Column: Inside the First Amendment, by Gene Policinski

Strictly speaking, privacy is not a “First Amendment” issue. It’s not one of the five freedoms protected by the amendment’s 45 words, and in some cases it even works in opposition to the practical application of those freedoms.

The legal roots of privacy in the U.S. weren’t really set for the first time — except for the English concept of “a man’s home is his castle” — until a century after the Bill of Rights was ratified in 1791, when future U.S. Supreme Court justice Louis D. Brandeis opined on “the right to be let alone.”

But in our lifetimes — and more since just last June — privacy and its implications for First Amendment areas ranging from free speech to the freedom to assemble have taken on a new urgency prompted by government surveillance of the World Wide Web, phone calls and high-tech gadgetry.

Beyond questions of how much does the government know about our individual lives through captured emails, online search logs and records of whom we telephoned, where and for how long, there’s the looming impact on whether we will feel free to speak our minds even in “private” moments, and whom will we be willing to be seen with?

Now-infamous whistleblower Edward Snowden about a week ago appeared to raise a “watchdog on government” defense for his disclosures of NSA surveillance activities — a claim long the province of journalists. In a letter given to a German lawmaker, Snowden wrote that “Speaking the truth is not a crime” — a twist on the longstanding press defense to defamation: Truth is an absolute defense.

Emerging drone technology — using unmanned aerial devices — creates a new debate over what’s private, what’s public, and what the public, press or government can learn from such devices. Commercial use of drones is expected in late 2015. If journalists use drones to record huge swatches of information — say tracking the path of fleeing bank robbers — will the granting of government permission to use public airspace lead to government demands in return for the “fruits” of such access, potentially turning journalists into inadvertent police informants?

Free expression and personal privacy collide in very serious ways over a repellant tactic tagged “revenge porn,” in which one-time lovers or ex-spouses retaliate against former girlfriends or spouses who have sent them intimate and revealing photos prior to a breakup.

California is the most-recent state to tackle the issue, but it criminalizes only images stolen from those who rightfully hold such pictures. In at least seven states, lawmakers intend to or have proposed stronger laws to make more kinds of “revenge porn” at least a misdemeanor offense.

Those injured can now try to recover damages through civil lawsuits, on grounds such as intentional infliction of emotional distress — but that’s often costly and certainly can be embarrassing. It may well be possible to craft a tightly focused criminal statute to punish former suitors who misuse revealing images sent in trust. But First Amendment advocates say such laws will have to avoid unfairly restricting free expression through requirements such as strict proof of criminal intent in posting the photos, and proof of actual harm to the person depicted.

Sometimes, the free expression vs. personal privacy issue even veers into the unexpected. In Massachusetts, a lawyer argued on Nov. 3 that her client, a man charged with trying to take so-called “upskirt” photos of women in 2010 in the Boston subway, was protected by the First Amendment. The lawyer argued such photos were legal if the camera did nothing more than capture “what he saw … in plain sight.”

A number of states have enacted laws against overt attempts to take such photos. But in the Massachusetts case, the lawyer said her client “did not place his camera directly up a woman’s skirt. He saw what was in front of him.” In doing that, she raised the possibility of photographers of all kinds being subject to prosecution for taking general pictures in public places. In an era in which nearly every cell phone is also camera, that’s not an esoteric consideration.

It’s worth noting that privacy and the First Amendment can go hand-in-hand, sometimes at a high constitutional level. In 1958, the U.S. Supreme Court voted 9-0 that the Alabama NAACP chapter had a right to keep private its list of members and staff in the state — foiling attempts by segregationists to identify and target its members.

Perhaps the only thing clear today in these ongoing conflicts between privacy and free expression that we’re more “public” than ever — but that in dealing with negative aspects of that reality, we need always to consider the not-always-obvious impact of proposed limits on First Amendment freedoms.

 

Gene Policinski is chief operating officer of the Newseum Institute and senior vice president of the Institute’s First Amendment Center. He can be reached at gpolicinski@newseum.org.