Privacy, Publication, and the First Amendment: The Dangers of First Amendment Exceptionalism

Abstract

The coordination of common law and constitutional norms are of pressing importance on matters offreedom of speech. In the Supreme Court and elsewhere, it is possible to discern two sharply inconsistent attitudes toward this question. One view holds that the First Amendment simply prevents any legislative backsliding from the common law rules that protect freedom of speech and of the press, much as they protect freedom of contract and freedom of action generally. On this view, the standard rule governing damages and injunctive relief apply to speech much as they do anywhere else. On the alternative view of what is termed First Amendment exceptionalism, the First Amendment protection is read more broadly to afford speech greater protection than the common law rules that insulate the publication of stolen information from judicial sanction by either damages or injunction. The article then argues that the common law approach affords a better balance between privacy and disclosure with respect to a wide range of confidential information, including the protection of trade secrets. In so doing, it criticizes the results reached in a number of important recent cases including Desnick v. American Broadcasting Co., Food Lion v. Capital Cities/ABC, and Ford Motor Co. v. Lane.