Vanderbilt Law Review

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It is no surprise that the press, in exercising its traditional first amendment freedom, often discloses truthful information about individuals that those individuals would prefer to keep private. An inevitable tension exists between the public's right to know and the individual's right to be let alone.' What is surprising, however, especially given the historic recognition of both a free press and individual privacy as rights fundamental to the preservation of American society, is that the privacy interests of the individual almost always lose.

The prevalent rationale for this lopsided result is that the first amendment protects the values promoted by press freedom and that any infringement of these values consequently warrants the strictest scrutiny by the courts. The values promoted by privacy, on the other hand, are general liberty interests within the fifth and fourteenth amendments that, when threatened, deserve only due process balancing.' Some legal scholars, therefore, have claimed that the public disclosure tort,' which gives individuals a cause of action against a publisher of embarrassing private facts of no legitimate public interest, is facially invalid. Nevertheless, recent Supreme Court decisions reflect, and most as it consists in preventing publication, is merely an instance of the enforcement of the more general right of the individual to be let alone."

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