I’m having great fun doing a directed study this semester on privacy law. Today the student emailed, saying she was torn between two deeply-held principles: the First Amendment protects our right to receive all the information we need to make informed choices, without screening or censoring, and our natural right to privacy and human dignity ensures that we can control, hold inviolate, aspects of our person and personality from public view. She was provoked by a scholarly comment on Diaz v. Oakland Tribune, 188 Cal. Rptr. 762 (Ct. App. 1983). In Diaz a student elected as a community college student-body president sued the Oakland Tribune newspaper for invading her privacy by revealing her transsexuality. The appeals court ruled that her case could proceed to trial to allow a jury to decide whether her transsexuality was newsworthy. The court instructed the jury “[i]n determining whether the subject article is newsworthy you may consider [the] social value of the fact published, the depth of the article, [its] intrusion into ostensibly private affairs, and the extent to which the plaintiff voluntarily acceded to a position of public notoriety.” My student agreed that Diaz’s transsexuality was a private matter, not relevant to whether she could discharge the responsibilities of her elected office. She also agreed with Eugene Volokh’s criticism of the Diaz decision:
Now I agree with the court’s factual conclusion; people’s gender identity strikes me as irrelevant to their fitness for office. But other voters take a different view. Transsexuality, in their opinion, may say various things about politicians (even student body politicians): It may say that they lack attachment to traditional values, that they are morally corrupt, or even just that they have undergone an unnatural procedure and therefore are somehow tainted by it. These views may be wrong and even immoral, but surely it is not for government agents–whether judges or jurors–to dictate the relevant criteria for people’s political choices, and to use the coercive force of law to keep others from informing them of things that they may consider relevant to those choices. I may disagree with what you base your vote on, but I must defend your right to base your vote on it, and the right of others to tell you about it.*
Newsworthiness versus privacy. The First Amendment versus inherent human dignity. Which do you choose?
*Eugene Volokh, Freedom of Speech and Information Privacy: The Troubling Implications of a Right to Stop People From Speaking About You, (52 Stanford L. Rev. 1049 (2000)) http://www.law.ucla.edu/volokh/privacy.htm