Class 5 FR
Intrusion upon Seclusion and Privacy Torts (Lecture Notes)
Recap context:
Today’s topic: privacy torts and their interaction with First Amendment law.
Key privacy torts discussed: Intrusion upon seclusion; Public disclosure of private facts.
Also covered: First Amendment framework for protecting or restricting speech, and how it interacts with privacy/publicity cases.
Intrusion upon seclusion: Elements (three big ones; sometimes four in some jurisdictions)
Intentional intrusion or invasion of solitude/ solitude and seclusion by the defendant.
The intrusion is highly offensive to a reasonable person.
It can be physical or non-physical (the intrusion does not have to be physical).
A fourth, minority-jurisdiction element sometimes added: a reasonable expectation of privacy.
Note emphasized: Intrusion upon seclusion does not require speech; it targets the act of intrusion itself.
Public disclosure of private facts (Private facts privacy tort): Elements and key nuances
Publicity (not just publication) – there is a distinction: publicity means dissemination to a broad audience; publication can be a narrower act of dissemination.
Publication/publicity requires dissemination to a large enough audience (Motorola-type reasoning: spread to a large group; exceptions exist for highly personal but important disclosures).
Matter concerning private life of another – the disclosed information must concern the private life of the plaintiff.
Highly offensive to a reasonable person – this element appears in all versions of the tort.
Not newsworthy / Not of legitimate public concern – if the information is newsworthy, this element may not be met; newsworthiness interacts with First Amendment protections.
Newsworthiness and First Amendment coupling:
Newsworthiness is influenced by the First Amendment framework, including the role of the press in reporting on matters of public importance.
In the U.S., First Amendment case law often weighs the public interest against privacy interests.
Distinction between publication and publicity clarified:
Publication: placement somewhere public (e.g., magazine, public bulletin).
Publicity: dissemination to a broad audience; could be more than publication depending on the jurisdiction and context.
Publicity and the First Amendment: Newsworthiness and public interest
Newsworthiness is not always straightforward; courts assess whether information is of legitimate public concern.
Notion that First Amendment protections are broad and cover speech, writing, and other expressive acts; the government bears a high burden if seeking to limit such speech.
Important constitutional backdrop: the First Amendment limits state power to regulate truthful information in many contexts, especially when lawfully obtained.
Leading First Amendment principles and tests (high-level):
First Amendment fundamental freedoms asserted:
Speech, Press, Assembly, Religion (two clauses in religion: Establishment and Free Exercise), and Petition the Government.
Not all speech is protected; notable exceptions include:
Fighting words – typically unprotected if they incite imminent violence or may produce a breach of the peace; Brandenburg v. Ohio sets the high bar for imminent lawless action, but fighting words doctrine is narrow and high-barred.
Obscenity – known by the standard articulated by Potter Stewart: "I know it when I see it"; obscenity is unprotected.
Child pornography – categorically unprotected.
The general rule (in the course’s framing): most speech is protected; only a few categories are categorically unprotected.
Counterpoint: content-based vs content-neutral restrictions on speech:
Content-based restrictions target particular messages; typically subjected to Strict Scrutiny.
Content-neutral restrictions regulate the speech without regard to content (time, place, manner); typically subjected to Intermediate Scrutiny.
Standards of review for speech cases (three-tier framework):
Strict Scrutiny (highest level):
Law must be narrowly tailored to achieve a compelling government interest, using the least restrictive means.
Expressed as:
Intermediate Scrutiny (middle level):
Law must serve a substantial government interest and be narrowly tailored to achieve that interest.
Expressed as:
Rational Basis (lowest level):
Law must be rationally related to a legitimate government interest; a relatively lenient standard.
Expressed as:
Content-based vs content-neutral restrictions (in context of First Amendment scrutiny)
Content-based restrictions target specific messages or viewpoints; typically strict scrutiny.
Content-neutral restrictions regulate the time, place, and manner of speech without regard to content; typically intermediate scrutiny.
Example discussion: protest permitting and time/place/manner restrictions – government can regulate where, when, and how protests occur if neutral and narrowly tailored to important objectives (e.g., safety, traffic flow).
Newsworthiness, press protections, and the First Amendment’s reach
Newsworthiness is a key concept in evaluating privacy/publicity claims; courts consider whether disclosure serves a legitimate public interest.
The First Amendment underpins protection for truthful information obtained lawfully, even if it touches on sensitive private matters, with few narrow exceptions.
Elected officials and public figures: often the focus of newsworthiness discussions; information about public office holders can shift the analysis.
Leading cases and what they establish (case-by-case highlights as discussed in lecture):
Cox Broadcasting Corp. v. Cohn (1975):
Facts: A Georgia statute criminalizing publication of a rape victim’s name; a reporter published the name from a court proceeding. The issue: does the state’s statute violate the First Amendment when the information is public and truthful?
Holding (as presented in lecture): Publication of information obtained from public records, even if sensitive, is protected; the government cannot prohibit truthful information lawfully obtained from being published; the public dissemination aspect matters (the information had already been made public through the official record).
Key takeaway: The First Amendment protects publication of truthful information obtained from public records, even if the information would be harmful to privacy interests; the state’s attempt to suppress publication violates free press protections.
Smith v. Daily Mail Publishing Co. (note cited in lecture):
Rule presented in lecture: The government cannot prohibit the media from truthful publication of an alleged juvenile delinquent’s name lawfully obtained by the newspaper.
This case reinforces the protection for truthful, lawfully obtained information published by the press.
Daily Mail v. Smith (connection to Smith v. Daily Mail):
The lecture ties Smith v. Daily Mail to the same principle: truthful information lawfully obtained may be published; government cannot impose blanket bans.
Florida Star v. BJF (1989) – Florida Star (not fully stated in lecture, but connected):
Facts: A rape victim’s name published in a newspaper, despite a statute forbidding it; the case discusses whether the press can be penalized for publishing information lawfully obtained from public records.
Holding (as described in lecture): The Court endorsed protection for truthful reporting lawfully obtained, recognizing the tension with privacy interests; the decision is contextual and emphasizes First Amendment protections for truthful, lawfully obtained information.
Gates v. Discovery Communications (U.S. Supreme Court):
Facts: Defendant published true but not newsworthy facts recklessly obtained from public records; the Court weighed whether liability could attach for reckless publication.
Holding (as described): The defendant could be held liable for recklessly publishing true but not newsworthy facts if the facts were obtained from public records.
Key nuance: The source being public records and the content being true but not newsworthy can trigger liability in the right circumstances.
Briscoe v. Daily Mail; (contextual mentions) – Not detailed in transcript, but Smith v. Daily Mail and Cox provide the core structure in this lecture.
Bartnicki v. Vopper (Bartnicki Bieber) (1979/2001, lecture cites):
Facts: Illegally intercepted phone conversations are broadcast by a third party.
Holding (as described): The press may publish information obtained from an illegal interception if the information concerns a matter of public concern and the publisher did not participate in the interception.
Key concepts introduced: one-party consent state (Georgia in the lecture’s context) and the public-interest exception that protects speech/news reporting on matters of public concern even when obtained illegally by others, provided the publisher did not participate in the wrongdoing.
Florida Star (1989) and Cox Broadcasting (1975) revisited in lecture: emphasis on the First Amendment protection for truthful information lawfully obtained, and the limits of state privacy laws in blanket suppressions of truthful reporting.
Melvin v. Reed (1931, lecture reference):
Principle stated by the lecturer (noting context): A person who had reformed may be allowed to leave a past crime behind; suggests rehabilitative public policy considerations in privacy/publicity discourse.
Gates v. Discovery Communications (revisited) and Counterman/Conovan-style discussion (recent, lecture mentions):
Internet threats and mens rea: modern criminal law requires intent for online threats to be punishable; intent (mens rea) is a necessary component for prosecuting online threats.
Counterman v. Colorado (referred to as Conovan v. Colorado in lecture):
Contemporary note: requires showing intent for online threats to be punishable; ties back to mens rea and First Amendment concerns when balancing free expression with criminal threats.
The NDAs discussion (privacy and First Amendment context)
NDAs (nondisclosure agreements) are private contracts.
They do not implicate the First Amendment in and of themselves because they are private-to-private agreements, not government action.
Constitutional rights typically require state action (private individuals generally cannot violate constitutional rights unless state action is involved).
The teacher notes this as a foundational concept for distinguishing private contracts from state-imposed restrictions on speech.
Practical and policy angles surfaced in lecture
Newsworthiness and public interest: difficult concept; courts decide whether a private fact is newsworthy and thus legally publishable despite privacy interests.
The role of the First Amendment in protecting press freedom versus privacy rights: the tension between reporting on private facts and protecting individuals’ private information.
The role of obtaining information lawfully and the impact on liability when information is obtained from public records or official channels, versus information that is illegally obtained or leaked.
The economic and social consequences of privacy laws on media: the First Amendment protection of truthful information can act as a check on overbroad privacy restrictions.
Quick reference, key cases and takeaways (concise list)
Intrusion upon seclusion: elements are intentional intrusion, highly offensive to a reasonable person, and intrusion into solitude/seclusion (with possible reasonable expectation of privacy as a fourth element).
Public disclosure of private facts: elements are publicity, matter concerning private life, highly offensive, not newsworthy; publicity vs publication is a critical nuance; newsworthiness interacts with the First Amendment.
First Amendment speech framework: fighting words, obscenity, child pornography are traditional unprotected categories; most other speech is protected.
Content-based restrictions → strict scrutiny; content-neutral restrictions (time/place/manner) → intermediate scrutiny; general/legitimate interests → rational basis.
Cox Broadcasting Corp. v. Cohn (1975): truthful information from public records about a rape victim cannot be criminalized when published; strong First Amendment protection for truthful information.
Smith v. Daily Mail Publishing Co. (note cited): truthful information lawfully obtained about juveniles cannot be restricted by government.
Florida Star v. BJF (1989): protection for truthful information lawfully obtained; government cannot penalize publication of information lawfully in the press; nuanced by context and newsworthiness.
Gates v. Discovery Communications: liability for publishing true but not newsworthy facts obtained from public records if recklessly done.
Bartnicki v. Vopper: a party may publish an illegally intercepted communication if it did not participate in the interception and the information concerns a matter of public concern.
Counterman v. Colorado (2023): for online threats, intent (mens rea) matters for criminal liability.
NDAs: private contracts; generally not First Amendment issues unless state action is involved.
Key concepts to memorize (for exam):
Elements of intrusion upon seclusion; elements of public disclosure of private facts; difference between publicity and publication; the newsworthiness concept and how First Amendment interacts with privacy.
The three tiers of First Amendment scrutiny and what each requires;
Strict Scrutiny:
Intermediate Scrutiny:
Rational Basis:
Content-based vs content-neutral distinctions, and how they guide which level of scrutiny applies.
The role of “newsworthiness” and public concern in balancing privacy against press freedoms.
The interaction between lawful obtaining of information, public records, and liability under privacy torts.
The enduring First Amendment principle that the government should not suppress truthful information that is lawfully obtained, with narrow exceptions in cases of true threats or specific harmful categories.
End of notes on today’s topics.