Do political candidates have privacy rights?

November 27, 2020 In Blog, COVID-19, Data, Privacy, Right of Publicity, Uncategorized By Kirby Shilling

Consider the following:

• When President Trump was hospitalized with COVID-19, critics insisted that more details on his medical condition and treatment should have been made publicly available. Many argued that this was especially important given the context: a looming election and a pandemic.^[1] Others have maintained that POTUS owes no such duty.^[2]

•Upon Amy Coney Barrett’s nomination to the Supreme Court, articles delved deep into her personal life, disclosing much to the public that she likely would not herself have divulged.^[3]

It is widely acknowledged that choosing a career in politics is equivalent to thrusting oneself into the public eye.^[4] But how far does such a waiver extend? To what degree do we, the people, have the right to such information? At what point, if any, does a candidate’s privacy interest outweigh the First Amendment rights of speech and of the press? And how is this all affected by the ever-increasing role of the internet and social media?

In The Right to Privacy, Samuel Warren and Lewis Brandeis offered a theory regarding one’s “right to be let alone.”^[5] Subsequent legislative and judicial development of statutes and common law has embraced this liberty.^[6] However, the right to privacy is not absolute, and case law has reflected this sentiment.^[7] In particular, a public official is said to have waived his or her privacy rights “’as the price of admission’” to the political realm.^[8]

Specifically, the press acts as a sort of informal check on our governmental institutions, serving as a crucial “watchdog” role in the process of self-governance.^[9] Therefore, its First Amendment protections may pose substantial obstacles for the exercise of one’s privacy rights. ^[10]

Courts are hesitant to disallow speech or disclosure pertaining to matters of public interest on privacy grounds^[11] so as to not prevent “[the] unfettered interchange of ideas for the bringing about of political and social changes desired by the people.”^[12] Thus, the press generally will not be held liable at tort for coverage of a public official or figure, so long as (a) the information is not obtained through illegal means, and (b) that person’s privacy right is infringed no further “than that necessary to protect the overriding public interest.”^[13]

Case law has established the general rule that candidates for political office, as public figures, have no privacy claim with respect to “the flow of truthful information which may be relevant to his qualifications for office.”^[14] This permits the circulation of any facts that may impact the choices of the electorate.^[15]

The Supreme Court held that false statements pertaining to public figures are “inevitable in free debate,”^[16] and the protection of such expression is essential for a healthy democracy; thus, a public figure can only recover damages if he or she is able to establish that the speaker acted with “actual malice” or “recklessness” as to the falsity of the material.^[17] False speech can only be regulated to the extent that it falls under a constitutionally-regulable category (such as “fighting words”) or that such restriction furthers a compelling, legitimate state interest in a narrowly tailored way.^[18]

If, hypothetically, the Huffington Post publishes an article regarding Trump’s rape accusations, and those allegations turn out to be untrue, the disclosure is not actionable absent malicious intent of publishing the allegations. “Fake news” cannot be regulated solely on the basis of its false nature.^[19]

Additionally, truthful disclosures of private information regarding public officials or public figures, are often considered to be constitutionally-protected speech.^[20] Many political candidates have brought actions in tort, claiming violations of their rights to privacy.^[21] The First Amendment grants the highest degree of protection over press coverage of matters of public interest. ^[22] While state tort laws may vary, a prima facie case for invasion of privacy generally cannot stand where the information is “newsworthy” or “of legitimate concern to the public.”^[23]

Courts have consistently held that comments and actions of a public official in his or her governmental role are “newsworthy” matters of legitimate public concern,^[24] and that the citizenry’s interest in such disclosure is paramount to its democratic function.^[25] This also includes “reports of private facts that bear on the fitness or competence… of candidates for… public office.”^[26]

However, it is unclear how far the privilege of public interest may reach. Do Trump’s COVID-19 medical records fall under this category? At what point is such a private fact no longer relevant to a candidate’s suitability for office? Is Amy Coney Barrett’s family fair game? Are her affiliation with a particular church of the public concern?

These sorts of determinations are generally made ad hoc, on a case-by-case basis, taking account of the nature of the information at issue, while weighing the relative strengths of the privacy interest versus speech rights and the public interest in their disclosure.^[27]

Some courts have taken a more expansive approach, holding a broad array of private facts to bear weight on the candidate’s fitness for office, and therefore to constitute newsworthy matters of public concern.^[28] In Garrison v. State of Louisiana, the Court held, despite potential overlap with private matters, “few personal attributes are more germane to fitness for office than dishonesty, malfeasance, or improper motivation….”^[29] In this sense, Amy Coney Barrett’s personal life and views may be significant, particularly to citizens (here, as represented by the Senate) who may view such considerations as relevant to her ability to judge.^[30]Transparency grants the people all of the information that may be relevant to inform their consent (where such consent is required), “either directly, as in an election, or indirectly, through the acts of those to whom the people have allocated the particular right to act in their name.”^[31]

Similarly, many argue that the disclosure of Trump’s financial records fall under this category. Such information, among other things, illustrates a candidate’s assets and liabilities, “which can let voters know of possible conflicts of interest and whether there are entanglements with foreign businesses and foreign governments.”^[32]

Still, while an individual’s status as a public figure or public official often tips the scales in favor of First Amendment protection, no court has held that the right to privacy is always subordinated to that of speech or of the press.^[33] Some jurisdictions will allow privacy rights to outweigh speech interests and impose liability if the disclosed facts are insufficiently related to the public figure or candidacy.^[34] Information that is properly categorized as entertainment or gossip is more likely to lose out to privacy rights.^[35] Additionally, liability may be imposed for intrusion that could “conceivably subject them to annoyance or harassment in either their official or private lives.”^[36] For example, some courts have taken the view that the legitimate public interest in a public figure may extend to family members.^[37] In certain circumstances, therefore, coverage regarding Amy Coney Barrett’s family might fairly be categorized as “newsworthy.” However, where such reporting threatens their safety, privacy interests will likely be given more weight.^[38] Additionally, while Trump’s tax information may concern the public interest, and may be relevant to his fitness for reelection, this too may have its limitations. For example, such disclosure might not be justified where it unreasonably poses threats to “dignity and safety interests.”^[39]

Different courts apply their own tests to determine whether certain facts are relevant to the public interest or if they represent mere “morbid and sensational prying.”^[40] Notwithstanding the inconsistencies among some of these approaches, the judiciary tends to accord a significant amount of deference to the press in determining whether information is “newsworthy” in this context.^[41] In many cases, this has meant that the media’s interests will often prevail over the individual’s privacy rights, regardless of the particular balancing test utilized by the court.^[42]

But, the age of social media arguably intensifies the conflict between rights of privacy and those of the press.^[43] This is increasingly apparent in the campaign arena, which has essentially been supplanted by modern technological practices.^[44] For instance, court deference to the media in determining what is “newsworthy” may no longer be appropriate.^[45] The press today uses algorithms to determine what its audience wants to read, and therefore covers what is “relevant” and not necessarily what bears “objective value or importance.”^[46] The concept of newsworthiness has thus changed; “‘algorithmic logic’ is eclipsing ‘editorial logic.’”^[47] This may have the effect of substituting constitutional values surrounding the freedom of the press- “truth, transparency, and accountability”^[48] – for more commercial-based considerations. It has been noted that the “modernization of free speech” has led to a proliferation in the amount and degree of private information disclosed publicly. ^[49] A generation of social media users may well be more interested in the personal lives of Sasha and Malia Obama than their father’s political activity; these preferences are reflected in the news with which we are presented, despite the insignificant role they may play in a self-governing democracy.

Moreover, such information isn’t in a news article that is thrown away the next day; stories can remain indefinitely on the internet, and in the public domain potentially forever.^[50] So, for example, an article posted about Justice Barrett’s family, if posted online, can be accessed years later, thus arguably causing more harm, over a longer period of time than if the story had been printed or broadcasted live.

Because there has been scant case law in this area over the last two decades, it is unclear whether and how jurisprudence will shift in response to these new complications.^[51] Nonetheless, the press currently has a great deal of leeway to print what it deems appropriate for public disclosure. The private lives of political figures such as Trump or Barrett are fair game, so long as the information is obtained legally, and the scope is not overly intrusive.

Footnotes[+]

Footnotes
1	See, e.g., Robert Klitzman, The Confidentiality of Trump’s Medical Information Has Limits, The Hill (Oct. 7, 2020,10:15 AM EDT), https://thehill.com/opinion/white-house/519953-the-confidentiality-of-trumps-medical-information-has-limits [https://perma.cc/238Q-MB4U].
2	See, e.g., Adam Rogers, No, You Don’t Need to See President Trump’s Medical Records, Wired (June 19, 2020, 7:00 AM), https://www.wired.com/story/no-you-dont-need-to-see-president-trumps-medical-records/ [https://perma.cc/S8NT-KWNP].
3	See, e.g., Emma Brown, Jon Swaine & Michelle Boorstein, Amy Coney Barrett served as a ‘handmaid’ in Christian group People of Praise, Wash. Post (Oct. 6, 2020, 8:09 PM EDT), https://www.washingtonpost.com/investigations/amy-coney-barrett-people-of-praise/2020/10/06/5f497d8c-0781-11eb-859b-f9c27abe638d_story.html [https://perma.cc/2S7B-J7NX]; Francis X. Rocca & Lindsay Wise, What Is People of Praise? Amy Coney Barrett’s Faith Brings Attention to a Charismatic Group, Wall Street J. (Oct. 11, 2020, 3:44 PM EST), https://www.wsj.com/articles/what-is-people-of-praise-amy-coney-barretts-faith-brings-attention-to-a-charismatic-group-11602445444 [https://perma.cc/7PRC-BP3T].
4	See Rebecca Green, Candidate Privacy, 95 Wash. L. Rev. 205, 229 (2020).
5	Samuel D. Warren & Louis D. Brandeis, The Right to Privacy, 4 Harv. L. Rev. 193, 193 (1890).
6	See Green, supra note 4; see also Pavesich v. New England Life Ins. Co., 50 S.E. 68, 69–70 (1905).
7	62A Am. Jur. 2d Privacy §§ 81, 153 (2020); see, e.g., Garrison v. State of La., 379 U.S. 64, 77, 85 S. Ct. 209, 217 (1964); see also Josh Blackman, Omniveillance, Google, Privacy in Public, and the Right to Your Digital Identity: A Tort for Recording and Disseminating an Individual’s Image over the Internet, 49 Santa Clara L. Rev. 313, 318–19 (2009).
8	1 J. Thomas McCarthy, The Rights of Publicity and Privacy, § 4:24 (2d ed. 2020) (citing Savell, The Right of Privacy: History and Scope in New York, 48 Alb. L. Rev. 1, 31 (1983)); see also 62A Am. Jur. 2d Privacy § 163 (2020).
9	See Jeffrey Abramson, Full Court Press: Drawing in Media Defenses for Libel and Privacy Cases, 96 Or. L. Rev. 19, 23 (2017).
10	See Dietel, supra note 9, at 149-50; see also Cox Broad. Corp. v. Cohn, 420 U.S. 469, 496 (1974); Diaz, 139 Cal. App. 3d at 126.
11	See Dietel, supra note 9, at 141–42, 150; see also 62A Am. Jur. 2d Privacy § 153 (2020).
12	Buckley, 424 U.S. at 14 (quoting Roth v. United States, 354 U.S. 476, 484 (1957)); see also Franklin, supra note 12, at 1671 (1987).
13	77 C.J.S. Right of Privacy and Publicity § 15.
14	David A. Elder, Privacy Torts § 3.16 (2019) (quoting Beruan v. French, 128 Cal. Rptr. 869, 870–71 (Ct. App. 1976)).
15	See Green, supra note 4, at 253–55.
16	New York Times Co. v. Sullivan, 376 U.S. 254, 271–72 (1964).
17	See Kadri, supra note 10, at, 915 (citing Sullivan, 376 U.S. at 279–80 (1964)); see also Green, supra note 4, at 218–19 (2020); Strasser, supra note 11, at 1084-85 (2012).
18	See Eric Emanuelson, Jr., Fake Left, Fake Right: Promoting an Informed Public in the Era of Alternative Facts, 70 Admin. L. Rev. 209, 219–20 (2018).
19	United States v. Alvarez, 567 U.S. 709, 719 (2012).
20	See Strasser, supra note 11, at 1085; see e.g., Rosenblatt v. Baer, 383 U.S. 75, 85 (1966); Garrison v. State of La., 379 U.S. 64, 76-77 (1964).
21	See Green, supra note 4, at 216-17.
22	See Dietel, supra note 9, at 141–42.
23	Id.; see also 62A Am. Jur. 2d Privacy § 79 (2020); Restatement (Second) of Torts § 652D (Am. Law Inst. 1977); Virgil v. Time, Inc., 527 F.2d 1122, 1128 (9th Cir. 1975).
24	See 62A Am. Jur. 2d Privacy § 155 (2020).
25	New York Times Co. v. Sullivan, 376 U.S. 254, 271 (1964); see also Kadri, supra note 10, at 915–16.
26	62A Am. Jur. 2d Privacy § 157 (2020).
27	62A Am. Jur. 2d Privacy § 153 (2020).
28	See, e.g.,Abramson, supra note 13, at 49–50 (discussion of the court’s rulings following Sullivan).
29	379 U.S. 64, 77 (1964).
30	See Ralph Gregory Elliot, The Private Lives of Public Servants: What Is the Public Entitled to Know?, 27 Conn. L. Rev. 821, 826-27 (1995).
31	Id. at 827.
32	Green, supra note 4, at 253 (quoting Erwin Chemerinsky, Requiring Candidate Tax Returns is Legal, L.A. Times (July 31, 2019), https://enewspaper.latimes.com/infinity/article_share.aspx?guid=05e5b57e-283b-4b8b-bb5f-b6f947024b21 [https://perma.cc/FV9P-ZPMU]).
33	See Francis C. Amendola et al., 16B C.J.S. Constitutional Law § 1189 (2020); Erin C. Carroll, Making News: Balancing Newsworthiness and Privacy in the Age of Algorithms, 106 Geo. L.J. 69, 104 (2017).
34	See 62A Am. Jur. 2d Privacy § 155 (2020); Elder, supra note 18.
35	62A Am. Jur. 2d Privacy §§ 152, 157 (2020); see also Dietel, supra note 9, at 157 (1999).
36	16B C.J.S. Constitutional Law § 1189.
37	Restatement (Second) of Torts § 652D, cmts. & illus. (Am. Law Inst. 1977).
38	See 16B C.J.S. Constitutional Law § 1189.
39	Green, supra note 4, at 254.
40	62A Am. Jur. 2d Privacy §§ 152, 156-57 (2020); see also Richard T. Karcher, Tort Law and Journalism Ethics, 40 Loy. U. Chi. L.J. 781, 826–28 (2009); Capra v. Thoroughbred Racing Ass’n, 787 F.2d 463, 464-65 (9th Cir. 1986); Doe v. Gangland Prods., Inc., 730 F.3d 946, 958-59 (9th Cir. 2013).
41	See Carroll, supra note 37, at 104-05.
42	J. Thomas McCarthy & Roger E. Schechter, 1 The Rights of Publicity and Privacy § 5:77 (2020) (quoting Diane L. Zimmerman, Requiem for a Heavyweight: A Farewell to Warren and Brandeis’s Privacy Tort, 68 Cornell L. Rev. 291, 353 (1983)); see also Danielle Keats Citron, Mainstreaming Privacy Torts, 98 Cal. L. Rev. 1805, 1829 (2010); Carroll, supra note 37 , 106 Geo. L.J. 69, 72 (2017).
43	See Dietel, supra note 9, at 136–39.
44	See Green, supra note 4, at 226.
45	See Carroll, supra note 37, at 71–74 (2017).
46	Id. at 71.
47	Id. at 101.
48	Id. at 82.
49	Karcher, supra note 44, at 796.
50	See Abramson, supra note 13, at 47; see also Green, supra note 4, at 224–27.
51	See Bruce Brown & Selina MacLaren, Holding the Presidency Accountable: A Path Forward for Journalists and Lawyers, 12 Harv. L. & Pol’y Rev. 89, 92–94 (2018); see also Kadri, supra note 10, at 903; Abramson, supra note 13, at 20–21 (2017).

Kirby Shilling

Kirby Shilling is a second-year J.D. candidate at Fordham School of Law and a staff member of the Intellectual Property, Media & Entertainment Law Journal. She is also on the Corporate and Financial Law Journal. She earned her B.A. in Classics and Government from Smith College.

Do political candidates have privacy rights?

Do political candidates have privacy rights?

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