56:935–967.

Prosser, William L. 1971 Torts, 4th ed. St. Paul, Minn.: West Publishing Co.