Rights in Conflict: The First Amendment’s Third Century

Abstract

I INTRODUCTION Over the past four decades of teaching and studying First Amendment law, I have witnessed the resolution, or at least the clarification, of many free speech and press issues. There are, however, persistent issues--those elusive or intractable tensions between free expression and other basic human liberties--that deserve particularly close scrutiny. Three such issues occasion this article: tensions between free expression and privacy, civility, and equality. Examples of each tension abound: Can an aggressive reporter or photographer be barred from using high-tech tools such as infrared cameras and parabolic microphones to gather images and conversations through the walls of a house or office? Can a person be jailed for cursing and using vulgar four-letter words in public? Can "hate speech" be curbed on a college campus to protect vulnerable groups in society? It should be simple to answer such questions, but instead is exceedingly difficult because of a deep national ambivalence toward the proper balance betwe en free expression and other values. As a nation, we are equally committed to freedom of speech and to those basic values of privacy, civility and equality. We expect the courts to strike the proper balance, to resolve these tensions in ways that will permit us to preserve (and our laws to serve) both sets of values equally well. When the courts fail or falter in this effort, we are deeply disappointed. We expect judges to discover or devise paths of reconciliation, even though they have eluded the rest of us. In the three areas of tension on which this article focuses, the courts have been notably unsuccessful and a breakthrough appears unlikely. Perhaps we should simply acknowledge that resolution of these issues is not possible and that we must accept certain intractable tensions within our First Amendment jurisprudence. Maybe, indeed, we should even be grateful that so few truly irreconcilable conflicts exist. II PRIVACY: WILL THE TRUTH "SET YOU FREE"? In an ideal system, the legal import of truth would be unmistakably clear. Factual correctness would either provide a complete defense to any claim for invasion of privacy or be legally irrelevant. The courts of this country have, however, been curiously ambivalent about the relationship between privacy and truth. Even individual Supreme Court Justices may fairly be accused of vacillation. One might easily forget that Justice Louis D. Brandeis, who late in his career framed the case for maximum freedom of expression most eloquently, (1) had as a young lawyer written the seminal article first advancing the rationale for imposing legal liability on those whose publication of unwelcome truth invaded the privacy of others. (2) Such inconsistency has persisted in ways that underscore the inherent difficulty of the issue. The Supreme Court has consistently declined to recognize truth as an absolute defense when reviewing criminal or civil judgments against those who have published truthful but private information, although the Justices have never sustained such a claim when the accuracy of the material was undisputed. What the Court has said on this issue is helpful but not dispositive: "[S]tate action to punish the publication of truthful information seldom can justify constitutional standards." (3) The crucial word, of course, is "seldom"; Chief Justice Burger chose not to say "never." Such a formula poses this intriguing question: Why has the high Court never flatly foreclosed such claims against publishers of truthful information? Instead of setting that standard, the Court has imposed three conditions: (1) The information must be accurate; (2) it must have obvious "public interest"; and (3) it must not have been "unlawfully obta ined." (4) The first criterion is obvious enough; spreading false information would not only subject the publisher to civil liability for defamation, but also would elicit little sympathy even from a court generally committed to protecting free expression and communication. …