The First Amendment Leaves Privacy Torts With Narrower Reach

Eugene Volokh frames privacy as a First Amendment concern in two opposite ways. Sometimes privacy and free speech “pull in the same direction”: a speaker may need privacy from the government in order to speak, associate, organize, or criticize without retaliation. But privacy rights can also mean a right to stop other people from speaking about you. In those cases, privacy law is not merely protecting a personal zone; it is restricting someone else’s communication.

The most comfortable alignment between privacy and speech is privacy against government intimidation. Anonymous pamphleteering is part of the founding-era background to modern First Amendment doctrine. People who wrote politically controversial material often took personal risks, and anonymity was one way to reduce those risks. Jane Bambauer says that history, along with related theoretical reasons, helps explain why the First Amendment has been understood to protect against laws forcing speakers to identify themselves.

The argument has both formal and functional versions. Formally, Volokh says, the right to speak includes the right to decide what to say and what not to say. A speaker chooses which arguments, facts, and words to include; one fact a speaker may choose to omit is the speaker’s name. Functionally, compelled identification can deter unpopular speech by exposing the speaker to government retaliation or private retaliation.

That principle extends beyond the name on a leaflet. Volokh points to the Supreme Court’s late-1950s NAACP v. Alabama case, where Alabama sought the NAACP’s membership list. In 1950s Alabama, being identified as an NAACP supporter could carry serious risk. The Court treated forced disclosure of membership as a burden on association and advocacy.

The protection is real, but not absolute. Bambauer raises Federal Election Commission rules requiring disclosure of some political donations. Courts have generally upheld disclosure and spending rules in the election context, she says, given public interests in understanding the election system and ensuring that legitimate stakeholders are funding elections. Volokh adds that election-related disclosure rules are justified by interests in election integrity, detecting bribery, identifying illegal spending such as foreign spending, and possibly informing the public about who is spending in connection with elections. He treats that last rationale as more controversial.

The Fourth Amendment sits on the same side of the ledger. Protection against overzealous government surveillance can facilitate First Amendment activity: if people fear that protest, organizing, or political communication will be monitored, they may be less willing to participate. Volokh connects this to the history of searches for alleged seditious libels in England and to contemporary limits on searching homes, computers, and phones for political materials. The government generally needs probable cause, a warrant, and related protections.

But those protections, too, are limited. If the government has probable cause to believe someone used a computer to compose an unprotected death threat, it may be able to search the computer. In civil litigation, a plaintiff who sues an anonymous speaker for defamation may seek subpoenas to identify the speaker. Courts can perform threshold checks to protect anonymous speakers from legally baseless claims, but a plausible defamation case may justify unmasking. Volokh’s example is simple: Alan sues “Jane Doe” for accusing him of stealing. If the accusation is factual, allegedly false, and potentially defamatory, Alan may need subpoenas to learn that Jane Doe is Betty before he can proceed.

The point is not that anonymity always loses once litigation begins. It is that unlimited anonymity would make it impossible to hold anonymous defamers or threateners accountable. Privacy for speech exists, but it is structured around competing interests.

The central collision comes when the person seeking privacy is not resisting government surveillance or compelled disclosure, but trying to stop a nongovernmental speaker from acquiring or publishing information. “Private” here means nongovernmental. The person may be famous or unknown; the defendant may be an individual, newspaper, advocacy group, website, or blogger. The claim is no longer simply “the government is prying into my affairs.” It is closer to: this person wants to know or disclose something about me, and I do not want them to.

Eugene Volokh illustrates the problem with his own blog. Suppose he is preparing to publish a post about someone. The subject objects: the information may have appeared in a court filing, may have been only attempted to be filed, or may be unrelated to court records. The subject says the name or fact should remain private. Volokh’s First Amendment response is that the right to speak includes the right to speak a person’s name and to speak information about that person. Privacy, in that posture, becomes a demand that someone stop talking about you or avoid certain facts when talking about you.

The tension has deep roots in American privacy law. Jane Bambauer recounts the origin story: Samuel Warren and Louis Brandeis’s Harvard Law Review article “The Right to Privacy.” The article was written in the era of the handheld camera, when early paparazzi could take photographs at social events and tabloids could publish images that would previously have remained effectively private. Warren and Brandeis argued for a common-law claim to protect people from overzealous information gathering and publication.

Bambauer finds that origin ironic because Brandeis later became one of the major figures in the expansion of First Amendment protection. In 1890, however, he was comfortable with an argument that resembled an intellectual-property-style right in personal information: this is my information, and you cannot use it.

Volokh identifies the linguistic intuition behind that argument. English uses “my” both for things one owns and things that are about oneself: “my house,” but also “my name” and “my life story.” That makes it intuitive to some people that, just as they may stop others from using their lawn or house to speak, they should be able to stop others from using their name or life story. To others, the opposite intuition is equally strong: speech is often about people, including people who do not want to be discussed.

That is not incidental to public debate. News stories often concern criminal defendants, suspected wrongdoers, public figures, or private people whose stories illustrate policy problems. Abstract arguments can be difficult to understand without concrete human examples. For Volokh, that is why broad privacy rights create so much friction with the ordinary operations of speech, journalism, biography, and commentary.

A recurring hard case is autobiographical speech: a person tells their own story, but cannot do so without revealing something about another person. Memoirs about relationships, family conflicts aired on television, and accounts of sensitive shared incidents all implicate multiple lives at once. One person says, “That’s my life story; you can’t tell it.” The speaker says, “I’m not telling your story. I’m telling mine.”

Volokh credits legal scholar Sonya West’s work on autobiographical speech, including “The Story of Me: The Underprotection of Autobiographical Speech” and “The Story of Us: Resolving the Face-Off Between Autobiographical Speech and Privacy.” The reason the second title matters, he says, is that almost no autobiography is purely self-contained. A memoir that mentioned no one else would be unusually self-absorbed and probably boring. Biography and unauthorized biography present the issue even more directly: why can’t the subject say, “You cannot make money off my life story”? In general, Volokh says, the law protects the right to speak about other people despite privacy objections — but only generally.

The modern common-law privacy framework is usually divided into four torts, following William Prosser’s synthesis and the Restatement of Torts: public disclosure of private facts, intrusion upon seclusion, false light, and misappropriation of name or likeness, also called the right of publicity. Eugene Volokh stresses that “invasion of privacy” is not one rule. The four strands protect different interests, create different First Amendment problems, and vary in how directly they restrict speech.

The RestatementA nonbinding but influential synthesis produced through the American Law Institute; courts may adopt its formulations as state law. matters because courts often borrow its formulations. It is not a statute enacted by a legislature. It is a project of the American Law Institute, which Volokh describes as an organization of judges, lawyers, and legal academics that restates common-law fields. When courts adopt a Restatement rule, that formulation can become part of a state’s law. That institutional role gave extra force to Prosser’s four-tort model.

Jane Bambauer takes intrusion first because it concerns the beginning of the information life cycle: before information is recorded, published, or shared, someone must observe it. The Restatement definition she quotes imposes liability on one who intentionally intrudes, physically or otherwise, upon another’s solitude, seclusion, private affairs, or concerns, if the intrusion would be highly offensive to a reasonable person.

She breaks the tort into the ideas embedded in that definition: an intentional act; an intrusion; a zone of solitude, seclusion, or private affairs; and a highly offensive character to the intrusion. Textbook cases are easy: peeping Toms, secret recording devices, landlords putting hidden cameras in tenants’ bedrooms or living rooms, and wiretaps.

Volokh complicates the “peeping Tom” example. A person who peers through blinds into a home may be intruding even without trespassing. But the original Peeping Tom of Lady Godiva lore would not be a good modern intrusion case, because Lady Godiva’s ride was public. In general, he says, there is no intrusion upon seclusion for things observed in public. Bambauer agrees: “We shouldn’t all have to avert our eyes in public.”

The public/private line is not always simple. Volokh identifies upskirt photography as a possible intrusion even though it occurs in public, because the camera is used from an angle or position that violates ordinary expectations. Bambauer gives the public-restroom example: accidentally seeing through gaps in a stall is not the same as taking deliberate steps to peer between the slats. The latter can be intrusion.

The more difficult First Amendment cases involve people who are allowed to be present and to observe, but secretly record what they see or hear. A social guest may have permission to sit in the living room and hear a conversation, but not permission to record it. In such cases, the asserted privacy violation is not acquiring the information in the first instance; it is preserving it in a medium that can later be shared or used as proof.

Bambauer says courts historically did not treat this as much of a First Amendment problem. If recording technology was used without consent in an otherwise secluded setting, claims could often proceed. But state wiretap statutes have forced courts to confront the speech interest in recording. Every state, she says, has some law preventing secret recording of private conversations to which the recorder is not a party. Some states go further: “all-party” or “two-party” consent laws prohibit secretly recording a conversation even when the recorder is a participant, unless all parties consent.

According to Bambauer, those laws have sometimes been invoked by police officers recorded while performing public duties in public, such as making arrests. She says every federal circuit that has considered those cases has found that police cannot use a state wiretap statute to recover civil damages from someone who recorded their conduct. Volokh immediately narrows the proposition: “at least in a public place.” The implication, Bambauer says, is that there is a First Amendment interest not only in acquiring knowledge, but in preserving it in a credible form that can be shown to others.

Volokh connects this to hidden-camera journalism. Major news organizations have long used hidden cameras or concealed recordings to capture admissions of wrongdoing. A person might never make the admission if they knew it would be recorded and broadcast. Yet such recording has been understood as part of newsgathering. If the law prohibits it for ordinary people, the First Amendment does not easily allow a carveout only for established media; citizen journalists and new outlets have First Amendment rights too.

Intrusion, then, is often less constitutionally troubling than other privacy torts because it targets physical or sensory invasions into private spaces rather than publication of particular content. But once the claim focuses on recording as such — especially recording public officials in public places or preserving information for later communication — the First Amendment tension becomes harder to avoid.

Public disclosure of private facts is the privacy tort that most directly restricts speech about true information. Jane Bambauer quotes the Restatement definition: liability arises when someone gives publicity to a matter concerning another’s private life if the matter would be highly offensive to a reasonable person and is not of legitimate concern to the public.

Several limits are built into that formulation. The fact must be private; something already generally known to a broad enough community is not private. The defendant must give “publicity,” a broader dissemination requirement than defamation’s publication element. In defamation, telling one other person can satisfy publication. For public disclosure, the communication must reach, or be likely to reach, a broader audience. The disclosed matter must also be highly offensive and not of legitimate public concern.

That “legitimate concern” requirement is the tort’s internal First Amendment release valve. Bambauer says courts are cautious about declaring that the public has no legitimate concern in facts that people are interested in. It would put judges in a difficult position to say, for example, that it may be interesting to learn that a politician is gay, but the public should not be interested in it.

The easy cases, in Bambauer’s view, tend to involve sex and death. Revenge porn is one category. Although many states now have revenge-porn statutes, she says public disclosure tort law would already cover many such cases because nonconsensual publication of intimate sexual material is highly offensive and usually lacks legitimate public concern. Another category is gruesome photographs of deceased family members, especially when circulated in a degrading way, such as as Halloween cards. Bambauer describes these as easy cases of public disclosure, and she says few other categories routinely satisfy courts’ concern that there be no valid public interest.

Eugene Volokh agrees that this tort most squarely collides with the First Amendment. In that collision, he says, free speech has largely prevailed. Courts are reluctant to tell newspapers and other publishers that something they chose to report, and that their readers consume, is not a matter of legitimate public concern. The same difficulty extends beyond established media to social media and internet publication, though judges may be more tempted to discount an individual poster’s claim that the matter is important.

The Gawker litigation over the Hulk Hogan sex tape is treated as an example that fits the traditional narrow category. Bambauer notes that Gawker was a media outlet and the case involved sex. In her view, the case fit the principle that there is not much legitimate public concern in how a person looks while having sex, though she adds that the case was more complicated than that.

The Supreme Court’s most important signal in this area, as discussed by Volokh, is Florida Star v. B.J.F. A woman reported to police that she had been raped. The police department had a policy of omitting rape victims’ names from crime reports released to media, but the policy was not followed. The Florida Star, a weekly newspaper in Jacksonville, published a police report item that included her name. She sued under a Florida statute prohibiting publication of rape victims’ names.

Volokh describes the lesson as a strong protection, but not an absolute one. Generally speaking, he says, there cannot be privacy claims based on information drawn from government records. Court filings, police reports, and other government-released materials often contain sensitive personal details. His account of the rationale is that if the government releases the information, publishers should be able to publish it without having to guess whether a state privacy law will later punish them. But he emphasizes that the protection is not categorical and that the Court did not eliminate the disclosure tort. The decision narrowed the space for liability where the information came from official records, even when the information — such as the name of an alleged rape victim — is intensely private.

The result is a tort that remains recognized in most states that have considered it, but one that is narrow in application. Volokh says a handful of states have rejected it. Where it survives, it is constrained by the public-concern requirement and by constitutional protection for at least some publication of information obtained from government records.

False light is grouped with privacy torts, but Eugene Volokh argues it does not sound much like privacy in the ordinary sense. The Restatement definition he gives imposes liability on one who gives publicity to a matter concerning another that places that person before the public in a false light, if the false light would be highly offensive to a reasonable person and the actor knew the statement was false or acted recklessly about its falsity.

The immediate question is why false light is needed when defamation already addresses false statements about people. Jane Bambauer says she tends to agree that it is unnecessary. Volokh explains the standard distinction: defamation protects against false statements that damage reputation. False light may cover false statements that are offensive or distressing without necessarily lowering the person’s reputation.

Bambauer calls that “splitting hairs,” but Volokh gives the doctrinal logic. Because reputational injury can be severe, private figures may sometimes recover in defamation for negligent falsehoods, especially where the defamatory character is apparent. A newspaper accusing someone of a serious offense must take care not to ruin that person’s career, business, or personal life by carelessness. But if the falsehood concerns something like age, religion, or other facts that do not appear reputationally damaging, courts are more reluctant to impose liability for mere negligence. The Restatement false-light standard therefore requires knowledge or recklessness even for private figures.

The Restatement illustration involves a war hero whose life is dramatized with fictitious details that do not reflect badly on him and may even improve his reputation. Bambauer calls this “false positive light.” It is not defamatory because it does not harm reputation, but it may be offensive because it purports to tell the person’s real life while inventing facts.

Volokh connects the example to the Warren Spahn litigation. Spahn, a famous baseball pitcher who served in World War II, was depicted in a children’s biography as a great war hero. According to Volokh, Spahn objected because he did not claim heroism he had not earned; he regarded himself as a soldier like others. The claim was not that the portrayal exposed private embarrassing facts. It was that the portrayal made up a story about his life.

That is why Volokh prefers to call it the false-light tort rather than false-light invasion of privacy. In many cases, the subject is already well known, and the supposed facts, if true, would not be private. The wrong is not disclosure of a sensitive truth but publicity of a false account. It resembles a claim that “my life” should not be falsified — not because the information is private, but because the life being described belongs, in some sense, to the person described.

Volokh also rejects a common distinction: that defamation requires false statements while false light covers technically true but misleading presentations. Defamation law already treats sufficiently misleading statements as effectively false when they create a false understanding. Bambauer references an earlier example in which a story made it sound as though a person shot a spouse’s lover, even though the actual event was simply a party in the living room. For both defamation and false light, misleading implication can matter when it creates a false impression.

The final tort, misappropriation of name or likeness, is also called the right of publicity. Eugene Volokh treats that name as revealing: this tort is almost the opposite of privacy in the usual sense. It often concerns the commercial value of a public identity, not concealment of private facts.

The Restatement formulation is broad on its face: one who appropriates another’s name or likeness to his own use or benefit is subject to liability. Volokh says that simple statement is misleading. Taken literally, it would cover unauthorized biography. If he wrote “Jane Bambauer: The Untold Story” and placed her photograph on the cover, he would be using her name and likeness for his own benefit and to sell books. Yet he says Bambauer could not sue him for that.

Unauthorized biographies are protected by the First Amendment. So are newspaper and magazine stories that use names and images to attract readers. People may buy a magazine because a celebrity they admire, or dislike, is on the cover. Newspapers may use a criminal suspect’s name or image in a headline to sell copies. That is not enough to create a misappropriation claim.

Volokh says the right of publicity has largely been limited to three categories, while acknowledging that he is simplifying. The first is commercial advertising. Using someone’s name or likeness to sell soap, a television set, an airline, or almost any product other than a work about the person generally creates a strong claim. Jane Bambauer notes that this is true even when the plaintiff is not a celebrity and the advertiser is not trading on name recognition. She points to the first privacy claim involving Ms. Roberson, who discovered her face on a flour advertisement.

The second category is merchandise: T-shirts, coffee mugs, and perhaps some prints. A T-shirt bearing only Taylor Swift’s image is not advertising for a separate product; the image is the product. Still, Volokh says courts generally treat that kind of use as infringing the person’s rights unless the use is parody or otherwise highly transformative.

The third category is reproduction of someone’s entire act. Volokh discusses Zacchini, the Supreme Court case involving Hugo Zacchini, the human cannonball. A television station broadcast his entire act in a favorable way. The Court accepted that he had something like a property right in the performance. It was not copyright, Volokh says, because such acts are not generally protected by copyright, but the law may prevent others from broadcasting the whole act. He notes a related body of cases involving Elvis impersonators and others who effectively take another performer’s act.

Outside those categories, protection for speech is broad. News, entertainment, nonfiction accounts, fictionalized accounts, books, movies, and songs ordinarily may use real people’s names and likenesses. Volokh gives examples such as Forrest Gump and Midnight in Paris, where real people appear as fictionalized characters. Because the works are understood as fiction, there is no false-light claim; because they are expressive works, the name-and-likeness use is not treated as improper appropriation.

Bambauer describes part of the reason as transformation: the work adds creative expression beyond simply exploiting the identity. Volokh says courts sometimes borrow that “transformative” idea from copyright. A book, movie, or song is not merely a name or face printed on an object. He mentions Paul Simon’s “Mrs. Robinson,” which refers to Joe DiMaggio, using him as an icon of American greatness.

The unsettled cases fall between expressive works and merchandise. Volokh groups together paintings, prints, greeting cards, and video games as areas where courts have drawn uncertain lines. Some courts treat paintings as fully protected First Amendment expression. Others have found a print featuring the Three Stooges insufficiently transformative. A Hallmark card using Paris Hilton’s image and a signature joke was allowed to proceed. Sports video games raise similar uncertainty: some courts have found right-of-publicity liability when games depict athletes or identify them through jersey numbers, teams, body type, and other recognizable details; other courts emphasize that video games are fully protected speech under Supreme Court doctrine in other contexts.

So the law has clear poles and a murky middle. Commercial advertising, in Volokh’s account, generally requires consent. T-shirts and similar merchandise are usually treated as prohibited when they simply trade on a person’s identity, unless transformed by parody or comparable expression. Unauthorized biographies, books, movies, songs, and journalism are protected. Prints, cards, paintings, and video games remain uncertain.

Volokh says he would like the Supreme Court to clarify these lines, though he adds that the Court sometimes muddies the waters further. For now, the doctrine remains a patchwork of strong protections, narrow prohibitions, and unresolved boundaries.

Jane Bambauer closes by noting that the discussion has focused on tort law, but privacy statutes now occupy a large and growing field. Statutory privacy law often works through the same basic stages that the torts expose: who may collect data in the first place, and who may disclose it afterward. Intrusion maps onto collection; public disclosure maps onto dissemination. Modern statutes may address high-tech or sector-specific problems, but the underlying conflict remains familiar.

She mentions possible future subjects: CIPA, FERPA, biometric privacy rights, digital advertising, and GDPR-style laws. The details differ, but the recurring issue is the collision between legitimate interests in sharing information and legitimate interests in keeping information controlled.

Eugene Volokh’s final emphasis is that “privacy” is too broad a label to resolve the First Amendment question. Privacy from the government can be a condition for free speech. Privacy asserted against another speaker can be a demand to stop speech. Intrusion, disclosure, false light, and publicity each protect different interests and create different constitutional risks. Even limiting the discussion to tort law requires at least four categories; adding statutes expands the field further.