The “Ultimate Question”: A Limited Argument for Trafficking in Stolen Speech

 

Matthew J. Coleman

 

Although it recently came close, the Supreme Court has never answered the “ultimate question” of First Amendment law: should First Amendment protection extend to the publication of truthful information obtained by the publisher thereof through unlawful means.  In the case of Bartnicki v. Vopper, the Court took its boldest steps to date in this area and extended the First Amendment shield to a “punished publisher of information [that] obtained the information in question in a manner lawful in itself but from a source who [ ] obtained it unlawfully.”  In this Article, I argue that although the Bartnicki Court adopted a doctrinally troublesome public concern test, the result reached by the Court should be extended to its logical conclusion that, when certain conditions are met, the media should be afforded First Amendment protection for the publication of truthful information, even if the publisher itself acted unlawfully in obtaining that information.

 

            Even so, I argue for only a limited extension of First Amendment protection to the publication of unlawfully acquired information.  I propose in my manuscript a nuanced approach based on (1) a recognition that there are competing rights on both sides of the equation (the privacy and speech rights of those whose conversations are misappropriated, on the one hand, and the First Amendment rights of the publisher and its audience, on the other hand) and (2) “our profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open,” New York Times Co. v. Sullivan.  Following these guiding principles, which I refer to as the “competing rights principle” and the “New York Times principle,” respectively, will sometimes dictate that the privacy and speech interests of individual speakers engaged in private conversations be given precedence over the publishing interests of the press and vice versa.  Developing a methodology for how to make this decision in any particular case is my major objective.

 

            Toward that end, I argue that the two guiding principles are fundamentally linked and that both the competing rights principle and the New York Times principle are best served in any particular case by weighing (1) the harm to the individual speaker of having otherwise private communications disclosed against (2) the benefit to the public of having misappropriated information published—a methodology that I call the “harm/benefit paradigm” or the “harm/benefit approach.”  I also examine how the public/private nature of the speaker and the public/private nature of the speech at issue serve as useful, though not perfect, proxies for both the harm and benefit sides of the calculus.  As a general matter, an individual speaker is most likely to feel violated, harmed, and invaded by the publication of unlawfully obtained information if she is a private citizen speaking about private matters.  Similarly, on the benefit to the public side of the equation, the public is likely to be most benefited by and is likely to find most relevant, discussion of public matters by a public figure.  The utility to the public of the information at issue is likely to decline as the speaker moves down the public/private continuum toward the private citizen endpoint and as the subject-matter of the speech slides down the scale toward more purely private matters that have diminishing public relevance.

 

While it is clear that the harm/benefit paradigm is based on a recognition that the “ultimate question” presents competing speech interests, the question that arises at this point is what links the harm/benefit paradigm to an “uninhibited, robust, and wide-open debate?”  I suggest that the fundamental answer is that by honoring the speech rights of the publisher in those instances in which the harm to the individual speaker that would be caused by publication is outweighed by the benefit to the public, and by honoring the speech and privacy rights of the individual speaker in those instances in which publication would result in greater harm to the speaker than benefit to the public, the harm/benefit approach assures individuals of the requisite privacy needed to foster “uninhibited” private conversation, while simultaneously providing the press with the constitutional protections it is due under the First Amendment.  In other words, the course of action that maximizes benefit and minimizes harm tends to favor the speech rights of publishers with respect to the publication of public matters discussed by public figures (which has relatively low privacy costs to the speaker and relatively large benefits for the public) and to favor privacy rights in the context of the publication of private matters discussed by private speakers (which has relatively high privacy costs to the speaker and relatively small benefits for the public).  This means that the information most relevant to an “uninhibited, robust, and wide-open” debate, i.e., matters of public significance discussed by public figures, would be widely disseminated, even if unlawfully obtained by the publisher, and that private citizens could be comfortable that publishers are unlikely to enjoy First Amendment protection for the publication of unlawfully obtained private conversations.  Thus, the harm/benefit approach avoids the consequence of having private discussion unacceptably chilled, while also enhancing the public debate on matters of public significance (consistent with both the competing rights principle and the New York Times principle).

 

Thus, I propose that there are compelling reasons society should favor the limited extension of constitutional protection to the publication of unlawfully obtained speech.  However, this protection cannot be extended lightly, categorically, or without serious deliberation that takes into account the privacy rights on the other side of the equation, but neither can it be denied on the grounds of privacy rights alone.  My objective is to give structure and reason to the inquiry required by this “ultimate question” of First Amendment law and to demonstrate that the current path of Supreme Court jurisprudence toward a pure public concern test is doctrinally dangerous and ultimately unworkable.  As an alternative, I propose the harm/benefit paradigm, which synthesizes existing First Amendment doctrine into a coherent framework that rationalizes resolution of the “ultimate question.”  In the end, the harm/benefit paradigm honors the freedom of the press and protects public speech, but not at the extraordinary cost of private citizens’ legitimate expectations of privacy and an unacceptable chilling of private speech.