Brandeis University, Philosophy Department
Spring 2007
Brandeis University Web Stite

Philosophy 22B

Philosophy of Law

Professor Andreas Teuber
Prof. Teuber

Free Speech and Its Limits

Preamble: John Stuart Mill provided in On Liberty what is sometimes described as "the classic liberal answer" to the question: when and under what circumstances may a presumption in favor of the free expression of opinion be limited. He framed the issue clearly and simply: "the only purpose," he wrote in 1859, "for which power may be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others." But even though Mill's "harm principle" sounds "simple" in general, in the abstract, it is far from "simple" in its application in practice. Under what conditions may this principle be overridden? What reasons, what public interests and/or public goods might possibly justify restrictions to the free expression of opinion, a category of actions subsumed under Mill's harm principle?

One possible justification for restricting free speech is to protect privacy. In some cases that privacy may itself involve the use of speech; it may constitute what might be called "private speech." Thus there may arise a conflict between public and private speech. The question then becomes how might this conflict be resolved. Which side should the law favor? With this brief preamble in mind, consider the following:

In 1998, the Supreme Court of Canada heard a case involving a civil suit brought by a woman against a magazine. Thr magazine had published her photo that had been taken without her consent. It was taken, however, while she was sitting in a public place, that is, on the steps of a public building. The Court held that "the right to one's image is included in the right to respect for one's private life" protected by the Quebec Charter.

"Freedom of speech and the press" are clearly involved in this case. The magazine claimed that the information in the photo was "socially useful" and that the public had a right to this information. The magazine had used the photo in a feature in its pages on "contemporary urban life" and it argued that this theme was of public interest to its readers and therefore the public had a right to the information despite the fact that the photo was published without the authorization or consent of the person "in" the photo.

How would you decide this case?

How would you strike a balance between free speech and the privacy concerns of the woman in public?

Does the public interest trump the infringement of the right to privacy in this case?

What do you think? Now consider the case of Oliver Sipple:

Sipple prevented the assassination of President Gerald Ford by striking the arm of Sara Jane Moore as she was aiming to kill Ford during a visit by the President to San Fancisco. During the following week the San Francisco Chronicle disclosed in a series of articles that Sipple was gay. Sipple sued the newspaper for violating his privacy, arguing, among other things, that he had kept his identity secret from his family although some people in the Bay Area knew.

He lost on First Amendment grounds. The California Appeals Court argued that "the publications were not motivated by a morbid and sensational prying into appellant's private life but rather were prompted by legitimate political considerations, i.e., to dispel the false public opinion that gays were timid, weak and unheroic figures. . . ." This information the newspaper argued was of "legitimate concern to the public" and that the "public concern," the public's "interest" overrode, in this instance, any privacy right or interest Sipple may have had in protecting his sexual identity.

What do you think?

If you were the judge, how would you decide this case?

How would you strike a balance between free speech and the privacy concerns of Oliver Sipple?

Does the public interest trump the invasion of privacy in this case?

Now consider the following Florida case involving a private person who was the victim of a crime:

A Florida law made it illegal to "print, publish, or broadcast . . . in any instrument of mass communication" the name of a victim of a sexual offense. The Florida Star, a newspaper, published the name of a rape victim and she sued the paper. The Court decided in favor of the paper on First Amendment grounds and barred the rape victim from recovery of damages, arguing that the information that the paper published was "truthful" and had been "lawfully obtained" by the newspaper, although in violation of the Florida law. A court reporter from the paper had seen the information in a police log that just happened to be sitting in the press room of the local police department.

But surely publishing the name of the rape vixtim was a violation of her privacy, some might argue a "cruel invasion of her privacy." And what, after all, is the public's interest here? Does the public benefit from knowing the name of the victim of sexual assault? She did not give her consent to have her name in the "public eye." Did the Court in this case strike the right balance between privacy and freedom of speech and the press?

What do you think?

If you were the judge, how would you decide this case?

How would you strike a balance between free speech and the privacy concerns of the victim of sexual assault?

Does the public interest trump the invasion of privacy in this case?

Each of these cases requires a balancing, a weighing of two competing interests we have - all of us - in preserving, protecting and fostering free speech and privacy.

But where ought the balance be struck? That's the question.

In each case it is certainly possible to have an immediate "feeling" for where the line might be drawn. It is, however, quite another thing to arrive at a set of responses that are consistent and coherent. It is also not easy to explain one's reasoning in each case in such a way that one's reasoning makes sense and sounds reasonable to other reflective people.

What sorts of considerations are relevant in these cases that help to balance speech and privacy concerns in order to strike the "right" balance? To help in this process, consider the following (recent) Supreme Court case, Barnicki v. Vopper:

The case involved the illegal interception of a cell phone conversation between two union officials who were discussing strategy for dealing with a local Pennsylvania School Board.

I say "illegal" because Title III of the Omnibus Crime Control and Safe Streets Act is now law, having passed through Congress as part of its effort to prevent invasions of privacy that arise as a result of a disclosure of information obtained through the interception of oral, wire or electronic [cell phone] communications. Title III prohibits "any person [from] intentionally disclos[ing] or endeavor[ing] to disclose, to any other person the contents of any wire, oral or electronic communications, knowing or having reason to know that the information was obtained through [such] interception."

In Barnicki the cell phone conversation between the two union officials was intecepted by a third party, under cover without authorization, and taped. This third person then gave the tape of the recorded conversation to an "opponent" of the union who gave it, in turn, to the host of a local radio talk show who played the tape of the illegally obtained conversation on his show. The conversation centered on negotiations with the School Board and possible plans for a strike. During the course of the conversation one union official said to the other: "If they're not going to move for three percent, we're going to have to go to their, their homes . . . to blow off their front porches; we'll have to do some work on those guys."

The union officials sued the broadcaster and the radio station for damages under Title III of the Omnibus Crime Control Act.

The case found its way to the Supreme Court and was argued before the Court on December 5, 2000 and the decision was announced on May 21, 2001. The Court sided with the broadcaster on free speech grounds.

But Bartnicki is interesting, not for its outcome, but for the reasoning that is evident in the various opinions. Justice Stevens writes the opinion for the majority, but both Justice Breyer and Justice O'Connor write their own separate opinions in support of the outcome but by relying on different arguments and offering a very different mix of reasons and concerns. Had these two sided with the minority, the decision would have swung the other way in favor of the union officials and their interest in privacy.

Drawing on the reasoning in this case, make a coherent reasoned opinion that you think can apply to your decisions in each of the three cases noted above, in the Canadian case involving the publication of a photo of a woman who appeared in public, the case of Oliver Sipple, and the case involving the publication of the name of a victim of sexual assault by The Florida Star.

So, too, drawing on the reasoning in Bartnicki and from any of the opinions there, think of the most powerful objections that might be raised to your reasons for deciding the cases as you do, and respond to them.