Autonomy and informational privacy, or gossip: The central meaning of the first amendment

Social Philosophy and Policy

Volumn 21, Issue 2, 2004, Pages

  Baker, C Edwin ^a  

^a UNIVERSITY OF PENNSYLVANIA   (United States)

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EID: 3142653181     PISSN: 02650525     EISSN: None     Source Type: Journal    
DOI: 10.1017/S0265052504212092     Document Type: Review

References (207)

1. Samuel Warren and Louis Brandeis, "The Right to Privacy," Harvard Law Review 4 (1890): 193-220.
2. Larry Gross, Contested Closets (Minneapolis: University of Minnesota Press, 1993), dedication page.
3. Max Gluckman, "Gossip and Scandal," Current Anthropology 4, no. 3 (1963): 307-16, at 315.
4. Warren and Brandeis, supra note 1. This article has been described as "perhaps the most famous and certainly the most influential law review article ever written." Melville B. Nimmer, "The Right of Publicity," Law and Contemporary Problems 19 (1954): 202, 203.
5. Warren and Brandeis, supra note 1. This article has been described as "perhaps the most famous and certainly the most influential law review article ever written." Melville B. Nimmer, "The Right of Publicity," Law and Contemporary Problems 19 (1954): 202, 203.
6. C. Edwin Baker, Human Liberty and Freedom of Speech (Oxford: Oxford University Press, 1989); C. Edwin Baker, "Harm, Liberty, and Free Speech," Southern California Law Review 70 (1997): 979.
7. C. Edwin Baker, Human Liberty and Freedom of Speech (Oxford: Oxford University Press, 1989); C. Edwin Baker, "Harm, Liberty, and Free Speech," Southern California Law Review 70 (1997): 979.
8. Julie Cohen, "Examined Lives: Informational Privacy and the Subject As Object," Stanford Law Review 52 (2000): 1373-1438
9. Cohen v. Cowles Media Co., 501 U.S. 663 (1991) (promissory estoppel can apply to newspaper that promised confidentiality).
10. Seattle Times Co, v. Rhinehart, 467 U.S. 20 (1984) (newspaper can be ordered not to publish information obtained through discovery).
11. Bartnicki v. Vopper, 532 U.S. 514 (2001).
12. The Court relied upon concerns about a child's participation in the making of child porn and with the availability of the permanent record of the child's participation to justify the law in New York v. Ferber, 458 U.S. 747 (1982), harms that distinguish this case from Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002) (striking down prohibition of computer-created child porn in which no actual child was used).
13. Barnes v. Glenn Theatre, Inc., 501 U.S. 560 (1991); City of Erie v. Pap's AM, 529 U.S. 277 (2000) (upholding bans on public nudity as applied to dancers in dance halls or adult establishments). Both cases generated strong dissents. The dissenters distinguished public nudity before unconsenting adults, who might be considered to be viscerally assaulted by the nudity, and before exclusively consenting parties such as in a theater, where the state interest seems directed specifically at stopping expressive communication. (Elsewhere, I have suggested that in an advocacy as opposed to an entertainment context, nudity should sometimes be protected even in relation to those who are offended: Baker, Human Liberty, supra note 5, at 135, 173-78, 306 n.27, 318 n.29; and C. Edwin Baker, "The Evening Hours During Pacifica Standard Time," Villanova Sports and Entertainment Law Journal 3 [1996]: 45.) The plurality in Pap's AM. attempted to meet the objection that the law aimed at suppressing communication by arguing that, instead, the state interest was related to preventing "secondary effects," that is, effects not dependent on whether anyone received the message and not involving any condemnation of the communicative exposure. The purported secondary effect would occur if people who may not even have received the communication come to the area and engage in activities that the state properly restricts, such as prostitution. Previously, purported secondary effects have only justified "zoning" the expression in a manner hoped to reduce these bad effects, which makes sense of the fact that secondary effects cases are analyzed much like "time, place, or manner" cases. No case prior to Pap's A.M. used secondary effects analysis to entirely bar the expression, a point emphasized by the dissent. Arguably, the plurality in Pap's A.M. only makes doctrinal sense if the complete ban on intentionally appearing in public in a "state of nudity" was not a complete ban on the particular expression. The plurality argues this is so. The dancer could make the same communication, the plurality implied, because she could be almost nude, a view ridiculed by the dissent, which claimed audiences distinguish dancing nude from dancing with "pasties and G-strings." The plurality seems overtly inconsistent with Cohen v. California., 403 U.S. 15 (1971), which emphasized not only that "the Constitution leaves matters of taste and style ... largely to the individual" but also that the First Amendment protects the important emotive function of using a particular word, "fuck." Cohen also noted that any bar on the word's use runs the danger of suppressing ideas.
14. Barnes v. Glenn Theatre, Inc., 501 U.S. 560 (1991); City of Erie v. Pap's AM, 529 U.S. 277 (2000) (upholding bans on public nudity as applied to dancers in dance halls or adult establishments). Both cases generated strong dissents. The dissenters distinguished public nudity before unconsenting adults, who might be considered to be viscerally assaulted by the nudity, and before exclusively consenting parties such as in a theater, where the state interest seems directed specifically at stopping expressive communication. (Elsewhere, I have suggested that in an advocacy as opposed to an entertainment context, nudity should sometimes be protected even in relation to those who are offended: Baker, Human Liberty, supra note 5, at 135, 173-78, 306 n.27, 318 n.29; and C. Edwin Baker, "The Evening Hours During Pacifica Standard Time," Villanova Sports and Entertainment Law Journal 3 [1996]: 45.) The plurality in Pap's AM. attempted to meet the objection that the law aimed at suppressing communication by arguing that, instead, the state interest was related to preventing "secondary effects," that is, effects not dependent on whether anyone received the message and not involving any condemnation of the communicative exposure. The purported secondary effect would occur if people who may not even have received the communication come to the area and engage in activities that the state properly restricts, such as prostitution. Previously, purported secondary effects have only justified "zoning" the expression in a manner hoped to reduce these bad effects, which makes sense of the fact that secondary effects cases are analyzed much like "time, place, or manner" cases. No case prior to Pap's A.M. used secondary effects analysis to entirely bar the expression, a point emphasized by the dissent. Arguably, the plurality in Pap's A.M. only makes doctrinal sense if the complete ban on intentionally appearing in public in a "state of nudity" was not a complete ban on the particular expression. The plurality argues this is so. The dancer could make the same communication, the plurality implied, because she could be almost nude, a view ridiculed by the dissent, which claimed audiences distinguish dancing nude from dancing with "pasties and G-strings." The plurality seems overtly inconsistent with Cohen v. California., 403 U.S. 15 (1971), which emphasized not only that "the Constitution leaves matters of taste and style ... largely to the individual" but also that the First Amendment protects the important emotive function of using a particular word, "fuck." Cohen also noted that any bar on the word's use runs the danger of suppressing ideas.
15. Cf. Ralph Ellison, The Invisible Man (New York: Random House, 1952).
16. But cf. Anita L. Allen, "Coercing Privacy," William and Mary Law Review 40 (1999): 723-57, 740, 752-53.
17. Margaret Jane Radin, Contested Commodities (Cambridge, MA: Harvard University Press, 1996), 18-20.
18. Thomas Scanlon, "A Theory of Freedom of Expression," Philosophy & Public Affairs 1, no. 2 (1972): 204-26; David A. Strauss, "Persuasion, Autonomy, and Freedom of Expression," Columbia Law Review 91 (1991): 334-71; and Richard H. Fallon, Jr., "Two Senses of Autonomy," Stanford Law Review 46 (1994): 875-905.
19. Thomas Scanlon, "A Theory of Freedom of Expression," Philosophy & Public Affairs 1, no. 2 (1972): 204-26; David A. Strauss, "Persuasion, Autonomy, and Freedom of Expression," Columbia Law Review 91 (1991): 334-71; and Richard H. Fallon, Jr., "Two Senses of Autonomy," Stanford Law Review 46 (1994): 875-905.
20. Thomas Scanlon, "A Theory of Freedom of Expression," Philosophy & Public Affairs 1, no. 2 (1972): 204-26; David A. Strauss, "Persuasion, Autonomy, and Freedom of Expression," Columbia Law Review 91 (1991): 334-71; and Richard H. Fallon, Jr., "Two Senses of Autonomy," Stanford Law Review 46 (1994): 875-905.
21. Anita L. Allen, supra note 13; Julie Cohen, supra note 6.
22. This is similar to Habermas's claim that private autonomy and public autonomy are co-original. Jürgen Habermas, Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy, trans. William Regh (Cambridge, MA: MIT Press, 1996), 104, 121-22, 263, 314, and 454. Individual rights are created by the exercise of public autonomy (the liberty of the ancients), but the exercise of public autonomy requires autonomous individual rights holders. See infra note 145.
23. This is similar to Habermas's claim that private autonomy and public autonomy are co-original. Jürgen Habermas, Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy, trans. William Regh (Cambridge, MA: MIT Press, 1996), 104, 121-22, 263, 314, and 454. Individual rights are created by the exercise of public autonomy (the liberty of the ancients), but the exercise of public autonomy requires autonomous individual rights holders. See infra note 145.
24. Long a subject of science fiction, this need for privacy in order to develop as a full person was the theme of two recent popular Hollywood movies, The Truman Show (1998) and Ed TV (1999).
25. First Amendment doctrine recognizes this need for privacy, emphasizing the role that anonymity played in revolutionary pamphleteering and, more generally, its role in creating a willingness to engage in political activities. See NAACP v. Alabama ex rel Patterson, 357 U.S. 449 (1958) (First Amendment protects against state demand for disclosure of membership lists); Talley v. California, 362 U.S. 60 (1960) (ban on anonymous leafletting is unconstitutionally overbroad); Brown v. Socialist Workers 74 Campaign Committee, 459 U.S. 87 (1982) (Socialist Workers Party has right not to report the identity of campaign contributors); McIntyre v. Ohio Elections Commission, 514 U.S. 334 (1995) (person has right to distribute anonymous campaign literature). See generally Seth F. Kreimer, "Sunlight, Secrets, and Scarlet Letters: The Tension between Privacy and Disclosure in Constitutional Law," University of Pennsylvania Law Review 140 (1991): 1-147. Fifth Amendment limits on compelled disclosure might also be seen, in part, as protecting these interests.
26. See cases cited in note 19.
27. See Scanlon, Strauss, and Fallon articles, supra note 15.
28. Justice Potter Stewart, "Or of the Press," Hastings Law Journal 26 (1975): 631-37; Baker, Human Liberty, supra note 5, chap. 10.
29. Justice Potter Stewart, "Or of the Press," Hastings Law Journal 26 (1975): 631-37; Baker, Human Liberty, supra note 5, chap. 10.
30. See, e.g., Buckley v. Valeo, 424 U.S. 1 (1976) (upholding disclosure requirements).
31. John Rawls, A Theory of Justice (Cambridge, MA: Harvard University Press, 1971), 204.
32. See Baker, Human Liberty, supra note 5; Baker, "Harm," supra note 5.
33. See Baker, Human Liberty, supra note 5; Baker, "Harm," supra note 5.
34. In free speech literature, my distinction between meaningful and formal autonomy parallels Richard Fallon's distinction between "descriptive" and "ascriptive" autonomy. See Fallon, supra note 15. According to Fallon, in the past, First Amendment autonomy theorists have mostly ignored ascriptive autonomy in favor of descriptive autonomy, but that free speech doctrine ought to respond to both. Fallon observes that the two conceptions place sometimes conflicting demands on the legal order-and descriptive autonomy can lie on both sides of an issue. He then concludes that the proper approach balances all the autonomy claims (although when he does the balancing, it seems he usually favors the strongest claims made on behalf of descriptive autonomy). In my view, many scholars (including myself) whom Fallon characterizes as advancing negative liberty, descriptive autonomy claims were in fact offering ascriptive autonomy theories. See C. Edwin Baker, "Realizing Self-Realization: Corporate Political Expenditures and Redish's 'The Value of Free Speech'", University of Pennsylvania Law Review 130 (1982): 646-77 (criticizing Martin H. Redish for adopting a descriptive conception of autonomy). Although Fallon is right that both types of autonomy are important for law and policy, I provide a different account of their proper relationship. Namely, I propose that, rather than balance what are in effect apples and oranges, the law ought consistently to respect ascriptive (or formal) autonomy as a trump or side constraint in developing ways to promote descriptive (or meaningful) autonomy. I suggest that this approach is both more consistent with First Amendment law and more normatively defensible, although both points are disputed.
35. In free speech literature, my distinction between meaningful and formal autonomy parallels Richard Fallon's distinction between "descriptive" and "ascriptive" autonomy. See Fallon, supra note 15. According to Fallon, in the past, First Amendment autonomy theorists have mostly ignored ascriptive autonomy in favor of descriptive autonomy, but that free speech doctrine ought to respond to both. Fallon observes that the two conceptions place sometimes conflicting demands on the legal order-and descriptive autonomy can lie on both sides of an issue. He then concludes that the proper approach balances all the autonomy claims (although when he does the balancing, it seems he usually favors the strongest claims made on behalf of descriptive autonomy). In my view, many scholars (including myself) whom Fallon characterizes as advancing negative liberty, descriptive autonomy claims were in fact offering ascriptive autonomy theories. See C. Edwin Baker, "Realizing Self-Realization: Corporate Political Expenditures and Redish's 'The Value of Free Speech'", University of Pennsylvania Law Review 130 (1982): 646-77 (criticizing Martin H. Redish for adopting a descriptive conception of autonomy). Although Fallon is right that both types of autonomy are important for law and policy, I provide a different account of their proper relationship. Namely, I propose that, rather than balance what are in effect apples and oranges, the law ought consistently to respect ascriptive (or formal) autonomy as a trump or side constraint in developing ways to promote descriptive (or meaningful) autonomy. I suggest that this approach is both more consistent with First Amendment law and more normatively defensible, although both points are disputed.
36. C. Edwin Baker, "Foundations of the Possibility of Legitimate Law" (unpublished essay, 2003).
37. See H. L. A. Hart, Punishment and Responsibility: Essays in the Philosophy of Law (New York: Oxford University Press, 1968), 1-27; and Kent Greenawalt, "Punishment," in Joshua Dressier, Encyclopedia of Crime and Justice, 2d ed. (New York: Macmillan, 2002), 1282-94, at 1289.
38. See H. L. A. Hart, Punishment and Responsibility: Essays in the Philosophy of Law (New York: Oxford University Press, 1968), 1-27; and Kent Greenawalt, "Punishment," in Joshua Dressier, Encyclopedia of Crime and Justice, 2d ed. (New York: Macmillan, 2002), 1282-94, at 1289.
39. C. Edwin Baker, "Sandel on Rawls," University of Pennsylvania Law Review 133 (1985): 895-928.
40. See, e.g., Rainer Forst, Contexts of Justice: Political Philosophy beyond Liberalism and Communitarianism, trans. John M. M. Farrell (Berkeley: University of California Press, 2002).
41. The points merely asserted here and in the next two paragraphs are developed in Baker, "Harm," supra note 5.
42. Herbert v. Lando, 441 U.S. 153, 184 n.1 (1979) (Brennan, J., dissenting in part).
43. Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 585 (1980) (Brennan, J., concurring in the judgment).
44. Warren and Brandeis, supra, note 1, at 205. Lillian BeVier suggests that privacy is the equivalent of speech as a constitutive element of liberty. I find this to be a strange conception of liberty. It implies that liberty is not merely a power of choice about one's own action. Rather, it identifies liberty either with a state of affairs (i.e., the information is not known) or with power over other people's acts (i.e., they cannot speak what they know). This notion of liberty, however, may explain why, in her contribution to this volume, BeVier does not find copyright's restriction on people's speech choices in conflict with the First Amendment, a view that I find equally strange.
45. See Baker, Human Liberty, supra note 5.
46. For a differing view, see articles listed in note 15. Also Martin H. Redish, "The Value of Free Speech," University of Pennsylvania Law Review 130 (1982): 591-645.
47. Cf. Carlin Meyer, "Sex, Sin, and Women's Liberation: Against Porn-Suppression," Texas Law Review 72 (1994): 1097-1201.
48. 5 U.S.C. 552(a).
49. 5 U.S.C. 552. The Freedom of Information Act provides a right of access to much of the information maintained in federal agency records. The Privacy Act exempts from disclosure much information that would intrusively and arguably unnecessarily expose private information about individuals.
50. C. Edwin Baker, "Posner's Privacy Mystery and the Failure of Economic Analysis of Law," Georgia Law Review 12 (1978): 475-95.
51. But compare Lessig's observation concerning the need to determine whether the point of these amendments is to prevent intrusions, or to prevent insults to a dignity-based informational privacy, or substantively to limit government power, or, presumably, some combination of these goals. Lawrence Lessig, Code and Other Laws of Cyberspace (New York: Basic Books, 1999), 146-50.
52. NAACP v. Alabama ex rel Patterson, 357 U.S. 449 (1958); Brown v. Socialist Party, 459 U.S. 87 (1982); McIntyre v. Ohio Elections Commission, 514 U.S. 334 (1995).
53. NAACP v. Alabama ex rel Patterson, 357 U.S. 449 (1958); Brown v. Socialist Party, 459 U.S. 87 (1982); McIntyre v. Ohio Elections Commission, 514 U.S. 334 (1995).
54. NAACP v. Alabama ex rel Patterson, 357 U.S. 449 (1958); Brown v. Socialist Party, 459 U.S. 87 (1982); McIntyre v. Ohio Elections Commission, 514 U.S. 334 (1995).
55. Cf. Bowen v. Roy, 476 U.S. 693 (1986) (rejecting claim that a child receiving AFDC benefits had a religious free exercise claim to stop the federal government from requiring an identification number for receipt of benefits, but suggesting that the child might have a right not to use the number herself). In a demonstration at Stanford University in 1969, participants decided to give the movement's name in response to requests by the authorities that the demonstrators identify themselves. This tactic was neither an attempt to deceive nor a maneuver to hide (taking pictures was not discouraged) but a political statement of solidarity.
56. Cf. Salinger v. Random House, Inc., 811 F.2d 90 (2d Cir. 1987) (recognizing strong rights in respect to unpublished letters, relying on Harper & Row, Publishers, Inc. v. Nation Enterprises, 471 U.S. 539 [1985]), with 17 U.S.C. § 107 (as amended in 1992 to make fair use of unpublished materials more acceptable).
57. U.S. CONST., art. I, § 8 (Congress has power "to promote the progress of science and useful arts by securing for limited times to authors ... the exclusive right to their respective writings ..."). This "limited grant... is intended to motivate the creative activity of authors. ... The monopoly ... thus rewards the individual author in order to benefit the public." Harper & Row Publishers, Inc. v Nation Enterprises, 471 U.S. at 546 (1985) (quoting Sony Corporation of America v. Universal City Studios, Inc., 464 U.S. 417, 429, 477 [1984] [dissenting opinion]).
58. Pell v. Procunier, 417 U.S. 817 (1974); Saxbe v. Washington Post Co., 417 U.S. 843 (1974); Houchins v. KQED, Inc., 438 U.S. 1 (1978).
59. Globe Newspaper Co. v. Superior Court, 457 U.S. 596 (1982).
60. Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980).
61. See Frank I. Michelman, Brennan and Democracy (Princeton, NJ: Princeton University Press, 1999), 12-14. There is generally no reason to think that the typical market-oriented, corporate media entity composed of numerous persons expresses or represents the unified, autonomous views of individuals involved in the enterprise, individuals who lose no individual expressive rights merely because of some regulation of the collective entity. Still, this claim may be less true in the case of voluntary expressive associations organized around the participants' solidaristic aims, which is why the Supreme Court has treated their First Amendment claims more generously than those of commercial or market-oriented corporations. Cf. Austin v. Michigan State Chamber of Commerce, 494 U.S. 652 (1990) with Federal Election Commission v. Massachusetts Citizens for Life, Inc., 479 U.S. 238 (1986).
62. See Stewart, supra note 22; Vince Blasi, "The Checking Value in First Amendment Theory," American Bar Foundation Research Journal (1977): 521; and Baker, Human Liberty, supra note 5, chap. 10.
63. See Stewart, supra note 22; Vince Blasi, "The Checking Value in First Amendment Theory," American Bar Foundation Research Journal (1977): 521; and Baker, Human Liberty, supra note 5, chap. 10.
64. See Stewart, supra note 22; Vince Blasi, "The Checking Value in First Amendment Theory," American Bar Foundation Research Journal (1977): 521; and Baker, Human Liberty, supra note 5, chap. 10.
65. But see note 52. Justice Stewart's view that the press has greater speech rights (Stewart, supra note 22), a view never accepted by the Court, creates the absurd image of a person being liable for reading aloud to her breakfast companion a newspaper story that the newspaper had a right to print.
66. But see note 52. Justice Stewart's view that the press has greater speech rights (Stewart, supra note 22), a view never accepted by the Court, creates the absurd image of a person being liable for reading aloud to her breakfast companion a newspaper story that the newspaper had a right to print.
67. I can think of one exception. Although copyright restricts the freedom of both individuals and the press to say or print what they want, the press's constitutional role as a provider of information and vision may be adequately protected by a combination of an expansive fair use privilege and the idea/expression distinction. In combination, these guarantee a right to copy the idea or facts but not the actual words of a copyrighted item. In contrast, copyright should be unconstitutional under the First Amendment to the extent that it prevents an individual from expressing herself by repeating or distributing specific copyrighted expression. C. Edwin Baker, "First Amendment Limits on Copyright," Vanderbilt Law Review 55 (2002): 891-951.
68. Rights other than speech rights may differ. The government may have power to legislate regarding media structure or ownership in order to make the media better serve its public functions without having an analogous power over individuals. C. Edwin Baker, "Turner Broadcasting: Content-Based Regulation of Persons and Presses," Supreme Court Review (1994): 57-128. And the First Amendment may be a source of defensive rights that protect the institutional integrity of press entities, such as a "reporter's privilege" not to disclose a secret source, again without analogy to any individual rights. Baker, Human Liberty, supra note 5, chap. 10.
69. Rights other than speech rights may differ. The government may have power to legislate regarding media structure or ownership in order to make the media better serve its public functions without having an analogous power over individuals. C. Edwin Baker, "Turner Broadcasting: Content-Based Regulation of Persons and Presses," Supreme Court Review (1994): 57-128. And the First Amendment may be a source of defensive rights that protect the institutional integrity of press entities, such as a "reporter's privilege" not to disclose a secret source, again without analogy to any individual rights. Baker, Human Liberty, supra note 5, chap. 10.
70. For skeptical conclusions, see Bartnicki v. Vopper, 532 U.S. 514 (2001) (invalidating restriction on publication of information of public importance that was obtained through illegal wiretap); Nebraska Press Ass'n v. Stuart, 427 U.S. 539 (1976) (Brennan, J., et al, concurring) (indicating injunction against publication of information about the accused was improper no matter how shabbily the information was obtained); Food Lion v. Capital Cities/ABC, Inc., 194 F.3d 505 (4th Cir. 1999) (rejecting publication damages for communicative content obtained through illegal means).
71. Cohen v. Cowles Media Co., 501 U.S. 663 (1991). Generally, confidentiality - a restriction on speech-can be required of an employee or a person with an agency relationship to another.
72. But cf. Jerry Kang, "Information Privacy in Cyberspace Transactions," Stanford Law Review 50 (1998): 1193-1294.
73. Cf. Smith v. Daily Mail Publishing Co., 443 U.S. 97 (1979) (juvenile); Florida Star v. B. J. F., 491 U.S. 524 (1989) (rape victim).
74. Cf. Smith v. Daily Mail Publishing Co., 443 U.S. 97 (1979) (juvenile); Florida Star v. B. J. F., 491 U.S. 524 (1989) (rape victim).
75. 435 U.S. 829 (1978).
76. 443 U.S. 97 (1979).
77. 491 U.S. 524 (1989).
78. Although the Court in Turner Broadcasting System v. FCC, 512 U.S. 622 (1964) appeared to rule this purpose constitutionally impermissible, all the Supreme Court's prior cases involving structural regulation of the media suggest the opposite. Baker, "Turner Broadcasting," supra note 53.
79. For the best development of this claim, see Diane L. Zimmerman, "Requiem for a Heavyweight: A Farewell to Warren and Brandeis's Privacy Tort," Cornell Law Review 68 (1983): 291-367.
80. C. Edwin Baker, "Disaggregating the Concept of Property in Constitutional Law," in Nicholas Mercuro and Warren J. Samuels, The Economics of Legal Relationships, vol. 4, The Fundamental Interrelationships between Government and Property (Stamford, CT: JAI Press, 1999).
81. Cf. Galella v. Onassis, 487 F.2d 986 (2d Cir. 1973).
82. But cf. Hill v. Colorado, 530 U.S. 703 (2000).
83. Smith v. Daily Mail Publishing Co., 443 U.S. 97 (1979); Florida Star v. B. J. F., 491 U.S. 524 (1989).
84. Smith v. Daily Mail Publishing Co., 443 U.S. 97 (1979); Florida Star v. B. J. F., 491 U.S. 524 (1989).
85. Florida Star, 491 U.S. at 536.
86. Cf. Food Lion v. Capital Cities/ABC Inc., 194 F.3d 505 (4th Cir. 1999) (rejecting, on First Amendment grounds, publication damages resulting from dissemination of illegally obtained information), with Dietemann v. Time, Inc., 449 F.2d 245 (9th Cir. 1971) (allowing damages for tort to be enhanced due to publication).
87. Pearson v. Dodd, 410 F.2d 701 (D.C. Cir. 1969) (rejecting damages for publication where publisher did not commit the illegal intrusion).
88. New York Times v. United States, 403 U.S. 713 (1971).
89. Food Lion, 194 F.3d 505.
90. 532 U.S. 514 (2001).
91. Long the doctrinal norm, this principle has been rejected in the arguably unique circumstances of child porn. New York v. Ferber, 458 U.S. 747 (1982).
92. Baker, supra note 52.
93. The argument in the text would not seem confined to illegally obtained information. For instance, the state could argue that the name of a rape victim or the name of person who in the distant past engaged in some disreputable behavior is or is no longer a matter of public interest. So far, courts have, in my view properly, mostly rejected these arguments. Cox Broadcasting Corp. v. Cohn, 420 U.S. 469 (1975); Hayes v. Alfred A. Knopf, Inc., 8 F.3d 1222 (7th Cir. 1993). The information may add to the journalistic or scholarly integrity of the reports as well as provide truthful information about individuals that other persons may want.
94. See Eastwood v. Superior Court, 149 Cal. App. 3d 409 (1983); Hoffman v. Capital Cities/ABC, Inc., 33 F. Supp. 2d 867 (C.D. Cal. 1999). This point does not suggest that a right to protect one's image from unwanted use is wise policy even in these contexts. See Michael Madow, "Private Ownership of Public Image: Popular Culture and Publicity Rights," California Law Review 81 (1993): 125-240.
95. See Eastwood v. Superior Court, 149 Cal. App. 3d 409 (1983); Hoffman v. Capital Cities/ABC, Inc., 33 F. Supp. 2d 867 (C.D. Cal. 1999). This point does not suggest that a right to protect one's image from unwanted use is wise policy even in these contexts. See Michael Madow, "Private Ownership of Public Image: Popular Culture and Publicity Rights," California Law Review 81 (1993): 125-240.
96. See Eastwood v. Superior Court, 149 Cal. App. 3d 409 (1983); Hoffman v. Capital Cities/ABC, Inc., 33 F. Supp. 2d 867 (C.D. Cal. 1999). This point does not suggest that a right to protect one's image from unwanted use is wise policy even in these contexts. See Michael Madow, "Private Ownership of Public Image: Popular Culture and Publicity Rights," California Law Review 81 (1993): 125-240.
97. Cf. Florida Publishing v. Fletcher, 340 So. 2d 914 (1976); Prahl v. Brosamle, Case No. 152-062, Circuit Court, Dane County, August 28, 1982, cited in Marc A. Franklin, David A. Anderson, and Fred H. Cate, Mass Media Law, 6th ed. (New York, Foundation Press: 2000), 570. Neither the notion of private property nor the Constitution requires a trespass doctrine like that common in most American jurisdictions. A court developing an implied consent for reporters' presence on private property, such as developed in Fletcher or Prahl, obviously does not assume that the owner would have actually consented in these circumstances, but, rather, assumes a public policy justification for treating reporters' presence as "custom."
98. Cf. Florida Publishing v. Fletcher, 340 So. 2d 914 (1976); Prahl v. Brosamle, Case No. 152-062, Circuit Court, Dane County, August 28, 1982, cited in Marc A. Franklin, David A. Anderson, and Fred H. Cate, Mass Media Law, 6th ed. (New York, Foundation Press: 2000), 570. Neither the notion of private property nor the Constitution requires a trespass doctrine like that common in most American jurisdictions. A court developing an implied consent for reporters' presence on private property, such as developed in Fletcher or Prahl, obviously does not assume that the owner would have actually consented in these circumstances, but, rather, assumes a public policy justification for treating reporters' presence as "custom."
99. Cf. Florida Publishing v. Fletcher, 340 So. 2d 914 (1976); Prahl v. Brosamle, Case No. 152-062, Circuit Court, Dane County, August 28, 1982, cited in Marc A. Franklin, David A. Anderson, and Fred H. Cate, Mass Media Law, 6th ed. (New York, Foundation Press: 2000), 570. Neither the notion of private property nor the Constitution requires a trespass doctrine like that common in most American jurisdictions. A court developing an implied consent for reporters' presence on private property, such as developed in Fletcher or Prahl, obviously does not assume that the owner would have actually consented in these circumstances, but, rather, assumes a public policy justification for treating reporters' presence as "custom."
100. Kang, supra note 56.
101. See Ann Bartow, "Our Data, Ourselves: Privacy, Propertization, and Gender," University of San Francisco Law Review 34 (2000): 633-704.
102. Dietemann v. Time, Inc. 449 F.2d 245 (9th Cir. 1971); Shevin v Sunbeam Television Corp., 351 So. 2d 723 (Fla. 1977).
103. Dietemann v. Time, Inc. 449 F.2d 245 (9th Cir. 1971); Shevin v Sunbeam Television Corp., 351 So. 2d 723 (Fla. 1977).
104. Diane Leenheer Zimmerman, "I Spy: The Newsgatherer under Cover," University of Richmond Law Review 33 (2000): 1185-1231 (review and tentative First Amendment critique of these restraints).
105. Cf. Snepp v. United States, 444 U.S. 507 (1980) (federal government can require former CIA employee not to disclose information obtained during employment without approval of agency).
106. 467 U.S. 20 (1984).
107. See Seattle Times, 467 U.S. at 37 (Brennan, J., and Marshall, J., concurring). Analogous to the unconstitutional condition doctrine, restrictions imposed by employers on further use by employees or restrictions imposed by contract could be unenforceable because contrary to public policy. A court could have easily decided to protect publication of the source's name in Cohen v. Cowles Media Co., 501 U.S. 663 (1991), or information provided by whistle-blowers on this nonconstitutional ground.
108. 528 U.S. 32 (1999).
109. See supra note 84.
110. Baker, Human Liberty, supra note 5, chap. 9.
111. Central Hudson Gas & Electric Corp. v. Public Service Commission of New York, 447 U.S. 557 (1980).
112. Gentile v. State Bar of Nevada, 501 U.S. 1030 (1991) (5-4 decision upholding particular restriction on defense attorney's out-of-court speech). The case involved a lawyer's public statements at a news conference that he called to defend his client and to attack the veracity of the police. The Nevada Supreme Court had issued rules preventing defense attorneys from making public statements that might taint the jury pool. The attorney's case against the state disciplinary board's recommendation that he be reprimanded eventually reached the U.S. Supreme Court.
113. See, e.g., Baker, Human Liberty, supra note 5, chap. 9.
114. Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748 (1976); First National Bank of Boston v. Bellotti, 435 U.S. 765 (1978); Burt Neuborne, "The First Amendment and Government Regulation of Capital Markets," Brooklyn Law Review 55 (1989): 5-63.
115. Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748 (1976); First National Bank of Boston v. Bellotti, 435 U.S. 765 (1978); Burt Neuborne, "The First Amendment and Government Regulation of Capital Markets," Brooklyn Law Review 55 (1989): 5-63.
116. Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748 (1976); First National Bank of Boston v. Bellotti, 435 U.S. 765 (1978); Burt Neuborne, "The First Amendment and Government Regulation of Capital Markets," Brooklyn Law Review 55 (1989): 5-63.
117. 472 U.S. 181 (1985).
118. Lewis Publishing Co. v. Morgan, 229 U.S. 288 (1913). See generally, C. Edwin Baker, Advertising and a Democratic Press (Princeton, NJ: Princeton University Press, 1994), 118-37.
119. Lewis Publishing Co. v. Morgan, 229 U.S. 288 (1913). See generally, C. Edwin Baker, Advertising and a Democratic Press (Princeton, NJ: Princeton University Press, 1994), 118-37.
120. 851 F.2d 365 (D.C. Cir. 1988).
121. Despite this "commercial speech" explanation for the court's conclusion, the court's actual analysis was based on "government's broad power to regulate the securities industry." Clearly, however, the court was misguided to imply any broad, general governmental authority to regulate individuals' noncommercial speech or media speech about the securities industry.
122. 472 U.S. 749 (1985).
123. Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974).
124. Hadden View Investment Co. v. Coopers & Lybrand, 70 Ohio St. 2d 154, 436 N.E.2d 212 (1982) (accountant malpractice).
125. Gutter v. Dow Jones Inc., 22 Ohio St. 3d 286, 490 N.E.2d 898 (1989) (liability for error in stock table denied in contrast to liability for accountant error).
126. Cf. Fair Credit Reporting Act (1970) and Consumer Credit Reporting Act of 1996, 15 U.S.C. § 1681-16811.
127. United States Dep't of Justice v. Reporters Committee for Freedom of the Press, 489 U.S. 749 (1989).
128. My thinking here was prompted by Cohen, supra note 6.
129. But cf. the government's questionable concession in United Reporting, supra note 85, that if the commercial user "independently acquires the data, the First Amendment protects its right to communicate it to others." 528 U.S. at 45 (Stevens, J., dissenting).
130. All scope for a right of publicity is critiqued in Michael Madow, supra note 76. My claim here is that the constitutional critique should only apply to nonadvertising appropriations of another person's image.
131. Robert C. Post, "The Social Foundations of Defamation Law: Reputation and the Constitution," California Law Review 74 (1986): 691; Robert Post, Constitutional Domains: Democracy, Community, Management (Cambridge, MA: Harvard University Press, 1995). For a liberal account of the necessity of community for development of individual autonomy and its implications for political theory, see also Will Kymlicka, Liberalism, Community, and Culture (Oxford: Oxford University Press, 1989).
132. Robert C. Post, "The Social Foundations of Defamation Law: Reputation and the Constitution," California Law Review 74 (1986): 691; Robert Post, Constitutional Domains: Democracy, Community, Management (Cambridge, MA: Harvard University Press, 1995). For a liberal account of the necessity of community for development of individual autonomy and its implications for political theory, see also Will Kymlicka, Liberalism, Community, and Culture (Oxford: Oxford University Press, 1989).
133. Robert C. Post, "The Social Foundations of Defamation Law: Reputation and the Constitution," California Law Review 74 (1986): 691; Robert Post, Constitutional Domains: Democracy, Community, Management (Cambridge, MA: Harvard University Press, 1995). For a liberal account of the necessity of community for development of individual autonomy and its implications for political theory, see also Will Kymlicka, Liberalism, Community, and Culture (Oxford: Oxford University Press, 1989).
134. Baker, "Sandel on Rawls," supra note 29.
135. Randall Kennedy, "Racial Passing," Ohio State Law Journal 62 (2001): 1145-93, 1171-73. Even if African Americans mostly condemn passing, many also view it as a method to flout and subvert silly but oppressive racist laws and norms. Id. at 1169-70. Kennedy observes that "Langston Hughes repeatedly defended passing as a joke on racism." Id.
136. Randall Kennedy, "Racial Passing," Ohio State Law Journal 62 (2001): 1145-93, 1171-73. Even if African Americans mostly condemn passing, many also view it as a method to flout and subvert silly but oppressive racist laws and norms. Id. at 1169-70. Kennedy observes that "Langston Hughes repeatedly defended passing as a joke on racism." Id.
137. Randall Kennedy, "Racial Passing," Ohio State Law Journal 62 (2001): 1145-93, 1171-73. Even if African Americans mostly condemn passing, many also view it as a method to flout and subvert silly but oppressive racist laws and norms. Id. at 1169-70. Kennedy observes that "Langston Hughes repeatedly defended passing as a joke on racism." Id.
138. Id. at 1171 (citing Shirlee Taylor Haizlip's account). Cf. NAACP v. Claiborne Hardware Co., 458 U.S. 886 (1982) (among constitutionally protected methods of exercising power, boycotters of white businesses applied pressure on black "violators" by reading aloud their names in church and by publishing their names in a local black newspaper).
139. Id. at 1171 (citing Shirlee Taylor Haizlip's account). Cf. NAACP v. Claiborne Hardware Co., 458 U.S. 886 (1982) (among constitutionally protected methods of exercising power, boycotters of white businesses applied pressure on black "violators" by reading aloud their names in church and by publishing their names in a local black newspaper).
140. This paragraph is based entirely on Gross, supra note 2.
141. Id. at 9. Corpses may lie with both alternatives. Gross notes the suggestion that lack of positive role models contributes to the severely disproportionate number of suicides among gay youth. Id. at 126.
142. Id. at 9. Corpses may lie with both alternatives. Gross notes the suggestion that lack of positive role models contributes to the severely disproportionate number of suicides among gay youth. Id. at 126.
143. The capacity of someone with information to "out" another should not be assumed too quickly. A common mainstream view has been that homosexuality is not so bad as long as kept secret. The "Don't ask, don't tell" policy had not yet been invented by the U.S. military when Gross wrote his book, but he fully explained the appeal of such a policy. Gross, supra note 2, at 144-52. The mainstream press reflected this view by engaging in "inning," that is, by refusing to indicate a person's homosexuality in contexts where it would indicate a person's heterosexuality. Similarly, the press often refused to report as "news" that a major figure who assumed a public heterosexual image was actually gay, while routinely reporting other personal "news" about the figure.
144. This point should not obscure the fact that "outing" in neighborhoods, employment, and social contexts of gays, usually by nongays, also occurs and often has tremendously harmful consequences. At the end of my discussion of gossip below in the text, I note that gossip has overtly negative as well as useful consequences.
145. Baker, "Posner's Privacy Mystery," supra note 40. This argument responds to the opposite conclusion offered in Richard Posner, "The Right of Privacy," Georgia Law Review 12 (1978): 393-422.
146. Baker, "Posner's Privacy Mystery," supra note 40. This argument responds to the opposite conclusion offered in Richard Posner, "The Right of Privacy," Georgia Law Review 12 (1978): 393-422.
147. Zimmerman, "I Spy," supra note 81.
148. Zimmerman, "Requiem for a Heavyweight," supra note 62.
149. Oscar H. Gandy, Jr., The Panoptic Sort: A Political Economy of Personal Information (Boulder, CO: Westview Press, 1993).
150. I am not in a position to prove this characterization to those who do not see it. Still, declining levels of voting, the media's reduced emphasis on policy-oriented or political news, the view that society's problems are more a matter of charity or private action than public policy, a. cynical view of politicians and public servants,'the so-called "bowling alone" phenomenon, as well as interpretations of popular culture, are among the features of social life that I would examine for evidence. Battles over taxes (or the size of government) can be seen as disagreements about whether marginal value lies more in public or private expenditures of resources and energies. A retreat to private life, if it exists, may be a uniformly global phenomenon or it may be that the United States is alone or at least in the vanguard, in which case comparative evidence would be informative. For example, the only reports that appeared in the mainstream American media on the 2003 Finnish parliamentary elections emphasized the lack of policy differences or issues, other than how to respond to increased unemployment, between the two dominant parties, which produced a voter turnout of only 70 percent. Lizette Alvarez, "Finnish Center Party Edges Past Social Democrats in Election," New York Times, March 17, 2003, late edition-final, sec. A, p. 2, col. 3. Only by going beyond U.S. media, say, by viewing BBC online, could one discover that another prominent issue was the losing Social Democrats' inadequate opposition to President Bush's military policy toward Iraq. A Finnish academic told me, however, that the real story was the dramatic loss of seats by the conservative party, which apparently fell from favor because of the unpopularity of its promise of a tax cut, while both leading leftist parties picked up seats.
151. Steven H. Shiffrin, Dissent, Injustice, and the Meanings of America (Princeton, NJ: Princeton University Press, 1999).
152. Report of The Committee on Homosexual Offenses and Prostitution, The Wolfenden Report, authorized American ed. (New York: Stein and Day, 1963). The report stimulated a famous debate between Patrick Devlin and H. L. A. Hart. See Patrick Devlin, The Enforcement of Morals (Oxford: Oxford University Press, 1965); and H. L. A. Hart, Law, Liberty, and Morality (Stanford, CA: Stanford University Press, 1963).
153. Report of The Committee on Homosexual Offenses and Prostitution, The Wolfenden Report, authorized American ed. (New York: Stein and Day, 1963). The report stimulated a famous debate between Patrick Devlin and H. L. A. Hart. See Patrick Devlin, The Enforcement of Morals (Oxford: Oxford University Press, 1965); and H. L. A. Hart, Law, Liberty, and Morality (Stanford, CA: Stanford University Press, 1963).
154. Report of The Committee on Homosexual Offenses and Prostitution, The Wolfenden Report, authorized American ed. (New York: Stein and Day, 1963). The report stimulated a famous debate between Patrick Devlin and H. L. A. Hart. See Patrick Devlin, The Enforcement of Morals (Oxford: Oxford University Press, 1965); and H. L. A. Hart, Law, Liberty, and Morality (Stanford, CA: Stanford University Press, 1963).
155. Gross, supra note 2, at 144-50. See also Larry Cata Becker, "Exposing the Perversions of Toleration: The Decriminalization of Private Sexual Conduct, the Model Penal Code, and the Oxymoron of Liberal Toleration," Florida Law Review 45 (1993): 755-802.
156. Gross, supra note 2, at 144-50. See also Larry Cata Becker, "Exposing the Perversions of Toleration: The Decriminalization of Private Sexual Conduct, the Model Penal Code, and the Oxymoron of Liberal Toleration," Florida Law Review 45 (1993): 755-802.
157. Gross, supra note 2, at 149-50.
158. Id. at 146.
159. Id. at 152.
160. Id. at 127.
161. Id. at 146.
162. Id. at 169-70.
163. Id. at 172 (quoting Benjamin Schatz, "Should We Rethink the Right to Privacy?" Advocate, February 1991).
164. Id. at 172 (quoting Benjamin Schatz, "Should We Rethink the Right to Privacy?" Advocate, February 1991).
165. Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974).
166. The Court has not ruled on the application of this tort to private persons. However, in Hustler Magazine v. Falwell, 485 U.S. 46 (1988), while applying the Sullivan standard of "actual malice" to inflictions of emotional distress, the Court emphasized that the case involved public figures.
167. Gertz, 418 U.S. at 344-45.
168. Dun & Bradstreet v. Greenmoss Builders, Inc., 472 US 749 (1985), is a rare exception where the Court, despite the dissent's devastating critique, characterized the content as private.
169. Warren and Brandeis, supra note 1, at 196.
170. John Sabini and Maury Silver, Moralities of Everyday Life (Oxford: Oxford University Press, 1982), 92-94.
171. Nothing here turns on a more precise definition of gossip; Sabini and Silver devote most of a chapter to describing the concept. Id. at 89-106. I should emphasize that nothing about gossip implies anything about whether it is or is not accurate, but the gossip that I defend here is only gossip that is not subject to the critique of being knowingly or recklessly false.
172. This section draws heavily on Sabini and Silver, supra note 133; Gluckman, supra note 3.
173. This section draws heavily on Sabini and Silver, supra note 133; Gluckman, supra note 3.
174. Sabini and Silver, supra note 133, at 100-101.
175. Gluckman, supra note 3.
176. Patricia Meyer Spacks, Gossip (New York: Alfred A. Knopf, 1985), 5. See also James C. Scott, Domination and the Arts of Resistance (New Haven, CT: Yale University Press, 1990), 142-43.
177. Patricia Meyer Spacks, Gossip (New York: Alfred A. Knopf, 1985), 5. See also James C. Scott, Domination and the Arts of Resistance (New Haven, CT: Yale University Press, 1990), 142-43.
178. See, e.g., Spacks, supra note 138, at 46. She claims that "gossip gives voices to the dominated as well as the dominant." Id. at 263.
179. See, e.g., Spacks, supra note 138, at 46. She claims that "gossip gives voices to the dominated as well as the dominant." Id. at 263.
180. Id. at 256.
181. Gross, supra note 2, at 125.
182. Id. at 124 (quoting Andrea Weiss, "'A Queer Feeling When I Look at You': Hollywood Stars and Lesbian Spectatorship in the 1930s," in Christine Gledhill, ed., Stardom: Industry of Desire [London: Routledge, 1991], 283-99).
183. Id. at 124 (quoting Andrea Weiss, "'A Queer Feeling When I Look at You': Hollywood Stars and Lesbian Spectatorship in the 1930s," in Christine Gledhill, ed., Stardom: Industry of Desire [London: Routledge, 1991], 283-99).
184. Spacks, supra note 138, at 40. The role of sex as a form of communication is the reason that I have given for providing First Amendment protection to consensual sex. See, e.g., C. Edwin Baker, "Op-Ed: First Amendment Protection for Gays," New York Times, July 27, 1991, late-edition final, p. 23.
185. Spacks, supra note 138, at 40. The role of sex as a form of communication is the reason that I have given for providing First Amendment protection to consensual sex. See, e.g., C. Edwin Baker, "Op-Ed: First Amendment Protection for Gays," New York Times, July 27, 1991, late-edition final, p. 23.
186. I have replied to this criticism when leveled against John Rawls in Baker, "Sandel on Rawls," supra note 29.
187. Benjamin Constant, "The Liberty of the Ancients Compared with That of the Moderns," (1819), in Biancamaria Fontana, ed. and trans., Political Writings (Cambridge: Cambridge University Press, 1988), 309-28. The "liberty of the ancients" consisted in "active and constant participation in collective power." Id. at 316. My claim is that gossip has important similarities.
188. Benjamin Constant, "The Liberty of the Ancients Compared with That of the Moderns," (1819), in Biancamaria Fontana, ed. and trans., Political Writings (Cambridge: Cambridge University Press, 1988), 309-28. The "liberty of the ancients" consisted in "active and constant participation in collective power." Id. at 316. My claim is that gossip has important similarities.
189. C. Edwin Baker, "Campaign Expenditures and Free Speech," Harvard Civil Rights-Civil Liberties Law Review 33 (1998): 1-55.
190. Thomas I. Emerson, The System of Freedom of Expression (New York: Random House, 1970), 7.
191. See Kenneth Karst, "Boundaries and Reasons: Freedom of Expression and the Subordination of Groups," Illinois Law Review 1990 (1990): 95-149.
192. Baker, Human Liberty, supra note 5, chap. 4.
193. 376 U.S. 254 (1964).
194. Harry Kalven, Jr., A Worthy Tradition: Freedom of Speech in America (New York: Harper & Row, 1988), 63.
195. See Harry Kalven, Jr., "The New York Times Case: A Note on 'The Central Meaning of the First Amendment,'" Supreme Court Review (1964): 191-221, at 221.
196. This may be a slight overstatement. Vince Blasi suggests that the checking function of the First Amendment argues for the propriety of giving challengers in electoral contests a right-to-reply such as the one struck down in Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241 (1974), although he thought the checking function was not served by giving such a right to incumbents. Blasi, supra note 50. However, Kalven, who might have implied this view by suggesting that rejection of seditious libel is definitive of democracy,
197. Rosenbloom v. Metromedia, 403 U.S. 29 (1971); Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974) (Brennan, J., dissenting).
198. Rosenbloom v. Metromedia, 403 U.S. 29 (1971); Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974) (Brennan, J., dissenting).
199. A possible explanation is that absolutists do not credit "lies" as speech under the First Amendment. Absolutists never suggest, for example, that perjury or fraud constitute protected speech. If so, then they still might protect lies about political matters for prophylactic reasons. For example, they might distrust either state officials' or jurors' evaluation of the intentionality of falsehoods made during partisan debate. Falsehoods usually are knowing lies when made by the opposition but, when "we" make them, the falsity is always accidental and made in good faith! For this reason, absolutists might protect these, but only these, purportedly "knowing" falsehoods.
200. Post, Constitutional Domains, supra note 105, 119-78.
201. Anderson v. Fisher Broadcasting Companies, 300 Ore. 452 (1986).
202. Gross noted that in the debates on outing at the first convention of the National Lesbian and Gay Journalists Association in 1992, "it was easy to tell who was on which team by the uniforms: those in favor are most often clad in multiple earrings and sassy T-shirts. Those opposed wear suits and ties." Gross, supra note 2, at 151. Still, one wonders which side was most committed to "official" journalistic norms that emphasize truth-telling and the public's right to know. In 1990, Michelangelo Signorile observed that to print a story "about a closeted gay man's woman friend as his lover ... is applauded," but "if you print the truth you are deemed 'frightening and offensive.' " Id. at 60 (quoting Signorile).
203. Gross noted that in the debates on outing at the first convention of the National Lesbian and Gay Journalists Association in 1992, "it was easy to tell who was on which team by the uniforms: those in favor are most often clad in multiple earrings and sassy T-shirts. Those opposed wear suits and ties." Gross, supra note 2, at 151. Still, one wonders which side was most committed to "official" journalistic norms that emphasize truth-telling and the public's right to know. In 1990, Michelangelo Signorile observed that to print a story "about a closeted gay man's woman friend as his lover ... is applauded," but "if you print the truth you are deemed 'frightening and offensive.' " Id. at 60 (quoting Signorile).
204. Karst, supra note 148; Shiffrin, supra note 118.
205. Karst, supra note 148; Shiffrin, supra note 118.
206. Time, Inc. v. Hill, 385 U.S. 374 (1967).
207. John D. Stevens, Sensationalism and the New York Press (New York: Columbia University Press, 1991), 6-7.