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Vanderbilt Law Review

John P. Dillman

First Page

925

Abstract

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 scholars recognize, a constitutionally based privacy right, but suggest that the first amendment may give publishers of private truthful information a complete defense of privilege."

The analytical premises of the Court's first amendment model, however, do not necessitate that the Court always subordinate individual privacy to press freedom. Instead, these premises actually support a first amendment interest in protecting the privacy of the individual, thereby preserving the public disclosure tort remedy. Thus, cases concerning the public disclosure of private facts pose a difficult constitutional dilemma: courts must choose between two opposing claims, both of which arise not from conflicting constitutional provisions, but from the first amendment. As a result, the Court should balance these competing claims with equal scrutiny and on a level playing field. This Note re-evaluates the Court's own model of the first amendment and shows that under its model, the Court errs when it summarily dismisses an individual's privacy interest in favor of a publisher's claim of first amendment privilege. If both claims arise from the same constitutional provision and both merit strict scrutiny, then the Court must accommodate both claims without denying either one its unique protection under the first amendment. Part II of this Note examines and criticizes the classic democratic model of the first amendment. Part III recommends amending the model to accommodate protection of individual privacy. Part IV then analyzes a particular application of the amended model to the Supreme Court's recent excursion into this area in Florida Star v. B.J.F.'0

Finally, Part V briefly assesses the state action concerns relating to the amended model proffered in this Note.

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