Originally uploaded to SRRN.

Abstract

Increasingly more “ordinary” Americans are choosing to share their life experiences with a public audience. In doing so, however, they are revealing more than their own personal stories, they are exposing private information about others as well. The face-off between autobiographical speech and information privacy is coming to a head, and our legal system is not prepared to handle it.

In a prior article, I established that autobiographical speech is a unique and important category of speech that is at risk of being undervalued under current law. This article builds on my earlier work by addressing the emerging conflict between autobiographical speech and information privacy. Both interests foster personal autonomy and encourage participation in public debate, and both interests seek to give individuals the power to control if, when and how their personal information is shared with the world. The conflict between speech and privacy has proven to be a pervasive and especially difficult problem, and prior attempts to balance the two interests - through the lens of property or contract law - have failed.

In this article, I propose a new, workable framework to resolve the conflict by reexamining the tort of public disclosure of private facts. This analysis reveals that the current over-emphasis on whether the information disclosed was “newsworthy” is misplaced and likely unconstitutional. The tort’s protection of individual privacy, however, can be reconciled with the First Amendment by interpreting the “offensiveness” element to include an examination of the purpose of the disclosure. A number of courts have implicitly adopted this view and, in doing so, are reflecting community norms that disclosures made for sufficient justifications - such as sharing newsworthy information or, I submit, engaging in autobiographical speech - are not highly offensive. Disclosures made for purely voyeuristic reasons, however, are highly offensive.

This “justified disclosure” approach encompasses community norms and expectations in a way that is more predictable and fair than other proposed frameworks. It further promises to be applicable not just to the conflict between autobiographical speech and information privacy but to broader disputes involving privacy and speech.

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