The Dynamic Balance Between Free Speech and Privacy Interests

There have been a host of apocalyptic warnings in the blogosphere about the First Circuit’s recent decision holding that truth is not an absolute defense to a defamation claim. One blogger dubbed it “the most dangerous libel decision in decades,” and nearly everyone predicts it could have serious implications for journalists. But instead of joining the chorus of First Amendment advocates decrying the decision, I propose we take a step back to calmly examine the appropriate level of First Amendment protection for truthful private information.

The argument that individuals should be able to legally prevent third parties from revealing true information about them has an eerie similarity to trademark protection. Do we want to live in a culture where people have the legal right to police their reputations from inconvenient truths – a society full of tightly controlled human brands? The concept of being defamed by the truth seems in many ways to be the outgrowth of hyper-commercialization, reflecting a warped value system where image is valued more highly than honesty.

Yet, in an age where one-to-many communication is available to anyone with an Internet connection, it is reasonable to rethink the protection we grant to private, truthful information. The idea that private information is legally protectable is nothing new – we have privacy torts to protect embarrassing facts from disclosure under limited circumstances. But reasonable privacy interests aren’t limited to objectively embarrassing facts. To maintain meaningful interpersonal relationships, we rely on our ability to control how and when we communicate our thoughts and personal information to different audiences, and in this sense, privacy is essential to human bonding. To the extent that technology threatens our ability to maintain compartmentalized lives, there are legitimate reasons to at least remain open to rethinking the way we balance First Amendment and privacy interests.

It is undeniable that privacy interests weigh more heavily against First Amendment rights when the information in question is not of public concern. The question then hinges on the potential chilling effect on free speech due to the uncertainty of whether a court would deem particular information newsworthy. But that chilling effect must be weighed against the risk that our private information will be disclosed to the public, a risk that is dramatically increased by the Internet. In other words, in a world where everyone is a publisher, traditional media outlets are no longer the primary concern of defamation law. It is one thing to rely on professional editors to exercise editorial judgment and quite another to rely on your neighbor.

That being said, privacy concerns relating to individual communicative preferences seem best regulated by social norms rather than the legal system. No one wants to live in a society that gives someone a legal remedy every time they object to their friend posting a kernel of truthful information about them on Facebook. But it would be unreasonable not to admit that our zones of personal privacy, the extent of control we have to tailor what we reveal to different audiences and through what relationships, are and will continue to be altered by technology. Whether this forces us to strike a new balance between freedom of speech and privacy interests remains to be seen, but we should recognize that this balance is not predetermined.


I have no background in law, but spent the past couple years dealing with some of these issues personally. Just one example: my social security number and home address were posted online by an (anonymous) individual, not a company. The information was posted in a way that was instantly replicated across the 'net, leading to--at one time--more than 200 Google hits for my social security number.

I took this to my local authorities and eventually the Attorney General's office in the state of Colorado (where I lived when it happened), and nobody could find an actual law that provided "punishment" for the act of posting that information *by an individual.* The Attorney General's office kept saying that I was protected under Consumer Protection laws, but this turned out to have nothing whatsoever to do with a private individual posting the information. The only "law" this person would have violated was that they probably obtained my social security number through fraudulent (or other illegal) means, but no law enforcement agencies were interested in pursuing THAT, especially since we had no idea who was responsible or where they lived, etc.

Both local and state law enforcement agencies in CO were sympathetic, but felt there was absolutely nothing they could do unless *I* not only learned (and could prove) the identity of the person but also found evidence suggesting the person had committed a crime in *getting* my private data. The publishing of it online did not appear to technically violate any laws, or at least none that any agency in my state at the time was willing to do anything about.

In my case, the fact that the information WAS true was the biggest problem.

I have no idea where things need to go from here. This was just one fairly trivial example (trivial for everyone but me).

It's a libel case. The idea that truth can be defamatory isn't controversial in the least. But the two most important elements of libel are (or have been up until now) defamation and falsehood.

If the plaintiff in this case had sued Staples for public disclosure of embarrassing private facts, I don't think anyone would have a problem with his case going forward.

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