The Volokh Conspiracy
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More Criminalization: Disclosure of Private Facts
I'm continue to serialize my forthcoming UC Davis Law Review article What Cheap Speech Has Done: (Greater) Equality and Its Discontents; you can read the Introduction, but in this post I'm talking about how "cheap speech" has led to criminal remedies for the disclosure of private facts. Recall that the article is mostly descriptive, focusing on what's happening, for better or worse.
[A.] The Official Model: Civil Liability
For several decades, the legal system has generally tried to prevent disclosure of private facts using the risk of civil liability. The disclosure of private facts tort has been defined narrowly, as limited to information that is viewed as (1) highly sensitive and (2) not newsworthy, and only when (3) it is communicated to largish groups, rather than just a few friends. Thus narrowed, it has been largely accepted (though a minority of state courts have rejected it, partly on First Amendment grounds). And the recent $140 million Gawker verdict shows its potential effectiveness against media organizations: few Gawker-like sites are likely to display unauthorized sex videos in the coming years.
But, as with libel, liability for disclosure of private facts does little to deter judgment-proof defendants, especially when they victimize poor potential plaintiffs. Say John posts nude photographs of Mary; Mary can't afford to hire a lawyer; and John lacks the assets that would make the case appealing to a contingency fee lawyer. Unless Mary has a well-off supporter or a lawyer who will take the case pro bono—possible,[1] but unlikely—a civil lawsuit is hard to envision.
[B.] Criminalizing Disclosure of Private Facts
And because of this, as with libel, litigants, prosecutors, and judges have been experimenting with other means for fighting what they see as invasions of privacy: criminal prosecution, as well as injunctions backed by the threat of criminal prosecution:
- Some jurisdictions have essentially criminalized the disclosure of privacy tort, something that had been unheard of until recently, but that turns out to be an echo of the 19th-century formulation of criminal libel law.
- Some have authorized broad injunctions against the display of private information.
- Some have enacted specific statutes forbidding the distribution of specific information about people, such as nude photographs, home addresses, financial information, and the like.
For instance, a North Dakota statute expressly criminalizes intentionally or recklessly "[e]ngag[ing] in harassing conduct by means of intrusive or unwanted acts, words, or gestures that are intended to adversely affect the … privacy of another person," when this is done intending "to harass, annoy, or alarm … or in reckless disregard of the fact that another person is harassed, annoyed, or alarmed by the individual's behavior." Most tortious disclosure of private facts is likely to annoy the subject, and is said at least with recklessness of that possibility; it would thus be generally criminal.
A North Carolina statute banned "[p]osting … on the Internet [any] private, personal, or sexual information pertaining to a minor" "[w]ith the intent to intimidate or torment a minor." The state supreme court struck it down, though, partly because the ban on posting "personal … information" was unconstitutionally overbroad.
The reasoning of the California cases involving the identity theft statute makes it a crime to engage in any intentional tort that uses a person's name, which would include disclosure of private facts. Indeed, in People v. Bollaert, prosecutors used this theory to punish someone for running a revenge porn site (which also involved extortion), precisely because it involved tortious disclosure of private facts. And the rationale of the court's decision upholding the conviction would apply to all "intentional civil torts" that use people's names or other identifying information, "including … invasion of privacy by means of intrusion into private affairs and public disclosure of private facts"—not just to the display of nude or sexual images.
And Minnesota law expressly lets judges enjoin "repeated incidents of intrusive or unwanted acts, words, or gestures that … are intended to have a substantial adverse effect on the … privacy of another." Violating such an injunction is a crime. And Minnesota cases show that such "substantial adverse effect" on "privacy" can include the disclosure of private facts:
- "[B]logging and communications to third parties" about one's ex-girlfriend can be enjoined on the grounds that the speech interferes with her "privacy," regardless of "their truth or falsity."
- Sending letters to one's son's Catholic school alleging that the son's grade school math teacher was gay, and implying that the teacher should be fired as a result, could likewise be enjoined.
- A fired employee's retaliating against his ex-employer by sending the ex-employer's "personal and business acquaintances" information about the ex-employer's past misconduct could be enjoined, if it were not based on public record documents.
Likewise, some courts even in other states have issued injunctions that ban people from revealing personal information about others, usually their ex-spouses or ex-lovers.
I'm skeptical of such criminalization of the disclosure of private facts tort, for reasons I discuss elsewhere. But for now, the important point is simply that the era of "cheap speech" has pushed courts and legislatures to criminalization—either through specific statutes or through the use of injunctions backed by the threat of criminal contempt—in order to deal with the danger posed by judgment-proof speakers.
[C.] Nonconsensual Pornography
Though I think criminalizing the entire category of disclosure of private facts is a bad idea, narrower and clearer prohibitions may well be sound; and the criminalization of revenge porn—or, more precisely, nonconsensual porn—is one such.
Nonconsensual porn is an especially severe intrusion on privacy. Sexually themed pictures of ourselves naked, or having sex, are about as "highly offensive" to a reasonable person's sense of privacy as can be. And they are also almost never "of legitimate concern to the public": they don't contribute to the search of truth, democratic self-government, or people's decision-making about their daily lives. Moreover, a ban on knowing distribution of nonconsensual porn is unlikely to deter valuable speech, because such a ban can be relatively precisely drafted.
A First Amendment exception for nonconsensual porn is also consistent with the Court's recent shift to a tradition-based definition of the First Amendment exception. There is much to dislike about the obscenity exception, but the strongest case for protecting pornography arises when it involves "consenting adults."
Obscenity doctrine thus already provides for a more relaxed substantive definition of obscenity when the material is distributed to people other than consenting adults, especially children[2] but perhaps also unwilling viewers.[3] Indeed, even the doctrine's critics, such as Justice Brennan, have generally recognized that distribution of pornography to unwilling viewers might be restricted.[4] Distribution of pornography that involves unwilling models should be punishable as well, with the prurient interest and patent offensiveness requirements suitably relaxed.
To be sure, there are extraordinary situations in which even nonconsensual porn might be valuable—consider a hypothetical Anthony Weiner scenario in which then-Congressman Weiner sent actual naked pictures of himself to someone, rather than just a photo of himself with an erection covered by his underwear.
But an exception for images that have serious political, scientific, and perhaps artistic value should minimize this problem. In United States v. Stevens, the Court did hold that a ban on depictions of animal cruelty couldn't be upheld despite the existence of such an exception; that rejection of the exception, though, relied heavily on how facially overbroad the original ban was. As the Court's reasoning in New York v. Ferber (the child pornography case) suggests, when a ban is focused almost exclusively on constitutionally valueless speech, an exception for valuable speech would suffice to keep the ban constitutional.
So a prohibition on nonconsensual porn is a legitimate means of protecting privacy. And, returning to the theme of this Article, a criminal prohibition is necessary here.
A trial court did strike down the Vermont nonconsensual porn ban, partly on the grounds that "Even if the court assumes the State meets its burden of a compelling governmental interest, being protecting its citizens privacy rights and perhaps reputational rights, it does not meet its burden of showing there are no less restrictive alternatives," such as civil liability. But the prospect of civil liability will do next to nothing in order to deter judgment-proof speakers, of whom there are millions; and the Vermont Supreme Court reversed the trial court decision, though without specifically discussing the judgment-proof speaker problem.
[D.] Crime-Facilitating Personal Information: Home Addresses, Social Security Numbers, Bank Account Numbers
The disclosure tort has generally been applied to the publication of private information that embarrasses. But in principle, it could also be applied to the publication of private information that helps facilitate crimes against the person and thus makes the person fearful.
Indeed, three 1980s cases concluded that publishing the name of a crime witness might be tortious on this theory, if the criminals didn't know the name before, and could thus use the name to intimidate or silence the witness. The same would in principle apply to publishing someone's home address, social security number, bank account numbers, and the like.
But, as with nonconsensual pornography, cheap speech on the Internet makes it easier than ever for such information to get out. Indeed, newspapers often have strong nonlegal reasons not to publish the information: they may have customers or advertisers who would object to what they see as invasion of privacy. (Consider the blowback against newspapers who publish the names and addresses of people who have permits to carry concealed weapons.) Yet individual bloggers might face no such pressure, especially if they blog pseudonymously. And, as with libel, many judgment-proof individual authors may be undeterred by damages.
Perhaps because of this, some states have begun to criminalize the publication of certain personal information that they believe can facilitate crimes against people. California law, for instance, allows courts to issue injunctions forbidding "post[ing] … on the Internet the home address or telephone number of any elected or appointed official if that official has … made a written demand of [the poster] to not disclose his or her home address or telephone number." Illinois imposes a similar rule, though limited to judges. A Florida statute forbids publishing the names or home addresses of police officers, if the posting is done "maliciously, with intent to obstruct the due execution of the law or with the intent to intimidate, hinder, or interrupt any law enforcement officer in the legal performance of his or her duties."
Three district courts have struck down such bans on the publication of home addresses,[5] and I think they were right, because such information has valuable uses. Picketing people's homes is legal, unless it's forbidden by a specific ordinance. Even if such an ordinance bans focused residential picketing, the Court has upheld such bans in part because parading through the targets' neighborhood remains legal. Indeed, the Court struck down an injunction that banned all picketing within 300 feet of a person's home; such picketing near, even if not immediately in front of, a person's home must be constitutionally protected. And if parading past a person's home or picketing near it is protected, then people must be able to inform each other where that home is located.
Likewise, government officials' addresses may often be relevant to whether the officials are complying with local home maintenance ordinances, or whether they live in the proper district. In one recent incident, for instance, the mayor of a Los Angeles suburb was apparently faulting businesses for having bars on their windows, and about people having oil on their driveways. A critic responded by showing a photograph of the mayor's home at a city council meeting—the home's windows had bars, and there was oil on the mayor's driveway.
And in NAACP v. Claiborne Hardware Co., the Court held that people who were trying to enforce a black boycott of white-owned stores had a First Amendment right to post "store watchers" who would take down the names of noncomplying black residents, publish them in a mimeographed paper, and read them aloud at local NAACP meetings. Though that didn't involve the publication of people's addresses, it seems likely that most black citizens of Claiborne County, Mississippi in 1965 would know or be able to easily find out each other's addresses; announcing the names was as good as telling people where all the noncompliers lived. Yet even though this was likely intimidating to many, especially since there were some violent incidents directed at noncompliers, the Court held that an injunction against such speech was unconstitutional.
More broadly, people's addresses have long been included in many public records, such as voter rolls, property tax records, and political candidacy registration forms. Indeed, law professors and law students have free access to a massive database of address information in Lexis's People Search service. Others can get access to similar such services on an item-by-item basis online, and relatively cheaply.
I can certainly see why people would prefer not to have their names posted on free, high-profile political advocacy sites, where they can easily be seen by hotheads, a few of whom might be inclined to vandalism or worse. But so long as such information is broadly available, and is useful for at least some sorts of political advocacy, I think its distribution cannot be banned.
On the other hand, as I've argued before, certain kinds of information—such as social security numbers, computer passwords, bank account numbers, and other such material—generally lack lawful use. Their distribution therefore can be properly restricted, in order to prevent unlawful uses.
And if that is so, then such restrictions can only be effective if they carry the risk of criminal punishment—either direct punishment, or punishment for violating an injunction against distributing such material. Civil damages liability under the disclosure tort, or under some specialized statute, might have sufficed when mass distribution was almost entirely the province of the media (and of other established organizations). Such liability is largely ineffective when judgment-proof defendants can distribute the information online.
[1] Billionaire investor Peter Thiel famously supported the lawsuit against Gawker; and in at least one prominent online speech case, the lawsuit by two Yale Law School students based on insulting, defamatory, and threatening postings on AutoAdmit.com, the plaintiffs got pro bono representation from Stanford law professor (and experienced practitioner) Mark Lemley and Connecticut lawyer (and Yale Law School research scholar) David N. Rosen. Such help for plaintiffs, though, seems likely to be a rare exception.
[2] See generally Ginsberg v. New York, 390 U.S. 629 (1968).
[3] See Redrup v. New York, 386 U.S. 767, 769 (1967) (per curiam) (implying that material may be especially likely to be found obscene when it "assault[s] … individual privacy by publication in a manner so obtrusive as to make it impossible for an unwilling individual to avoid exposure to it").
[4] Paris Adult Theatre I, 413 U.S. at 84-85 (interpreting Redrup).
[5] Publius v. Boyer-Vine, 237 F. Supp. 3d 997, 1029 (E.D. Cal. 2017); Brayshaw v. City of Tallahassee, 709 F. Supp. 2d 1244, 1250 (N.D. Fla. 2010); Sheehan v. Gregoire, 272 F. Supp. 2d 1135, 1149 (W.D. Wash. 2003). But see Bui v. Dangelas, No. 01-18-00790-CV, 2019 WL 7341671, at *5 (Tex. Ct. App. Dec. 31, 2019) (upholding injunction ordering a Facebook page operator to remove the home address of a person criticized in a post, when there had been "active threats against" the criticized person by third parties).
