Comments

This paper is based on presentations at the annual conference of the Law and Society Association, held in Honolulu, HI on June 5-8 2012 and, at a conference, “Perspectives on Privacy,” held at Johannes-Gutenberg University, Mainz, Germany, on June 23-24, 2011.

Document Type

Article

Abstract

What is the virtue of protecting a false reputation? The thesis of this paper is that there is none. There is none, at least, that justifies the suppression of free speech. Yet, there is a growing trend to see the protection of reputation from truth as a key function of the so-called “right of privacy.”

Unfortunately, people often do things that they are not proud of or do not want others to know about. Often, however, these are precisely the things that others want or need to know. For our own protection, each of us is better off being aware of the negative or less-than-flattering qualities of others with whom we deal.

The things that people say about each other are protected by the Constitution as much as any other form of expression. The Supreme Court has recognized repeatedly that the judgment embodied in the First Amendment is that the benefits of a free flow of information outweigh the costs and that those who speak truthfully cannot be made to do so at their peril. Therefore, disclosures of truthful information cannot, in the name of “privacy,” be constitutionally subjected to after-the-fact governmental determinations that they were not justified, unnecessary or even a crime.

Perhaps there are things that it is better for us not to see or hear. But the assumption of the First Amendment is that government should not be deciding these limitations on the free flow of information or what speech is important enough to be “worth it.” If, in the name of protecting privacy or reputations, government agencies can decide after the fact what is and is not legitimate negative information, self-censorship will abound and valuable information will suffer.

For a much more complete (and perhaps less contentious) treatment of privacy rights and the First Amendment, see my “Privacy and the Right of Free Expression,” available at SSRN: http://ssrn.com/abstract= 1996581