Privacy and speech

Supreme Court Review

Volumn 2001, Issue , 2001, Pages 139-198

  Gewirtz, Paul ^a  

^a NONE

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EID: 0040746579     PISSN: 00819557     EISSN: None     Source Type: Book Series    
DOI: 10.1086/scr.2001.3109688     Document Type: Article

References (228)

1. Samuel D. Warren and Louis D. Brandeis, The Right to Privacy, 4 Harv L Rev 193 (1890).
2. Whitney v California, 274 US 357, 372 (1927) (Brandeis concurring).
3. 121 S Ct 1753 (2001).
4. 18 USC § 2511(1)(c).
5. 121 S Ct at 1757.
6. 200 F3d 109 (3d Cir 2000).
7. 121 S Ct at 1756.
8. 200 F3d 109, 121, 131 (3d Cir 1999). The other two Courts of Appeals that had considered the issue before the case came to the Supreme Court also applied intermediate scrutiny. Boehner v McDermott, 191 F3d 463, 467 (DC Cir 1999), vacated and remanded, 121 S Ct 2190 (2001); Peavy v WFAA-TV, 221 F3d 158 (5th Cir 2000), cert denied, 121 S Ct 2191 (2001). Both courts found Title III constitutional as applied to the facts of those cases.
9. Reply Brief for the United States at 11-13, 16-33, Bartnicki v Vopper, 121 S Ct 1753 (2001) (Nos 99-1687, 99-1728) (available at 1999 US LEXIS Briefs 1687).
10. Turner Broadcasting System v Federal Communications Commission, 512 US 622, 641-43, 661 (1994). See also Cohen v Cowles Media Co., 501 US 663, 669 (1991); San Francisco Arts & Athletics, Inc. v United States Olympic Comm., 483 US 522, 536-37 (1987). A content-neutral law of general applicability will be sustained under "intermediate scrutiny," the Court has said, "if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest." Turner Broadcasting System v Federal Communications Commission, 512 US at 662 (quoting United States v O'Brien, 391 US 367, 377 (1968)).
11. Cf. Seattle Times Co. v Rhinehart, 467 US 20, 34 (1984) (media defendant may be placed under protective order not to disclose information that had come from the defendant in the discovery process, although it could publish identical information that came from a different source).
12. Justice Stevens begins his legal analysis of the case (Part V of the opinion) by saying that "we agree with petitioners" that Title III is "a content-neutral law of general applicability," and explaining why: [T]he basic purpose of the statute at issue is to "protec[t] the privacy of wire[, electronic], and oral communications. . . ." The statute does not distinguish based on the content of the intercepted conversations, nor is it justified by reference to the content of those conversations. Rather, the communications at issue are singled out by virtue of the fact that they were illegally intercepted - by virtue of the source, rather than the subject matter. S Ct at 1760. Characterizing Tide III as a "content-neutral law of general applicability" was exactly what led the Court of Appeals below and the Solicitor General before the Supreme Court to argue that the intermediate scrutiny test was appropriate here. Yet instead of taking the seemingly next step of saying that therefore this case is governed by intermediate scrutiny, Justice Stevens simply moves on. "[O]n the other hand," he says, "the naked prohibition against disclosures is fairly characterized as a regulation of pure speech, . . . not a regulation of conduct. . . . [A]s such, it is the kind of 'speech' that the First Amendment protects." Id at 1761. Leaving to one side the revealing characterization of the regulation here as a "naked" prohibition (of "pure" speech no less), this "on the other hand" discussion seems beside the point. It is true that intermediate scrutiny, in addition to being used for "content-neutral laws of general applicability," is sometimes also used for laws that regulate "conduct" and have only an incidental effect on "speech." Justice Stevens sensibly appears to be rejecting this alternative basis for using intermediate scrutiny. But rejecting a second possible ground for using intermediate scrutiny is not an "on the other hand" counterargument to the first ground. Having made this "on the other hand" point, though, Justice Stevens simply moves on, drawing no conclusion here at all about the appropriate legal standard to be used. All of Part V of the opinion reads like a false start.
13. Id at 1761 (citing the Daily Mail case at 443 US 97, 102 (1979)).
14. Id at 1770 (Rehnquist dissenting).
15. Id at 1766 (Breyer concurring).
16. 491 US 524 (1989).
17. 443 US 97 (1979).
18. 435 US 829 (1978).
19. 420 US 469 (1975).
20. 491 US at 533 (quoting Smith v Daily Mail Publishing Co.). 21 420 US 469, 495 (1975).
21. 435 US at 837.
22. 443 US at 103.
23. 491 US at 527.
24. Doctrinal rules are rules of thumb that take account of the predictably competing values at stake in applying legal provisions in particular types of circumstances. It would defeat the purpose of doctrinal rules not to use different tests when predictably very different values are involved.
25. 491 US at 534. At another point in the Florida Star opinion, the Court adds that "the Daily Mail principle does not settle the issue whether, in cases where information has been acquired unlawfully by a newspaper or by a source, government may ever punish not only the unlawful acquisition, but the ensuing publication as well." 491 US at 535 n 8.
26. In addition, the information came to the radio station through a series of "disclosures" that were themselves illegal.
27. The statute also limits liability to those disclosures that are "intentional." 18 USC § 2511(1)(c). Negligent disclosure of the contents of an illegally intercepted conversation is not sanctioned.
28. In Cox Broadcasting, the statute prohibited only the disclosure of rape victims' names by print, broadcast, television, or radio media. In Daily Mail, the statute prohibited only newspapers from publishing the names of juvenile offenders. In Florida Star, the statute prohibited publishing rape victims' names only "in any instrument of mass communication." In Landmark Communications, the statute was not focused on particular media, but made it unlawful to "divulge" information about the proceedings.
29. Arguably, the government should be allowed the additional tool of punishing further disclosures following a leak of its information that it failed to prevent. See text accompanying note 127. But the balance of interests in such a case is somewhat different from the balance in a case where information has been intercepted from private parties.
30. 121 S Ct at 1773-75.
31. Id at 1762.
32. E.g., Oregon v Elstad, 470 US 298, 306 (1985); Elkins v United States, 364 US 206, 217 (1960). Indeed, Title III itself has an exclusionary rule barring the use of illegally seized communications as evidence, in order to deter illegal interceptions. 18 USC § 2515.
33. 121 S Ct at 1773-74 (Rehnquist dissenting) (citing W. R. LaFave and A. W. Scott, Jr., 2 Substantive Criminal Law § 8.10(a) at 422 (1986)).
34. Id at 1762.
35. 458 US 747, 760 (1982). See also Osborne v Ohio, 495 US 103, 109-10 (1990) (it is "surely reasonable for the State to conclude that it will decrease the production of child pornography if it penalizes those who possess and view the product, thereby decreasing demand"). To be sure, the speech involved in Ferber and Osborne, although not legally obscene, is widely understood to have very limited value. It might be argued that suppressing speech that is related to public issues in order to deter the illegal conduct of others is a different matter (just as some object to an exclusionary rule that suppresses valuable probative evidence as a means to deter unlawful police searches). There is indeed a difference, which is one reason I would rest more on the government's second "interest" in limiting the media disclosures - protecting privacy by limiting the harm that the illegal conduct produces. See text accompanying notes 38-40. But Ferber and Osborne demonstrate that whether the fruit of illegal activity is property or speech, the Supreme Court has concluded that closing off outlets deters the illegal conduct.
36. S Rep No 1097, 90th Cong, 2d Sess 69 (1968) (quoted in 121 S Ct at 1773 (Rehnquist, joined by Scalia and Thomas, dissenting)).
37. Gelbard v United States, 408 US 41, 52 (1972).
38. There appears to be an inconsistency in how Justice Stevens characterizes the weight of the interest in protecting privacy. At the outset of his opinion, Justice Stevens states that "the interest in individual privacy" is an interest "of the highest order." 121 S Ct at 1756. But once he announces that the governing legal standard is the Daily Mail standard requiring the government to show a "need of the highest order" to justify regulating the media, he stops characterizing the government's interest in protecting privacy as having that rank. Instead, at the point where he assesses the government's argument that punishing media disclosures prevents compounding the harm from the illegal interception (the government's strongest argument), Justice Stevens starts calling the protection of privacy of communication only "an important interest," id at 1764, obviously something less than "an interest . . . of the highest order." He nowhere reconciles the inconsistency.
39. Copyright law, as well as the common law, have long protected private letters from unauthorized publication. See Salinger v Random House, Inc., 811 F2d 90, 94 (2d Cir 1987); Birnbaum v United States, 436 F Supp 967, 978-82 (EDNY 1977); David Nimmer, Nimmer on Copyright § 5.04 at 5-57 (1999). Far from being barred by First Amendment principles of free expression, copyright law is understood as itself "an engine of free expression." Harper & Row, Publishers, Inc. v Nation Enterprises, 471 US 539, 558 (1985). Moreover, copyright protection may not be ignored simply because the work "contains material of possible public importance" or there is "social value in dissemination," id at 558, 559 (internal citations omitted). The fact that an author's words "may of themselves be 'newsworthy' is not an independent justification for unauthorized copying of the author's expression. . . ." Id at 557.
40. Florida Star, 491 US at 535; see Bartnicki, 121 S Ct at 1765 n 22; New York Times Co. v Sullivan, 376 US 254, 271-72 (1964).
41. Novivki v Cook, 946 F2d 938, 941 (DC Cir 1991).
42. "Title III's prohibition applies only to those who either have actual knowledge of the nature of the interception or actual knowledge of facts that make those origins 'so highly probable that' one should assume such to be true. Restatement (Second) of Torts, § 12, cmt. a (1965). Indeed, the facts surrounding the interception must be apparent, because Title III imposes no duty of inquiry. Ibid.; U.S. Br. 45-46. Consequently, Title III does not deter (and for the past three decades has not deterred) the press from reporting the news. Far from requiring reporters to research sources for fear of illegality, it merely requires them to refrain from use if they know or all but know that the source was an unlawful interception." Reply Brief for the United States at 20, Bartnicki v Vopper, 121 S Ct 1753 (2001) (Nos 99-1687, 99-1728) (available at 1999 US Briefs LEXIS 1687).
43. 376 US 254, 279-80 (1964).
44. 403 US 713 (1971).
45. 121 S Ct at 1761.
46. Although this fact was not discussed in the majority opinions, Justice Harlan emphasized it in his dissent. See 403 US at 754.
47. Id at 735-40 (White, joined by Stewart, concurring).
48. 2000 US Trans LEXIS 77, *17.
49. The phrase has been used in other contexts such as cases involving the scope of public employee speech, where it raises somewhat similar issues. See, e.g., Connick v Myers, 461 US 138 (1983); Pickering v Board of Education, 391 US 563 (1968); Rankin v McPherson, 483 US 378 (1987); Waters v Churchill, 511 US 661 (1994).
50. See Edward J. Bloustein, The First Amendment and Privacy: The Supreme Court Justice and the Philosopher, 28 Rutgers L Rev 41, 54-57 (1974) ("[The] weight to be given 'the public interest in obtaining information' should depend on whether the information is relevant to the public's governing purposes. 'Public interest,' taken to mean curiosity, must be distinguished from 'public interest' taken to mean value to the public of receiving information of governing importance. There is [no First Amendment right] to satisfy public curiosity and publish lurid gossip about private lives.").
51. See Lloyd Weinreb, Your Place or Mine? Privacy of Presence Under the Fourth Amendment, 1999 Supreme Court Review 253 (contrasting what he calls "privacy of place" and "privacy of presence"); Robert C. Post, The Social Foundations of Privacy: Community and Self in the Common Law Tort, in Constitutional Domains: Democracy, Community, Management 54-55, 72-73 (1995) (discussing Erving Goffman's concept of "information preserves").
52. See Lloyd Weinreb, Your Place or Mine? Privacy of Presence Under the Fourth Amendment, 1999 Supreme Court Review 253 (contrasting what he calls "privacy of place" and "privacy of presence"); Robert C. Post, The Social Foundations of Privacy: Community and Self in the Common Law Tort, in Constitutional Domains: Democracy, Community, Management 54-55, 72-73 (1995) (discussing Erving Goffman's concept of "information preserves").
53. This approach is somewhat analogous to the approach under Fourth Amendment law. The existence of a zone of reasonably expected privacy generates more demanding requirements before that zone may be searched. The existence within that zone of particular "content" (evidence of criminal behavior) does not generally eliminate the need to observe the Fourth Amendment requirements. In the end, of course, "content" is certainly relevant under the Fourth Amendment, however. The requirements can be met, warrants will issue, and searches be allowed if law enforcement officers demonstrate that there is probable cause to believe that particular "content" (evidence of criminal behavior) actually does exist within the zone. But the existence of the zone generates the heightened requirements. Similarly, one can view copyright law as creating a zone that is protected without regard to content. As noted above, the fact that an author's words "may of themselves be 'newsworthy' is not an independent justification for unauthorized copying of the author's expression . . . ." Harper & Row, Publishers, Inc. v Nation Enterprises, 471 US 539, 557 (1985); id at 558, 559; note 40 above. See also Seattle Times Co. v Rhinehart, 467 US 20 (1984).
54. See, e.g., Roman Jakobson, Closing Statement: Linguistics and Poetics, in Thomas Sebeok, ed, Style in Language 353-58 (1960); Peter Brooks and Paul Gewirtz, eds, Law's Stories: Narrative and Rhetoric in the Law (1996).
55. See, e.g., Roman Jakobson, Closing Statement: Linguistics and Poetics, in Thomas Sebeok, ed, Style in Language 353-58 (1960); Peter Brooks and Paul Gewirtz, eds, Law's Stories: Narrative and Rhetoric in the Law (1996).
56. In other contexts, however, it might end up being more privacy protective. A "zone" approach might grant the press protection to publish photographs of any person in the public space. But see text accompanying note 149. A content approach might withhold protection if the photograph did not have content of public concern.
57. 121 S Ct at 1756.
58. Id at 1764.
59. Id at 1762 (emphasis added).
60. These statements by Justice Stevens are inexplicable for other reasons. In a variety of other circumstances, the Court has upheld sanctions on the press for publishing truthful information. See, e.g., Cohen v Cowles Broadcasting Co., 501 US 663 (1991) (First Amendment does not bar a promissory estoppel action against a newspaper for publishing truthful information about the source of a political news story in breach of its promise to keep the source's identity confidential); Harper & Row, Publishers, Inc., v Nation Enterprises, 471 US 539 (1985) (First Amendment does not bar an action against a magazine for publishing truthful copyrighted material); Zacchini v Scripps-Howard Broadcasting Co., 433 US 562 (1977) (First Amendment does not "immunize the media [from damage liability] when they broadcast a performer's entire act without his consent"); Seattle Times Co. v Rhinehart, 467 US 20 (1984) (First Amendment does not bar an action against a newspaper for publishing truthful information learned during discovery in a civil suit that was covered by a protective order).
61. 121 S Ct at 1766 (quoting his earlier separate opinions in Turner Broadcasting System, Inc. v Federal Communications Commission, 520 US 180, 227 (1997) (Breyer concurring in part), and Nixon v Shrink Missouri Government PAC, 528 US 377, 402 (2000) (Breyer concurring)).
62. Id (citations omitted).
63. Id.
64. Nixon v Shrink Missouri Government PAC, 528 US at 402; Turner Broadcasting System, Inc. v Federal Communications Commission, 520 US at 227. The relationship between Breyer's general conception of the First Amendment and the traditional conception is discussed further in Part IV.
65. 121 S Ct at 1766.
66. Id at 1764.
67. There are suggestions in his opinion that Justice Breyer is in fact giving weight to those nonspeech aspects of privacy. "As a general matter," Justice Breyer says, "the Federal Constitution must tolerate laws of this kind because of the importance of these privacy and speech-related objectives." And the basic standard that Justice Breyer uses in deciding this case is to ask whether the "restrictions on speech . . . are disproportionate when measured against the corresponding privacy and speech-related benefits." Id at 1766, 1767 (emphasis added). Thus, "privacy" benefits that are not "speech-related" appear to have some independent weight in the constitutional balance. Presumably, Justice Breyer is leaving open the possibility that he would uphold government action to protect privacy from media infringement where only the nonspeech aspects of privacy are involved, even though they are not themselves a "constitutional interest," just as in other cases he has concluded that nonspeech (and nonconstitutional) interests can sometimes justify a restriction on speech. See text accompanying notes 176-78.
68. 121 S Ct at 1766.
69. Id at 1766-67.
70. "Media dissemination of an intimate conversation to an entire community will often cause the speakers serious harm over and above the harm caused by an initial disclosure to the person who intercepted the phone call." Id at 1766.
71. Id at 1767.
72. Id.
73. Id at 1761 (citation omitted).
74. The meaning of the relevant passage on "receipt" is somewhat uncertain. In the context of explaining that the media "engaged in no unlawful activity other than the ultimate publication," id at 1767, Breyer says: "[A]s the Court points out, the statutes do not forbid the receipt of the tape itself. Ante, at 9. The Court adds that its holding 'does not apply to punishing parties for obtaining the relevant information unlawfully.' Ante, at 17 n.19 (emphasis added)." Id. The implication seems to be, although this is not certain, that punishing the receipt in these circumstances might be constitutional even if punishing "the ultimate publication" is not. Justice Breyer quite clearly seems to consider "obtaining" to include "receipt." However, the full text of Justice Stevens's footnote 19 suggests that he is probably using "obtaining" to mean no more than directly stealing or intercepting the information. Footnote 19 seems simply to make explicit that "of course" it would be "frivolous" to assert that the First Amendment protects such direct intrusions even by the press. In any event, it is hard to see why this case should be decided differently if Congress had made the "receipt" of illegally intercepted information itself unlawful. Congress has made unlawful both the "interception" of certain electronic communications and the "disclosure" of that intercepted information. Why should the constitutionality of these provisions depend on whether an interim step between the unlawful interception and the unlawful disclosure is also explicitly made unlawful?
75. Id at 1766 (emphasis added).
76. Id at 1766, 1767, 1768.
77. Perhaps anticipating such a question, particularly when that characterization is key to resolving a motion for summary judgment, Justice Breyer adds: "Nor should editors, who must make a publication decision quickly, have to determine present or continued danger before publishing this kind of threat." Id at 1768. It is also reasonable to ask whether it would be more appropriate to report the threat, if there was believed to be one, to law enforcement authorities. It is not settled, however, that Title III would permit this "disclosure" any more than it permits media publication. Several lower court cases have construed Title III to prohibit certain disclosures of illegally intercepted material to law enforcement entities. In re Grand Jury, 111 F3d 1066, 1077-79 (3d Cir 1997); Berry v Funk, 146 F3d 1003, 1011-13 (DC Cir 1998); Chandler v United States Army, 125 F3d 1296, 1298-1302 (9th Cir 1997). Indeed, when Justice O'Connor was a state judge in Arizona, she had such a case. State v Dwyer, 585 P2d 900 (Ariz App 1978) (affirming Judge O'Connor's suppression, in a homicide case, of a privately intercepted telephone conversation that had been given to law enforcement authorities). In his Reply Brief in Bartnicki, the Solicitor General, addressing disclosures to the police, stated that "the traditional defense of 'necessity' privileges conduct that is necessary to protect lives where (as here) the defense is not foreclosed by statute." Reply Brief for the United States at 19, Bartnicki v Vopper, 121 S Ct 1753 (2001) (Nos 99-1687, 99-1728) (available at 1999 US Briefs LEXIS 187). Justice Breyer himself suggests that there is a broader "privilege allowing the reporting of threats to public safety," not limited to reporting those threats to law enforcement officials. 121 S Ct at 1768.
78. He does quote this part of the intercepted conversation in his opinion's statement of facts, id at 1757, but makes nothing of it in the remainder of his opinion.
79. Id at 1765.
80. Id at 1768.
81. Id.
82. Id. The concept of "public figures" and "private figures" has been especially important in cases assessing the place of the First Amendment in defamation actions after New York Times Co. v Sullivan, 376 US 254 (1964). See, e.g., Philadelphia Newspaper, Inc. v Hepps, 475 US 767 (1986); Wolston v Reader's Digest Assn, Inc., 443 US 157 (1979); Time, Inc. v Firestone, 424 US 448 (1976); Gertz v Robert Welch, Inc., 418 US 323 (1974).
83. 121 S Ct at 1765.
84. Id at 1768 (emphasis added).
85. Id.
86. Id (emphasis added).
87. Breyer takes the phrase from Warren and Brandeis's famous article on privacy, 4 Harv L Rev at 214 (cited in note 1), and it appears in Section 652D of the Restatement (Second) of Torts (1977), which establishes liability for those who "give[] publicity to a matter concerning the private life of another . . . if the matter publicized is of a kind that (a) would be highly offensive to a reasonable person, and (b) is not of legitimate concern to the public." (Emphasis added.)
88. 121 S Ct at 1764.
89. Id at 1762.
90. Justice Breyer gives an interesting gloss on his own Bartnicki opinion in his recent Madison Lecture. Stephen Breyer, Our Democratic Constitution, the Fall 2001 James Madison Lecture, delivered at NYU Law School on October 22, 2001 (copy on file with the author). He characterizes the Bartnicki decision as a "narrow" one and argues that the narrowness was appropriate because privacy questions are now "unusually complex." "[T]he complex nature of these problems calls for resolution through a form of participatory democracy," with "law revision that bubbles up from below." This, in turn, "suggests a need for . . . judicial caution or modesty" that does not "pre-empt" the democratic process. Id at 14-17. This is not just a general defense of narrow decisions in this area, however. It is pointedly an argument for narrowness in decisions in a particular direction - decisions that protect the media and limit the scope of privacy protection. The point is that the Court should "leav[e] open broadcaster liability in other . . . circumstances," id at 16, and allow the participatory democratic process to take privacy-protective steps.
91. They do distinguish the Pentagon Papers case, however, saying that that case involved government information and was also a "prior restraint" case, rather than concluding that it was wrongly decided simply because Daniel Ellsberg had stolen the papers. 121 S Ct at 1776.
92. Id at 1769.
93. Id at 1776.
94. See, e.g., Warren and Brandeis, 4 Harv L Rev 193 (cited in note 1); Ruth Gavison, Privacy and the Limits of Law, 89 Yale L J 421 (1980); Jeffrey Rosen, The Unwanted Gaze: The Destruction of Privacy in America (2000); Post, The Social Foundations of Privacy (cited in note 52); Charles Fried, An Anatomy of Values (1970); Amitai Etzioni, The Limits of Privacy (1999); Richard C. Turkington and Anita L. Allen, Privacy Law: Cases and Materials (1999); Spiros Simitis, Reviewing Privacy in an Information Society, 135 U Pa L Rev 707 (1987).
95. See, e.g., Warren and Brandeis, 4 Harv L Rev 193 (cited in note 1); Ruth Gavison, Privacy and the Limits of Law, 89 Yale L J 421 (1980); Jeffrey Rosen, The Unwanted Gaze: The Destruction of Privacy in America (2000); Post, The Social Foundations of Privacy (cited in note 52); Charles Fried, An Anatomy of Values (1970); Amitai Etzioni, The Limits of Privacy (1999); Richard C. Turkington and Anita L. Allen, Privacy Law: Cases and Materials (1999); Spiros Simitis, Reviewing Privacy in an Information Society, 135 U Pa L Rev 707 (1987).
96. See, e.g., Warren and Brandeis, 4 Harv L Rev 193 (cited in note 1); Ruth Gavison, Privacy and the Limits of Law, 89 Yale L J 421 (1980); Jeffrey Rosen, The Unwanted Gaze: The Destruction of Privacy in America (2000); Post, The Social Foundations of Privacy (cited in note 52); Charles Fried, An Anatomy of Values (1970); Amitai Etzioni, The Limits of Privacy (1999); Richard C. Turkington and Anita L. Allen, Privacy Law: Cases and Materials (1999); Spiros Simitis, Reviewing Privacy in an Information Society, 135 U Pa L Rev 707 (1987).
97. See, e.g., Warren and Brandeis, 4 Harv L Rev 193 (cited in note 1); Ruth Gavison, Privacy and the Limits of Law, 89 Yale L J 421 (1980); Jeffrey Rosen, The Unwanted Gaze: The Destruction of Privacy in America (2000); Post, The Social Foundations of Privacy (cited in note 52); Charles Fried, An Anatomy of Values (1970); Amitai Etzioni, The Limits of Privacy (1999); Richard C. Turkington and Anita L. Allen, Privacy Law: Cases and Materials (1999); Spiros Simitis, Reviewing Privacy in an Information Society, 135 U Pa L Rev 707 (1987).
98. See, e.g., Warren and Brandeis, 4 Harv L Rev 193 (cited in note 1); Ruth Gavison, Privacy and the Limits of Law, 89 Yale L J 421 (1980); Jeffrey Rosen, The Unwanted Gaze: The Destruction of Privacy in America (2000); Post, The Social Foundations of Privacy (cited in note 52); Charles Fried, An Anatomy of Values (1970); Amitai Etzioni, The Limits of Privacy (1999); Richard C. Turkington and Anita L. Allen, Privacy Law: Cases and Materials (1999); Spiros Simitis, Reviewing Privacy in an Information Society, 135 U Pa L Rev 707 (1987).
99. See, e.g., Warren and Brandeis, 4 Harv L Rev 193 (cited in note 1); Ruth Gavison, Privacy and the Limits of Law, 89 Yale L J 421 (1980); Jeffrey Rosen, The Unwanted Gaze: The Destruction of Privacy in America (2000); Post, The Social Foundations of Privacy (cited in note 52); Charles Fried, An Anatomy of Values (1970); Amitai Etzioni, The Limits of Privacy (1999); Richard C. Turkington and Anita L. Allen, Privacy Law: Cases and Materials (1999); Spiros Simitis, Reviewing Privacy in an Information Society, 135 U Pa L Rev 707 (1987).
100. See, e.g., Warren and Brandeis, 4 Harv L Rev 193 (cited in note 1); Ruth Gavison, Privacy and the Limits of Law, 89 Yale L J 421 (1980); Jeffrey Rosen, The Unwanted Gaze: The Destruction of Privacy in America (2000); Post, The Social Foundations of Privacy (cited in note 52); Charles Fried, An Anatomy of Values (1970); Amitai Etzioni, The Limits of Privacy (1999); Richard C. Turkington and Anita L. Allen, Privacy Law: Cases and Materials (1999); Spiros Simitis, Reviewing Privacy in an Information Society, 135 U Pa L Rev 707 (1987).
101. See, e.g., Warren and Brandeis, 4 Harv L Rev 193 (cited in note 1); Ruth Gavison, Privacy and the Limits of Law, 89 Yale L J 421 (1980); Jeffrey Rosen, The Unwanted Gaze: The Destruction of Privacy in America (2000); Post, The Social Foundations of Privacy (cited in note 52); Charles Fried, An Anatomy of Values (1970); Amitai Etzioni, The Limits of Privacy (1999); Richard C. Turkington and Anita L. Allen, Privacy Law: Cases and Materials (1999); Spiros Simitis, Reviewing Privacy in an Information Society, 135 U Pa L Rev 707 (1987).
102. 121 S Ct at 1766 (Breyer concurring).
103. See text accompanying notes 120, 135-36.
104. Owen M. Fiss, Liberalism Divided: Freedom of Speech and the Many Uses of State Power (1996). See also Owen M. Fiss, The Irony of Free Speech (1996).
105. Owen M. Fiss, Liberalism Divided: Freedom of Speech and the Many Uses of State Power (1996). See also Owen M. Fiss, The Irony of Free Speech (1996).
106. Fiss, Liberalism Divided at 5.
107. William Carlos Williams, Danse Russe, in A. Walton Litz and Christopher MacGowan, eds, The Collected Poems of William Carlos Williams 1909-1939 at 86-87 (1986).
108. See Paul Gewirtz, Constitutional Law and New Technology, 64 Social Research 1191 (1997).
109. 100 121 S Ct 2038 (2001).
110. Id at 2043.
111. Id (citation omitted). The Court in Kyllo relies on an earlier case in which technological change fostered a change in Fourth Amendment doctrine, Katz v United States, 389 US 347 (1967). In Katz, the Court discarded a constitutional rule that the Fourth Amendment was triggered only by a physical trespass, in significant part because new electronic technologies were allowing widespread intrusions on areas where there was a reasonable expectation of privacy even without any physical intrusion.
112. See A. Michael Froomkin, The Death of Privacy? 52 Stan L Rev 1461 (2000); Rosen, The Unwanted Gaze at 57-58, 159-95 (cited in note 93); Lawrence Lessig, Code and Other Laws of Cyberspace 142-64 (1999); Turkington and Allen, Privacy Law at 311-25 (cited in note 93).
113. See A. Michael Froomkin, The Death of Privacy? 52 Stan L Rev 1461 (2000); Rosen, The Unwanted Gaze at 57-58, 159-95 (cited in note 93); Lawrence Lessig, Code and Other Laws of Cyberspace 142-64 (1999); Turkington and Allen, Privacy Law at 311-25 (cited in note 93).
114. See A. Michael Froomkin, The Death of Privacy? 52 Stan L Rev 1461 (2000); Rosen, The Unwanted Gaze at 57-58, 159-95 (cited in note 93); Lawrence Lessig, Code and Other Laws of Cyberspace 142-64 (1999); Turkington and Allen, Privacy Law at 311-25 (cited in note 93).
115. See A. Michael Froomkin, The Death of Privacy? 52 Stan L Rev 1461 (2000); Rosen, The Unwanted Gaze at 57-58, 159-95 (cited in note 93); Lawrence Lessig, Code and Other Laws of Cyberspace 142-64 (1999); Turkington and Allen, Privacy Law at 311-25 (cited in note 93).
116. Cf. Geoffrey R. Stone, The Scope of the Fourth Amendment: Privacy and the Police Use of Spies, Secret Agents, and Informers, 1966 Am Bar Found Res J 1193, 1216 (suggesting a "principle of conservation of privacy," which seeks "to maintain a cumulative level of privacy comparable to that existing at the time the fourth amendment was drafted"). This point is a general one, and has often been lost in discussions about the tension between liberty and security after the events of September 11, 2001. Many of our civil liberties doctrines and rules rest on background assumptions about the risks to security that will follow from civil liberties of a certain scope. For example, when we say it is better that ten guilty people go free than that one innocent person be convicted, we are implicitly assuming that the risk to society of setting ten guilty people free is a tolerable risk. But if technologies and access to technologies develop so that the ten guilty people have access to footlocker-sized nuclear weapons and the will to detonate them, then we may want to adjust our epigram (and at least some of our rules in some circumstances). Not to do so is to end up with a real-world balance between liberty and security that is very different from the one we started with. The point is just as applicable in the other direction. If we do not adjust existing rules when new investigative technologies give law enforcement offi-cials much greater capacity to reduce liberty, then we will end up with a much different liberty/security balance than we thought we had. Liberty-oriented rules of wider scope will be necessary just to keep pace.
117. Paul Gewirtz, Victims and Voyeurs: Two Narrative Problems at the Criminal Trial, in Law's Stories at 135, 152 (cited in note 54).
118. The point here is one of degree. Concerns about the press invading privacy and pushing boundaries in that direction are hardly new, of course. In a different social context where there were different cultural boundaries, Warren and Brandeis's famous article on privacy expressed analogous sorts of concerns about press behavior.
119. See, e.g., James Fallows, Breaking the News (1996); Neil Postman, Amusing Ourselves to Death (1985).
120. See, e.g., James Fallows, Breaking the News (1996); Neil Postman, Amusing Ourselves to Death (1985).
121. DOJ Oversight: Preserving Our Freedoms While Defending Against Terrorism, hearing before Senate Judiciary Committee, 107th Cong 1 (2001) (testimony of Attorney General John Ashcroft, Dec 6, 2001), available at .
122. Vincent Blasi, The Checking Value in First Amendment Theory, 1977 Am Bar Found Res J 521 (1977).
123. A right to privacy as the freedom to keep the government from having unwanted access to personal information is protected through the Fourth Amendment and also as an aspect of substantive due process under the Fifth and Fourteenth Amendments. Whalen v Roe, 429 US 589 (1977). The Fourth Amendment is phrased as a "right of the people to be secure . . . against unreasonable searches and seizure," and, as literally phrased, does not have a state action requirement. But the Fourth Amendment has not been interpreted as providing protections against nongovernmental interference, and I do not rest my argument on a claim that media interference with "privacy" violates a constitutional right of privacy.
124. The idea that the First Amendment as a whole has this core meaning has its contemporary roots in the writings of Alexander Meiklejohn, e.g., Free Speech and Its Relation to Self-Government (1948), and has been developed in recent years by Owen Fiss, e.g., Liberalism Divided (cited in note 96); The Irony of Free Speech (cited in note 96), and Cass Sunstein, Democracy and the Problem of Free Speech (1993). These writers do not distinguish between freedom of speech and freedom of the press. However, this understanding of the First Amendment seems to have distinctive force in understanding freedom of the press in particular, both because the institutional nature of media entities makes less relevant another standard rationale for free speech - promoting self-fulfillment - and, more importantly (as I note below), because a wider concept of freedom of the press would distinctively threaten privacy values.
125. The idea that the First Amendment as a whole has this core meaning has its contemporary roots in the writings of Alexander Meiklejohn, e.g., Free Speech and Its Relation to Self-Government (1948), and has been developed in recent years by Owen Fiss, e.g., Liberalism Divided (cited in note 96); The Irony of Free Speech (cited in note 96), and Cass Sunstein, Democracy and the Problem of Free Speech (1993). These writers do not distinguish between freedom of speech and freedom of the press. However, this understanding of the First Amendment seems to have distinctive force in understanding freedom of the press in particular, both because the institutional nature of media entities makes less relevant another standard rationale for free speech - promoting self-fulfillment - and, more importantly (as I note below), because a wider concept of freedom of the press would distinctively threaten privacy values.
126. The idea that the First Amendment as a whole has this core meaning has its contemporary roots in the writings of Alexander Meiklejohn, e.g., Free Speech and Its Relation to Self-Government (1948), and has been developed in recent years by Owen Fiss, e.g., Liberalism Divided (cited in note 96); The Irony of Free Speech (cited in note 96), and Cass Sunstein, Democracy and the Problem of Free Speech (1993). These writers do not distinguish between freedom of speech and freedom of the press. However, this understanding of the First Amendment seems to have distinctive force in understanding freedom of the press in particular, both because the institutional nature of media entities makes less relevant another standard rationale for free speech - promoting self-fulfillment - and, more importantly (as I note below), because a wider concept of freedom of the press would distinctively threaten privacy values.
127. The idea that the First Amendment as a whole has this core meaning has its contemporary roots in the writings of Alexander Meiklejohn, e.g., Free Speech and Its Relation to Self-Government (1948), and has been developed in recent years by Owen Fiss, e.g., Liberalism Divided (cited in note 96); The Irony of Free Speech (cited in note 96), and Cass Sunstein, Democracy and the Problem of Free Speech (1993). These writers do not distinguish between freedom of speech and freedom of the press. However, this understanding of the First Amendment seems to have distinctive force in understanding freedom of the press in particular, both because the institutional nature of media entities makes less relevant another standard rationale for free speech - promoting self-fulfillment - and, more importantly (as I note below), because a wider concept of freedom of the press would distinctively threaten privacy values.
128. This was Alexander Meiklejohn's rationale, The First Amendment Is an Absolute, 1961 Supreme Court Review 245, 255-57. For a criticism of Meiklejohn's inclusion of culture, see Robert Bork, Neutral Principles and Some First Amendment Problems, 47 Ind L J 1, 26-28 (1971).
129. This was Alexander Meiklejohn's rationale, The First Amendment Is an Absolute, 1961 Supreme Court Review 245, 255-57. For a criticism of Meiklejohn's inclusion of culture, see Robert Bork, Neutral Principles and Some First Amendment Problems, 47 Ind L J 1, 26-28 (1971).
130. See Sunstein, Democracy and the Problem of Free Speech at 135-36, 164-65 (cited in note 111). For a criticism of Sunstein's view - indeed, a broader criticism of approaches that see the First Amendment's primary purpose as promoting deliberation about public issues - see J. M. Balkin, Populism and Progressivism as Constitutional Categories, 104 Yale L J 1935 (1995).
131. See Sunstein, Democracy and the Problem of Free Speech at 135-36, 164-65 (cited in note 111). For a criticism of Sunstein's view - indeed, a broader criticism of approaches that see the First Amendment's primary purpose as promoting deliberation about public issues - see J. M. Balkin, Populism and Progressivism as Constitutional Categories, 104 Yale L J 1935 (1995).
132. What differentiates freedom of the press from freedom of speech is that the former typically involves an institution of production and distribution. Since wide distribution of information is usually the main threat to privacy protection, arguably "freedom of the press" poses a greater danger to privacy than "freedom of speech" simpliciter - and therefore particular care should be taken in defining what comes within the constitutional concept of freedom of the press or particular receptivity shown when privacy values are balanced against it.
133. There are countries in which both free press and privacy are explicitly protected by the Constitution - indeed, privacy is protected from both governmental and nongovernmental infringement. See text accompanying notes 140-55. In such countries it may not matter greatly which analytic route is followed and, in particular, whether a core conception of free press is defined. Even a very broad conception of free press will have to be reconciled with or "balanced" against the privacy values protected elsewhere in the constitution itself. But in our Constitution, the stakes in understanding the rationale for protecting a free press may be higher, for in our press-privacy cases freedom of the press is the only explicit constitutional right in the picture.
134. Simitis, 135 U Pa L Rev at 731 (cited in note 93).
135. There are endless varieties of these kinds of weak and privacy-destroying nexus arguments. To give just one example from a well-known case, Judge Richard Posner upheld on First Amendment grounds the reporting about private facts about an ordinary citizen (as summarized by Posner, "his heavy drinking, his unstable unemployment, his adultery, his irresponsible and neglectful behavior toward his wife and children") using the following argument in part: "Reporting the true facts about real people is necessary to 'obviate any impression that the [general social] problems raised in the [reporting] are remote or hypothetical.'" Haynes v Alfred A. Knopf, Inc., 8 F3d 1222, 1233 (7th Cir 1993). Obviously, if personal and embarrassing private facts (here, from thirty years previously) can be published simply because they establish that some general social problem is not remote or hypothetical, no one with "problems" has any protection from media disclosure. See also text accompanying note 128, discussing the way that the Restatement (Second) of Torts limits the privacy protections for "involuntary public figures."
136. See Geoffrey R. Stone, Louis M. Seidman, Cass R. Sunstein, and Mark V. Tushnet, Constitutional Law 1075 (4th ed 2001).
137. Litigation of a privacy claim, of course, presents a similar problem. See Harry J. Kalven, Jr., Privacy in Tort Law - Were Warren and Brandeis Wrong? 31 L & Contemp Probs 326, 328 (1966). However, establishing a privacy right would presumably deter publication to some extent.
138. Cf. Lee Bollinger, Images of a Free Press 133-45 (1991) (arguing that members of a democratic society, aware of their own "deficiencies," may use public regulation to improve "the quality of public discussion"); Geoffrey R. Stone, Imagining a Free Press, 90 Mich L Rev 1246, 1262-63 (1992) (arguing for "some limit" on what the press reports about political candidates, "designed not only to respect [their] legitimate privacy interests . . . , but also to reflect our right, as a society, to decide that some matters simply should not play a significant role in our political process" because "the information has a greater potential to distract and distort than to inform our better judgment"); Rosen, The Unwanted Gaze at 143 (cited in note 93) ("knowing everything about someone's private life inevitably distracts us from making reliable judgments about his or her character and public achievements").
139. Cf. Lee Bollinger, Images of a Free Press 133-45 (1991) (arguing that members of a democratic society, aware of their own "deficiencies," may use public regulation to improve "the quality of public discussion"); Geoffrey R. Stone, Imagining a Free Press, 90 Mich L Rev 1246, 1262-63 (1992) (arguing for "some limit" on what the press reports about political candidates, "designed not only to respect [their] legitimate privacy interests . . . , but also to reflect our right, as a society, to decide that some matters simply should not play a significant role in our political process" because "the information has a greater potential to distract and distort than to inform our better judgment"); Rosen, The Unwanted Gaze at 143 (cited in note 93) ("knowing everything about someone's private life inevitably distracts us from making reliable judgments about his or her character and public achievements").
140. Cf. Lee Bollinger, Images of a Free Press 133-45 (1991) (arguing that members of a democratic society, aware of their own "deficiencies," may use public regulation to improve "the quality of public discussion"); Geoffrey R. Stone, Imagining a Free Press, 90 Mich L Rev 1246, 1262-63 (1992) (arguing for "some limit" on what the press reports about political candidates, "designed not only to respect [their] legitimate privacy interests . . . , but also to reflect our right, as a society, to decide that some matters simply should not play a significant role in our political process" because "the information has a greater potential to distract and distort than to inform our better judgment"); Rosen, The Unwanted Gaze at 143 (cited in note 93) ("knowing everything about someone's private life inevitably distracts us from making reliable judgments about his or her character and public achievements").
141. 121 S Ct at 1764, and text accompany notes 57-59.
142. See, e.g., Marc A. Franklin and Robert L. Rabin, Tort Law and Alternatives: Cases and Materials 1098-1215 (2001); Turkington and Allen, Privacy Law (cited in note 93).
143. See, e.g., Marc A. Franklin and Robert L. Rabin, Tort Law and Alternatives: Cases and Materials 1098-1215 (2001); Turkington and Allen, Privacy Law (cited in note 93).
144. Restatement (Second) of Torts, § 652D (1977) ("Special Note on Relation of § 652D to the First Amendment of the Constitution").
145. 121 S Ct at 1768 (Breyer concurring) (emphasis added).
146. See text accompanying note 67.
147. As an element of the tort of "Publicity Given to Private Life," § 652D of the Restatement (Second) of Torts requires that the disclosure of a private fact be "highly offensive." See note 86. This is an incomplete measure. Even where a disclosure about intimate details of someone's life is not "highly offensive," protection may be justified. Consider a touching and tasteful story and photograph about a terminally ill teenager, published without his family's consent, or simply the publishing of ordinary personal details about a child. These may not be "highly offensive," but that should not end the inquiry. See also Rosen, The Unwanted Gaze at 50 (cited in note 93) ("In an age that is beyond embarrassment, it's rarely clear what a 'reasonable person' would find highly offensive."). The Restatement also states that the tort cannot be established if the matter publicized is of "legitimate concern to the public." The word "legitimate" is in effect a placeholder, for it operates here essentially as a conclusion that the public concern is appropriate - a judgment that, as I indicate in the text, reflects a range of factors and normative trade-offs, including not only the substantiality of the public concern but also the degree to which privacy is invaded.
148. 491 US 524 (1989).
149. See note 86.
150. Sipple v Chronicle Publishing Co., 201 Cal Rptr 665, 670 (Cal App 1st 1984).
151. For a different view, see Rosen, The Unwanted Gaze at 48 (cited in note 93). Rosen describes "the brutal outing of Oliver Sipple" and recognizes the "psychological distress" it caused (Sipple eventually committed suicide), but concludes: "[D]espite the tragic personal consequences that often result from the disclosure of true but embarrassing private facts, it's appropriate, in a country that takes the First Amendment seriously, that invasion of privacy suits against the press rarely succeed."
152. Dun and Bradstreet, Inc. v Greenmoss Builders, 472 US 749, 776 (1985); New York Times Co. v Sullivan, 376 US at 271-72.
153. 121 S Ct at 1765.
154. See Post, The Social Foundations of Privacy at 74-85 (cited in note 52); Geoffrey R. Stone, 90 Mich L Rev at 1262-63 (cited in note 120); Owen M. Fiss, Do Public Officials Have a Right to Privacy? in Dieter Simon and Manfred Weiss, eds, Zur Autonmie des Individuums: Liber Amicorum Spiros Simitis 91-98 (2001). For example, Professor Post writes: "The claims of public officials to a 'private' information preserve are simply overridden by the more general demands of the public for political accountability. . . . Because American law views the public, in its role as the electorate, as ultimately responsible for political decisions, the public is presumptively entitled to all information that is necessary for informed governance." Id at 76, 78.
155. See Post, The Social Foundations of Privacy at 74-85 (cited in note 52); Geoffrey R. Stone, 90 Mich L Rev at 1262-63 (cited in note 120); Owen M. Fiss, Do Public Officials Have a Right to Privacy? in Dieter Simon and Manfred Weiss, eds, Zur Autonmie des Individuums: Liber Amicorum Spiros Simitis 91-98 (2001). For example, Professor Post writes: "The claims of public officials to a 'private' information preserve are simply overridden by the more general demands of the public for political accountability. . . . Because American law views the public, in its role as the electorate, as ultimately responsible for political decisions, the public is presumptively entitled to all information that is necessary for informed governance." Id at 76, 78.
156. See Post, The Social Foundations of Privacy at 74-85 (cited in note 52); Geoffrey R. Stone, 90 Mich L Rev at 1262-63 (cited in note 120); Owen M. Fiss, Do Public Officials Have a Right to Privacy? in Dieter Simon and Manfred Weiss, eds, Zur Autonmie des Individuums: Liber Amicorum Spiros Simitis 91-98 (2001). For example, Professor Post writes: "The claims of public officials to a 'private' information preserve are simply overridden by the more general demands of the public for political accountability. . . . Because American law views the public, in its role as the electorate, as ultimately responsible for political decisions, the public is presumptively entitled to all information that is necessary for informed governance." Id at 76, 78.
157. 121 S Ct at 1764 n 19. See also Wilson v Layne, 526 US 603 (1999) (Fourth Amendment violated by media "ride-along" to accompany police during attempted execution of arrest warrant in a person's home).
158. See, e.g., Fiss, Do Public Officials Have a Right to Privacy? at 94 (cited in note 133).
159. Breyer, Our Democratic Constitution (cited in note 89).
160. "Public figures" from the entertainment world present somewhat different issues because such figures are typically less connected than public officials to the process of public deliberation and democratic self-government. Matters of public significance that might justify media publicity may therefore be less clearly involved. On the other hand, entertainment figures often utilize publicity about their private lives (including their sexual partners) to enhance their public image, so the interest in the privacy of personal facts may sometimes be less apparent. Nevertheless, in my judgment, there should still be protectable zones of privacy that the media may not invade - for example, publishing intrusively (if lawfully) secured photographs of entertainment figures with their children.
161. 2 All ER 408 (CA 1984).
162. Sir John Donaldson added: "The media . . . are an essential foundation of any democracy. In exposing crime, anti-social behavior and hypocrisy and in campaigning for reform and propagating the views of minorities, they perform an invaluable function. However, they are peculiarly vulnerable to the error of confusing the public interest with their own interest. . . . In the present case, pending a trial, it is impossible to see what public interest would be served by publishing the contents of the tapes which would not equally be served by giving them to the police or to the Jockey Club. Any wider publication could only serve the interests of the Daily Mirror." Id at 413.
163. Grundgesetz (Basic Law), Art 2. The English translations of the German materials discussed here are taken from Paul Gewirtz and Jacob Katz Cogan, Global Constitutionalism: Privacy, Proportionality, The Political Case (2001) (hereafter cited as Global Constitutionalism). Grundgesetz (Basic Law), Art 2, appears in Global Constitutionalism at II-27.
164. Grundgesetz (Basic Law), Art 2. The English translations of the German materials discussed here are taken from Paul Gewirtz and Jacob Katz Cogan, Global Constitutionalism: Privacy, Proportionality, The Political Case (2001) (hereafter cited as Global Constitutionalism). Grundgesetz (Basic Law), Art 2, appears in Global Constitutionalism at II-27.
165. Grundgesetz (Basic Law), Art 2. The English translations of the German materials discussed here are taken from Paul Gewirtz and Jacob Katz Cogan, Global Constitutionalism: Privacy, Proportionality, The Political Case (2001) (hereafter cited as Global Constitutionalism). Grundgesetz (Basic Law), Art 2, appears in Global Constitutionalism at II-27.
166. Grundgesetz (Basic Law), Art 1, in Global Constitutionalism at II-27.
167. Census Act Case, BVerfGE, 1 (1983), in Global Constitutionalism at I-3.
168. Id at I-4. The right is understood as not only contributing to an individual's personal development but as also contributing to "the common good" because informational self-determination fosters important elements of a "free democratic community" such as "communication" and "participation." Id.
169. Id.
170. See Part IV (discussing proportionality).
171. On the Limits Placed on the Press by the Personality Right, BGHZ 73, 120 (1978), in Global Constitutionalism at II-25.
172. Id at II-30. As a general matter, the Court observed, "[t]he more the information is private in character and the more it involves personal interests in keeping it secret and the more it involves personal harm, the greater the 'public value' will have to be if the press wants to disregard the person's wish in keeping it [private]." Id at 11-31. Note the similarity to Justice Breyer's balancing approach in Bartnicki and his conclusion there that "the speakers' legitimate privacy expectations are unusually low, and the public interest in defeating those expectations unusually high." 121 S Ct at 1768.
173. Global Constitutionalism at II-27. The Court, in a crucial conceptualization, observed that the taped conversation "addressed very personal concerns, even though these were still related to their public occupations." Id at II-26 (emphasis added).
174. Princess Caroline of Monaco Case, BVerfGE 101, 361 (1999), in Global Constitutionalism at II-33.
175. See Rajagopal v State of Tamil Nadu, 6 S C C 632, 648 (1994).
176. Id at 648, 650.
177. Aubry v Editions Vice-Versa Inc., 1 S C R 591 (1998).
178. Id at 615, 616.
179. Id at 617.
180. Id at 617-18.
181. See Turner Broadcasting System, Inc. v Federal Communications Commission, 520 US 180, 225-29 (1997) (Breyer concurring in part); Nixon v Shrink Missouri Government PAC, 528 US 377, 399-405 (2000) (Breyer concurring); United States v Playboy Entertainment Group, Inc., 529 US 803, 835-47 (2000) (Breyer dissenting); Bartnicki v Vopper, 121 S Ct 1753, 1766 (2001) (Breyer concurring); United States v United Foods, Inc., 533 US 405, 450-59 (2001) (Breyer dissenting).
182. Breyer, Our Democratic Constitution (cited in note 89).
183. Bartnicki v Vopper, 121 S Ct at 1766.
184. Turner Broadcasting System, Inc. v Federal Communications Commission, 520 US at 227.
185. Breyer, Our Democratic Constitution at 6 (cited in note 89).
186. Id.
187. Id.
188. Nixon v Shrink Missouri Government PAC, 528 US at 401.
189. Turner Broadcasting System, Inc. v Federal Communications Commission, 520 US at 227 (citation omitted).
190. Id.
191. Nixon v Shrink Missouri Government PAC, 528 US at 402.
192. Bartnicki v Vopper, 121 S Ct at 1766.
193. Id at 400.
194. 121 S Ct at 1766.
195. Id.
196. Breyer, Our Democratic Constitution at 10 (cited in note 89).
197. United States v United Foods, Inc., 121 S Ct at 2346 (2001).
198. As Jeffrey Rosen has noted in a recent article, Justice Breyer "is certainly the first Supreme Court justice to embrace this view of the First Amendment wholeheartedly, and to apply it consistently across a variety of cases." Jeffrey Rosen, Modest Proposal: Stephen Breyer Restrains Himself, The New Republic (Jan 14, 2002), 21, 24. Academic writing that has explored somewhat similar ideas in recent years include Fiss, Liberalism Divided (cited in note 96); Fiss, The Irony of Free Speech (cited in note 96); Sunstein, Democracy and the Problem of Free Speech (cited in note 111); and Post, Constitutional Domains (cited in note 52).
199. As Jeffrey Rosen has noted in a recent article, Justice Breyer "is certainly the first Supreme Court justice to embrace this view of the First Amendment wholeheartedly, and to apply it consistently across a variety of cases." Jeffrey Rosen, Modest Proposal: Stephen Breyer Restrains Himself, The New Republic (Jan 14, 2002), 21, 24. Academic writing that has explored somewhat similar ideas in recent years include Fiss, Liberalism Divided (cited in note 96); Fiss, The Irony of Free Speech (cited in note 96); Sunstein, Democracy and the Problem of Free Speech (cited in note 111); and Post, Constitutional Domains (cited in note 52).
200. As Jeffrey Rosen has noted in a recent article, Justice Breyer "is certainly the first Supreme Court justice to embrace this view of the First Amendment wholeheartedly, and to apply it consistently across a variety of cases." Jeffrey Rosen, Modest Proposal: Stephen Breyer Restrains Himself, The New Republic (Jan 14, 2002), 21, 24. Academic writing that has explored somewhat similar ideas in recent years include Fiss, Liberalism Divided (cited in note 96); Fiss, The Irony of Free Speech (cited in note 96); Sunstein, Democracy and the Problem of Free Speech (cited in note 111); and Post, Constitutional Domains (cited in note 52).
201. As Jeffrey Rosen has noted in a recent article, Justice Breyer "is certainly the first Supreme Court justice to embrace this view of the First Amendment wholeheartedly, and to apply it consistently across a variety of cases." Jeffrey Rosen, Modest Proposal: Stephen Breyer Restrains Himself, The New Republic (Jan 14, 2002), 21, 24. Academic writing that has explored somewhat similar ideas in recent years include Fiss, Liberalism Divided (cited in note 96); Fiss, The Irony of Free Speech (cited in note 96); Sunstein, Democracy and the Problem of Free Speech (cited in note 111); and Post, Constitutional Domains (cited in note 52).
202. As Jeffrey Rosen has noted in a recent article, Justice Breyer "is certainly the first Supreme Court justice to embrace this view of the First Amendment wholeheartedly, and to apply it consistently across a variety of cases." Jeffrey Rosen, Modest Proposal: Stephen Breyer Restrains Himself, The New Republic (Jan 14, 2002), 21, 24. Academic writing that has explored somewhat similar ideas in recent years include Fiss, Liberalism Divided (cited in note 96); Fiss, The Irony of Free Speech (cited in note 96); Sunstein, Democracy and the Problem of Free Speech (cited in note 111); and Post, Constitutional Domains (cited in note 52).
203. Nixon v Shrink Missouri Government PAC, 528 US at 400.
204. Turner Broadcasting System, Inc. v Federal Communications Commission, 520 US at 225.
205. 121 S Ct at 1766-67.
206. United States v United Foods, Inc., 121 S Ct at 2346.
207. United States v Playboy Entertainment Group, Inc., 529 US at 835.
208. Breyer, Our Democratic Constitution at 6-7 (cited in note 89).
209. Id at 7.
210. Nixon v Shrink Missouri Government PAC, 528 US at 400; United States v Playboy Entertainment Group, Inc., 529 US at 841.
211. 121 S Ct at 1766.
212. An analysis of the concept of "proportionality" as used by other countries' supreme courts and constitutional courts is beyond the scope of this article. For a fuller discussion, see Paul Gewirtz and Jacob Katz Cogan, Global Constitutionalism at IV-1-98 (cited in note 140). Examples of cases from other jurisdictions discussing and applying the proportionality concept include: Lebach Case, BVerfGE 35, 202 (1975) (Constitutional Court of Germany); Cannabis Case, BVerfGE 90, 145 (1994) (Constitutional Court of Germany); Reiten im Walde Case, BVerfGE 80, 137 (1989) (Constitutional Court of Germany); R. v Oakes, 1 S C R 103 (1986) (Supreme Court of Canada); Dagenais v CBC, 3 S C R 835 (1994) (Supreme Court of Canada); Thomson Newspaper v Canada (A.G.), 1 S C R 877 (1998) (Supreme Court of Canada); Decision Dated April 26, 1995 (K.11/94) (Constitutional Court of Poland), in Constitutional Tribunal, a Selection of the Polish Constitutional Tribunal's Jurisprudence from 1986 to 1999, at 153-58 (1999); United Mizrahi Bank Ltd. v Migdal Village, 49 (4) P D 221 (1995) (Supreme Court of Israel). See also P. van Duk and G. J. H. van Hoof, Theory and Practice of the European Convention on Human Rights 80-82 (3d ed 1998); Walter van Gerven, The Effect of Proportionality on the Actions of Member States of the European Community: National Viewpoints from Continental Europe, in Evelyn Ellis, ed, The Principle of Proportionality in the Laws of Europe: A Comparative Study (1999).
213. An analysis of the concept of "proportionality" as used by other countries' supreme courts and constitutional courts is beyond the scope of this article. For a fuller discussion, see Paul Gewirtz and Jacob Katz Cogan, Global Constitutionalism at IV-1-98 (cited in note 140). Examples of cases from other jurisdictions discussing and applying the proportionality concept include: Lebach Case, BVerfGE 35, 202 (1975) (Constitutional Court of Germany); Cannabis Case, BVerfGE 90, 145 (1994) (Constitutional Court of Germany); Reiten im Walde Case, BVerfGE 80, 137 (1989) (Constitutional Court of Germany); R. v Oakes, 1 S C R 103 (1986) (Supreme Court of Canada); Dagenais v CBC, 3 S C R 835 (1994) (Supreme Court of Canada); Thomson Newspaper v Canada (A.G.), 1 S C R 877 (1998) (Supreme Court of Canada); Decision Dated April 26, 1995 (K.11/94) (Constitutional Court of Poland), in Constitutional Tribunal, a Selection of the Polish Constitutional Tribunal's Jurisprudence from 1986 to 1999, at 153-58 (1999); United Mizrahi Bank Ltd. v Migdal Village, 49 (4) P D 221 (1995) (Supreme Court of Israel). See also P. van Duk and G. J. H. van Hoof, Theory and Practice of the European Convention on Human Rights 80-82 (3d ed 1998); Walter van Gerven, The Effect of Proportionality on the Actions of Member States of the European Community: National Viewpoints from Continental Europe, in Evelyn Ellis, ed, The Principle of Proportionality in the Laws of Europe: A Comparative Study (1999).
214. An analysis of the concept of "proportionality" as used by other countries' supreme courts and constitutional courts is beyond the scope of this article. For a fuller discussion, see Paul Gewirtz and Jacob Katz Cogan, Global Constitutionalism at IV-1-98 (cited in note 140). Examples of cases from other jurisdictions discussing and applying the proportionality concept include: Lebach Case, BVerfGE 35, 202 (1975) (Constitutional Court of Germany); Cannabis Case, BVerfGE 90, 145 (1994) (Constitutional Court of Germany); Reiten im Walde Case, BVerfGE 80, 137 (1989) (Constitutional Court of Germany); R. v Oakes, 1 S C R 103 (1986) (Supreme Court of Canada); Dagenais v CBC, 3 S C R 835 (1994) (Supreme Court of Canada); Thomson Newspaper v Canada (A.G.), 1 S C R 877 (1998) (Supreme Court of Canada); Decision Dated April 26, 1995 (K.11/94) (Constitutional Court of Poland), in Constitutional Tribunal, a Selection of the Polish Constitutional Tribunal's Jurisprudence from 1986 to 1999, at 153-58 (1999); United Mizrahi Bank Ltd. v Migdal Village, 49 (4) P D 221 (1995) (Supreme Court of Israel). See also P. van Duk and G. J. H. van Hoof, Theory and Practice of the European Convention on Human Rights 80-82 (3d ed 1998); Walter van Gerven, The Effect of Proportionality on the Actions of Member States of the European Community: National Viewpoints from Continental Europe, in Evelyn Ellis, ed, The Principle of Proportionality in the Laws of Europe: A Comparative Study (1999).
215. An analysis of the concept of "proportionality" as used by other countries' supreme courts and constitutional courts is beyond the scope of this article. For a fuller discussion, see Paul Gewirtz and Jacob Katz Cogan, Global Constitutionalism at IV-1-98 (cited in note 140). Examples of cases from other jurisdictions discussing and applying the proportionality concept include: Lebach Case, BVerfGE 35, 202 (1975) (Constitutional Court of Germany); Cannabis Case, BVerfGE 90, 145 (1994) (Constitutional Court of Germany); Reiten im Walde Case, BVerfGE 80, 137 (1989) (Constitutional Court of Germany); R. v Oakes, 1 S C R 103 (1986) (Supreme Court of Canada); Dagenais v CBC, 3 S C R 835 (1994) (Supreme Court of Canada); Thomson Newspaper v Canada (A.G.), 1 S C R 877 (1998) (Supreme Court of Canada); Decision Dated April 26, 1995 (K.11/94) (Constitutional Court of Poland), in Constitutional Tribunal, a Selection of the Polish Constitutional Tribunal's Jurisprudence from 1986 to 1999, at 153-58 (1999); United Mizrahi Bank Ltd. v Migdal Village, 49 (4) P D 221 (1995) (Supreme Court of Israel). See also P. van Duk and G. J. H. van Hoof, Theory and Practice of the European Convention on Human Rights 80-82 (3d ed 1998); Walter van Gerven, The Effect of Proportionality on the Actions of Member States of the European Community: National Viewpoints from Continental Europe, in Evelyn Ellis, ed, The Principle of Proportionality in the Laws of Europe: A Comparative Study (1999).
216. In addition to the "proportionality" concept, Justice Breyer has referred to other countries' constitutional law in other respects. See, e.g., Printz v United States, 521 US 898, 976-77 (1997) (Breyer dissenting) (discussing other countries' approach to federalism); Nixon v Shrink Missouri Government PAC, 528 US 377, 403 (2000) (Breyer concurring) (discussing other countries' approach to campaign finance); Breyer, Our Democratic Constitution at 7 (cited in note 89) (referring to same); Knight v Florida, 528 US 990 (1999) (Breyer dissenting from denial of certiorari) (discussing other countries' treatment of delays in capital punishment executions). In speeches he has also spoken approvingly of the fact that "[j]udges who enforce the law as well as those who write it increasingly turn to the experience of other nations when deciding difficult open questions of substantive law, particularly human rights law. . . ." He notes that U.S. courts "less frequently refer to judicial opinions from abroad" than other courts do, and has called upon American lawyers and academics to "themselves become familiar with foreign material relevant to particular legal disciplines and facilitate the judicial use of that material." Stephen Breyer, Dinner Keynote Speech, International Symposium on Democracy and the Rule of Law in a Changing World Order, New York University Law School, March 9, 2000 (copy on file with author).
217. In addition to the "proportionality" concept, Justice Breyer has referred to other countries' constitutional law in other respects. See, e.g., Printz v United States, 521 US 898, 976-77 (1997) (Breyer dissenting) (discussing other countries' approach to federalism); Nixon v Shrink Missouri Government PAC, 528 US 377, 403 (2000) (Breyer concurring) (discussing other countries' approach to campaign finance); Breyer, Our Democratic Constitution at 7 (cited in note 89) (referring to same); Knight v Florida, 528 US 990 (1999) (Breyer dissenting from denial of certiorari) (discussing other countries' treatment of delays in capital punishment executions). In speeches he has also spoken approvingly of the fact that "[j]udges who enforce the law as well as those who write it increasingly turn to the experience of other nations when deciding difficult open questions of substantive law, particularly human rights law. . . ." He notes that U.S. courts "less frequently refer to judicial opinions from abroad" than other courts do, and has called upon American lawyers and academics to "themselves become familiar with foreign material relevant to particular legal disciplines and facilitate the judicial use of that material." Stephen Breyer, Dinner Keynote Speech, International Symposium on Democracy and the Rule of Law in a Changing World Order, New York University Law School, March 9, 2000 (copy on file with author).
218. 528 US at 402, 403 (citations omitted).
219. 529 US at 841. Citing his own separate opinion in Bartnicki, Justice Breyer also invoked the idea of proportionality in last term's dissent in United States v United Foods, Inc., a commercial speech case: Several features of the program indicate that its speech-related aspects, i.e., its compelled monetary contributions, are necessary and proportionate to the legitimate promotional goals that it seeks. . . . [At] the same time, those features of the program that led [dissenters in an earlier case] to find its program disproportionately restrictive are absent here. . . . In consequence, whatever harm the program may cause First Amendment interests is proportionate. 533 US at 457.
220. Breyer, Our Democratic Constitution at 7 (cited in note 89).
221. See Rosen, Modest Proposal at 25 (cited in note 173).
222. Breyer, Our Democratic Constitution at 22 (cited in note 89).
223. See, e.g., Richard H. Fallon, Jr., The Supreme Court, 1996 Term-Foreword: Implementing the Constitution, 111 Harv L Rev 54 (1997); Kathleen M. Sullivan, The Supreme Court, 1991 Term-Foreword: The Justices of Rules and Standards, 106 Harv L Rev 22 (1992); T. Alexander Aleinikoff, Constitutional Law in the Age of Balancing, 96 Yale L J 943 (1987); Stephen E. Gottlieb, Compelling Governmental Interests: An Essential but Unanalyzed Term in Constitutional Adjudication, 68 BU L Rev 917 (1988); Paul Kahn, The Court, the Community and the Judicial Balance: The Jurisprudence of Justice Powell, 97 Yale LJ 1 (1987); Charles Fried, Two Concepts of Interests: Some Reflections on the Supreme Court's Balancing Test, 76 Harv L Rev 755 (1963).
224. See, e.g., Richard H. Fallon, Jr., The Supreme Court, 1996 Term-Foreword: Implementing the Constitution, 111 Harv L Rev 54 (1997); Kathleen M. Sullivan, The Supreme Court, 1991 Term-Foreword: The Justices of Rules and Standards, 106 Harv L Rev 22 (1992); T. Alexander Aleinikoff, Constitutional Law in the Age of Balancing, 96 Yale L J 943 (1987); Stephen E. Gottlieb, Compelling Governmental Interests: An Essential but Unanalyzed Term in Constitutional Adjudication, 68 BU L Rev 917 (1988); Paul Kahn, The Court, the Community and the Judicial Balance: The Jurisprudence of Justice Powell, 97 Yale LJ 1 (1987); Charles Fried, Two Concepts of Interests: Some Reflections on the Supreme Court's Balancing Test, 76 Harv L Rev 755 (1963).
225. See, e.g., Richard H. Fallon, Jr., The Supreme Court, 1996 Term-Foreword: Implementing the Constitution, 111 Harv L Rev 54 (1997); Kathleen M. Sullivan, The Supreme Court, 1991 Term-Foreword: The Justices of Rules and Standards, 106 Harv L Rev 22 (1992); T. Alexander Aleinikoff, Constitutional Law in the Age of Balancing, 96 Yale L J 943 (1987); Stephen E. Gottlieb, Compelling Governmental Interests: An Essential but Unanalyzed Term in Constitutional Adjudication, 68 BU L Rev 917 (1988); Paul Kahn, The Court, the Community and the Judicial Balance: The Jurisprudence of Justice Powell, 97 Yale LJ 1 (1987); Charles Fried, Two Concepts of Interests: Some Reflections on the Supreme Court's Balancing Test, 76 Harv L Rev 755 (1963).
226. See, e.g., Richard H. Fallon, Jr., The Supreme Court, 1996 Term-Foreword: Implementing the Constitution, 111 Harv L Rev 54 (1997); Kathleen M. Sullivan, The Supreme Court, 1991 Term-Foreword: The Justices of Rules and Standards, 106 Harv L Rev 22 (1992); T. Alexander Aleinikoff, Constitutional Law in the Age of Balancing, 96 Yale L J 943 (1987); Stephen E. Gottlieb, Compelling Governmental Interests: An Essential but Unanalyzed Term in Constitutional Adjudication, 68 BU L Rev 917 (1988); Paul Kahn, The Court, the Community and the Judicial Balance: The Jurisprudence of Justice Powell, 97 Yale LJ 1 (1987); Charles Fried, Two Concepts of Interests: Some Reflections on the Supreme Court's Balancing Test, 76 Harv L Rev 755 (1963).
227. See, e.g., Richard H. Fallon, Jr., The Supreme Court, 1996 Term-Foreword: Implementing the Constitution, 111 Harv L Rev 54 (1997); Kathleen M. Sullivan, The Supreme Court, 1991 Term-Foreword: The Justices of Rules and Standards, 106 Harv L Rev 22 (1992); T. Alexander Aleinikoff, Constitutional Law in the Age of Balancing, 96 Yale L J 943 (1987); Stephen E. Gottlieb, Compelling Governmental Interests: An Essential but Unanalyzed Term in Constitutional Adjudication, 68 BU L Rev 917 (1988); Paul Kahn, The Court, the Community and the Judicial Balance: The Jurisprudence of Justice Powell, 97 Yale LJ 1 (1987); Charles Fried, Two Concepts of Interests: Some Reflections on the Supreme Court's Balancing Test, 76 Harv L Rev 755 (1963).
228. See, e.g., Richard H. Fallon, Jr., The Supreme Court, 1996 Term-Foreword: Implementing the Constitution, 111 Harv L Rev 54 (1997); Kathleen M. Sullivan, The Supreme Court, 1991 Term-Foreword: The Justices of Rules and Standards, 106 Harv L Rev 22 (1992); T. Alexander Aleinikoff, Constitutional Law in the Age of Balancing, 96 Yale L J 943 (1987); Stephen E. Gottlieb, Compelling Governmental Interests: An Essential but Unanalyzed Term in Constitutional Adjudication, 68 BU L Rev 917 (1988); Paul Kahn, The Court, the Community and the Judicial Balance: The Jurisprudence of Justice Powell, 97 Yale LJ 1 (1987); Charles Fried, Two Concepts of Interests: Some Reflections on the Supreme Court's Balancing Test, 76 Harv L Rev 755 (1963).