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.Harry Kalven once suggested that the freedom of speech protectedby the First Amendment is so broad and overpowering as virtually to swal-low the tort. 24 The Supreme Court has never directly addressed the ques-tion.25 As already noted, the critical issue is whether such expression canappropriately be deemed low-value speech within the meaning of theFirst Amendment.Low-Value SpeechThe Supreme Court has never offered a clearly defined theory of low-valuespeech.The case law, however, suggests that several factors are relevant tothe analysis.First, categories of low-value speech (for example, false state-ments of fact, threats, commercial advertising, fighting words, expressincitement of unlawful conduct, and obscenity) do not primarily advancepolitical discourse.Second, categories of low-value speech are not definedin terms of disfavored ideas or political viewpoints.26 Third, categories of low-value speech usually have a strong noncognitive effect on the audience.27Fourth, categories of low-value speech have long been regulated withoutundue harm to the overall system of free expression.28A defining characteristic of speech that is actionable as an invasion ofprivacy is that it is non-newsworthy. In principle, this takes care of thefirst two criteria.That is, non-newsworthy information, by definition,presumably does not primarily advance political discourse and is not de-fined in terms of a disfavored idea or point of view.The third and fourth criteria, however, are more problematic.Unlike, say,threats, fighting words, and obscenity, all of which arguably have a powerfulnoncognitive impact on the audience, non-newsworthy information does nothave that characteristic.29 Some other low-value categories, however, such asfalse statements of acts and commercial advertising, also do not share thischaracteristic, so its absence should not be taken to be dispositive.The fourth criterion is critical.A long tradition of regulating a particularcategory of low-value expression creates a shared understanding of the Privacy, the First Amendment, and the Internet 183contours and definition of the category and demonstrates from experiencewhether the category can be regulated without doing undue damage toFirst Amendment interests.Every recognized category of low-value speechhas long been subject to legal regulation, and most classes of low-valuespeech were regulated at common law even before the adoption of the FirstAmendment.The importance of this criterion makes considerable sense, for the recog-nition of novel categories of low-value speech poses serious constitutionaldangers.The very concept of low-value speech is inherently problematic.AsThomas Emerson once observed, the doctrine inevitably involves courts in value judgments concerned with the content of expression, a role that isawkward, at best, in light of the basic theory of the First Amendment. 30Placing great weight on experience and tradition in this context is thereforea reasonable way to capture the benefits of the low-value doctrine withoutinviting freewheeling judicial judgments about constitutional value. 31 TheCourt has rightly been very reluctant to recognize new categories of low-value speech, and this reluctance has stood us in good stead.There is no long-standing tradition of regulating the publication of non-newsworthy private information.Although the tort was first proposed in1890 and has been adopted by most states, even now, 120 years later, thereis no extensive case law defining the boundaries of the tort and no well-developed understanding of how to reconcile the tort with the First Amend-ment.For the most part, the tort has been enforced rarely and idiosyncrati-cally.As Daniel Solove, a strong advocate of the privacy tort, has conceded,courts have struggled when applying the newsworthiness test. 32 There issimply no track record to suggest that this category of expression can mean-ingfully be regulated without unduly impairing the freedom of speech moregenerally.The central argument for treating this category of speech as low value isthat it is said to be non-newsworthy and therefore does not meaningfullycontribute to the sort of public discourse that the First Amendment wasintended to promote.But the very concept of non-newsworthy is exceed-ingly slippery.Of course, it is easy to hypothesize specific examples ofspeech that most people would readily agree constitute non-newsworthydisclosures of private information, the publication of which would behighly offensive to reasonable people.Consider, for example, a nude photo-graph of an otherwise private individual that someone posts on the Internetfor no reason other than to embarrass him.It is difficult to see how such an 184 Speechimage, standing alone, could be deemed newsworthy, or how it could bedenied that the posting would be deemed highly offensive by reasonablepeople [ Pobierz całość w formacie PDF ]
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.Harry Kalven once suggested that the freedom of speech protectedby the First Amendment is so broad and overpowering as virtually to swal-low the tort. 24 The Supreme Court has never directly addressed the ques-tion.25 As already noted, the critical issue is whether such expression canappropriately be deemed low-value speech within the meaning of theFirst Amendment.Low-Value SpeechThe Supreme Court has never offered a clearly defined theory of low-valuespeech.The case law, however, suggests that several factors are relevant tothe analysis.First, categories of low-value speech (for example, false state-ments of fact, threats, commercial advertising, fighting words, expressincitement of unlawful conduct, and obscenity) do not primarily advancepolitical discourse.Second, categories of low-value speech are not definedin terms of disfavored ideas or political viewpoints.26 Third, categories of low-value speech usually have a strong noncognitive effect on the audience.27Fourth, categories of low-value speech have long been regulated withoutundue harm to the overall system of free expression.28A defining characteristic of speech that is actionable as an invasion ofprivacy is that it is non-newsworthy. In principle, this takes care of thefirst two criteria.That is, non-newsworthy information, by definition,presumably does not primarily advance political discourse and is not de-fined in terms of a disfavored idea or point of view.The third and fourth criteria, however, are more problematic.Unlike, say,threats, fighting words, and obscenity, all of which arguably have a powerfulnoncognitive impact on the audience, non-newsworthy information does nothave that characteristic.29 Some other low-value categories, however, such asfalse statements of acts and commercial advertising, also do not share thischaracteristic, so its absence should not be taken to be dispositive.The fourth criterion is critical.A long tradition of regulating a particularcategory of low-value expression creates a shared understanding of the Privacy, the First Amendment, and the Internet 183contours and definition of the category and demonstrates from experiencewhether the category can be regulated without doing undue damage toFirst Amendment interests.Every recognized category of low-value speechhas long been subject to legal regulation, and most classes of low-valuespeech were regulated at common law even before the adoption of the FirstAmendment.The importance of this criterion makes considerable sense, for the recog-nition of novel categories of low-value speech poses serious constitutionaldangers.The very concept of low-value speech is inherently problematic.AsThomas Emerson once observed, the doctrine inevitably involves courts in value judgments concerned with the content of expression, a role that isawkward, at best, in light of the basic theory of the First Amendment. 30Placing great weight on experience and tradition in this context is thereforea reasonable way to capture the benefits of the low-value doctrine withoutinviting freewheeling judicial judgments about constitutional value. 31 TheCourt has rightly been very reluctant to recognize new categories of low-value speech, and this reluctance has stood us in good stead.There is no long-standing tradition of regulating the publication of non-newsworthy private information.Although the tort was first proposed in1890 and has been adopted by most states, even now, 120 years later, thereis no extensive case law defining the boundaries of the tort and no well-developed understanding of how to reconcile the tort with the First Amend-ment.For the most part, the tort has been enforced rarely and idiosyncrati-cally.As Daniel Solove, a strong advocate of the privacy tort, has conceded,courts have struggled when applying the newsworthiness test. 32 There issimply no track record to suggest that this category of expression can mean-ingfully be regulated without unduly impairing the freedom of speech moregenerally.The central argument for treating this category of speech as low value isthat it is said to be non-newsworthy and therefore does not meaningfullycontribute to the sort of public discourse that the First Amendment wasintended to promote.But the very concept of non-newsworthy is exceed-ingly slippery.Of course, it is easy to hypothesize specific examples ofspeech that most people would readily agree constitute non-newsworthydisclosures of private information, the publication of which would behighly offensive to reasonable people.Consider, for example, a nude photo-graph of an otherwise private individual that someone posts on the Internetfor no reason other than to embarrass him.It is difficult to see how such an 184 Speechimage, standing alone, could be deemed newsworthy, or how it could bedenied that the posting would be deemed highly offensive by reasonablepeople [ Pobierz całość w formacie PDF ]