When Private Information Becomes Public: What Is Public Disclosure of Private Facts?

Would you want your Social Security number published online? What about your medical records? Of course not!

We probably feel that way about a lot of other things as well: records of traffic tickets, pictures we’re tagged in — maybe from our younger, wilder years. There’s a lot of publicly available information about us floating around out there — some that we’re aware of and some that we aren’t.

Social media and the internet have made the notion of personal privacy seem sort of quaint — something you’d associate with the 20th century, not the 21st.

In reality, legal protections for personal privacy go back much further. In 1890, prominent legal thinkers Louis Brandeis and Samuel Warren wrote an article for the Harvard Law Review arguing that reporters and photographers were invading the private lives of prominent members of society.

Warren and Brandeis, who later became a U.S. Supreme Court justice, said that all people deserved the “right to be let alone.” Their idea was so influential that states passed laws creating a legal protection known as “public disclosure of private facts,” allowing people to win lawsuits in cases where their privacy has been invaded.

What are public disclosure of private facts laws, and why do they exist?

These laws are like defamation laws in that they seek to protect an individual’s reputation from harm. The difference is that defamation laws protect against harm to a reputation that results from a false assertion of fact, while public disclosure of private facts laws protect against harm to a reputation that results from true but embarrassing facts.

We’ve all made mistakes or have secrets we want to keep to ourselves. Public disclosure of private facts recognizes the right to keep some of the highly personal ones private.

How does public disclosure of private facts fit with the First Amendment?

While we might feel uncomfortable when embarrassing facts about us are revealed, the First Amendment protects people’s right to be informed about issues that matter. For instance, we have a right to know whether our national leaders have medical issues that might affect their ability to do their job or when our neighbors have a history of criminal activity or reckless behavior.

Much like defamation, obscenity and other types of speech that can be restricted, public disclosure of private facts requires balancing the need to protect against the harm that speech might inflict on a person with the right of people to access important information. The First Amendment accomplishes this by protecting most such speech and only punishing speech that is truly harmful and adds little or nothing to the public conversation.

When does public disclosure of private facts lose First Amendment protection?

There is no federal public disclosure of private facts law; it is purely a creature of state law. And while every state has its own definition of public disclosure of private facts, these laws all tend to look the same.

A person who files a public disclosure of private facts lawsuit must prove the information shared about them:

• Was published widely
• Clearly identified them
• Is private, not public, information
• Is highly offensive
• Is not of public concern

1. Widespread publication

The person filing the lawsuit must show that the public disclosure of a private fact was not only published, but that it was published widely. This usually requires some form of mass media: posting something about a person online; publishing it in a newspaper, book or magazine; or saying it during a television or radio program or a podcast — though it can also include saying it in a speech to a large audience.

2. Identification

The person bringing the lawsuit must be able to say “this was clearly about me” because they are alleging an invasion of their personal privacy. This can be proven even if a person is not identified by name or shown in a photo or video. A general description that would allow an average person to understand who the speaker or writer was talking about is enough.

3. Private (that is, not public) information

How do laws regarding public disclosure of private facts define “private”?

The easiest way to understand this is to look at how courts have defined “not private” — or, more simply, public.

Information is not private if it’s in a public record 

If something appears in an official government document, it is presumed to be true — and important. If someone gains access to that document legally — for instance, through a publicly available court document or a public records request — it can be published.

The U.S. Supreme Court has, in several cases, indicated that the First Amendment protects the right to publish true information that has been lawfully obtained, even when that information is clearly sensitive in nature:

• A 1975 case involved a 17-year-old girl who had been raped and killed. A television reporter learned the victim’s name from the criminal indictment and broadcast that information, in violation of a Georgia law that made it a criminal offense to publish or broadcast the name of any rape victim. The victim’s father sued the television station, but the Supreme Court ruled in the station’s favor in Cox Broadcasting Corp. v. Cohn, saying, “A trial is a public event. What transpires in the court room is public property.” The court ultimately found the Georgia law unconstitutional.
• In 1989, the Supreme Court ruled on a similar matter. A Florida Star reporter learned the name of a woman who had been raped — information the reporter had obtained through a police report. The reporter published the woman’s name in an article, and the woman filed a lawsuit. But in Florida Star v. B.J.F., the Supreme Court determined the information the reporter published was lawfully obtained and truthful. The court reversed a district court’s opinion that found the newspaper violated a Florida law prohibiting the publication of “the name of a victim of a sexual offense in any instrument of mass communication.”

Taken together, these cases make it clear that states can pass laws that attempt to protect the privacy of victims of sexual assault and other crimes as well as juvenile or other criminal defendants. If this information is part of the public record (because the state law doesn’t require that it be kept out of the court records or the court doesn’t grant a person’s request for that to occur) and is legally obtained by the press, it can be published.

In 2001, the Supreme Court granted even more protection in this area by expanding the way in which truthful information can be “lawfully obtained.” An unidentified person had intercepted and recorded a phone conversation between a union negotiator and the union president. The conversation concerned collective bargaining negotiations between a teachers’ union and a school board. A radio station received the tape in the mail and, after an agreement in negotiations was reached in favor of the teachers’ union, decided to broadcast it. The union negotiator and president sued the station, but the court ultimately ruled in favor of the radio station in Bartnicki v. Vopper. The station didn’t hack the call, and it did not ask anyone else to hack the call on its behalf. In his opinion, Justice John Paul Stevens noted that the union negotiations are a matter of public interest and that “a stranger’s illegal conduct does not suffice to remove the First Amendment shield from speech about a matter of public concern.”

Information about events that happened in a public place is not private 

An individual’s privacy expectation diminishes whenever they are in public. This concept is most applicable when photos or videos taken in public are published or broadcast. Two similar cases from lower courts provide clear examples that even the most embarrassing moments lose protection if they happen in a public setting:

• A 1976 case involved a Sports Illustrated article that included a photo of a Pittsburgh Steelers fan with his fly down. The fan sued the magazine, but a federal district court ruled in favor of Sports Illustrated in Neff v. Time Inc. (even though the court agreed another picture probably should have been published) because: "(John W.) Neff's picture was taken in a public place with his knowledge and with his encouragement; he was catapulted into the news by his own actions; nothing was falsified; a photograph taken at a public event which everyone present could see, with the knowledge and implied consent of the subject, is not a matter concerning a private fact."
• A 1991 case in Texas goes a step further. A newspaper published a photo of a high school soccer player chasing the ball that showed his genitals. The soccer player sued the paper, but in McNamara v. Freedom Newspapers Inc., the state appeals court ruled in favor of the paper, saying, “When an individual is photographed at a public place for a newsworthy article and that photograph is published, the entity publishing the photograph is entitled to the protection of the First Amendment.”

If it’s already public, it can’t be private 

Courts have generally determined that if information is already widely known among some members of the public, it likely won’t be considered private.

One such case involved a 1975 assassination attempt on President Gerald Ford’s life. Oliver Sipple saw Sara Jane Moore point a gun at the president in San Francisco. Sipple, a former Marine, grabbed Moore’s arm as she was firing.

Famed San Francisco Chronicle columnist Herb Caen wrote about the incident, noting Sipple had become a hero in the local LGBTQ+ community in San Francisco and questioning why he only received a note of thanks from Ford, rather than a more public thank you. Other papers began to note Sipple’s sexual orientation in asking the same questions, with some speculating “that President Ford's failure to promptly thank Sipple for his heroic act was a result of Sipple’s sexual orientation.”

It was through these articles that Sipple’s family learned he was gay, at which point they disowned him. Sipple sued the San Francisco Chronicle, but a California trial court ruled in favor of the paper, with a state appeals court later upholding that decision. The appeals court decision, written in 1984, noted that “prior to the publication of the newspaper articles in question appellant’s homosexual orientation and participation in gay community activities had been known by hundreds of people in a variety of cities.”

4. Highly offensive to a reasonable person

It’s not enough for the published fact to be private information; it must be a highly offensive private fact. A good way to understand the difference is: A private fact is something an average person doesn’t want to become public, but a highly offensive private fact is something that an average person actively seeks to keep from the public. This definition would also include information the law specifically identifies as private.

Some examples include medical or financial records; medical conditions; sexual orientation; sexual activity; personal emotions in times of extreme grief; information revealing that someone has been the victim of a sexual or violent assault; and/or deep personal and even religious beliefs, if not shared with the public.

5. No legitimate public concern/not newsworthy

A fact becomes less private if it matters to a large swath of the public. In making this determination, the court looks at whether the inclusion of a given private fact in a story is gratuitous or titillating or whether it advances the story.

In 1979, the Iowa Supreme Court considered a case involving a newspaper that published a story about a woman who was involuntarily sterilized while in a mental institution. The person suing the newspaper on behalf of the woman argued the publication of this information violated the woman’s privacy. But in Howard v. Des Moines Register & Tribune Co., the court ruled in favor of the paper, saying that the article’s focus was to reveal the poor conditions and subpar treatment at the state’s mental health facilities. It added that “the disclosure contributed constructively to the impact of the article. It offered a personalized frame of reference to which the reader could relate, fostering perception and understanding. Moreover, it lent specificity and credibility to the report.”

Going back to Oliver Sipple’s lawsuit against the San Francisco Chronicle, the California Court of Appeals similarly noted that Sipple’s sexual orientation was essential to the story. The publication was “prompted by legitimate political considerations, i.e., to dispel the false public opinion that gays were timid, weak and unheroic figures and to raise the equally important political question whether the President of the United States entertained a discriminatory attitude or bias against a minority group such as homosexuals.”

The concept of newsworthiness expanded over the years to the point where some believe that public disclosure of private facts is an impossible case to win — that any demonstration of a legitimate public interest in the private fact results in a court ruling for the defendant. As these cases show, that’s not entirely true:

• Ruth and Wayne Shulman, a mother and son, were seriously injured in a car accident. The process of getting them out from under their car and transporting them to the hospital via medical helicopter was filmed for a show called “On Scene: Emergency Response.” The episode contains many snippets of conversation between Ruth and medical personnel that she later regretted and was embarrassed to see on television. The California Supreme Court held in Shulman v. Group W Productions Inc. (1998) that broadcasting these statements while Ruth was in such distress and without her permission was highly offensive and there existed a reasonable expectation of privacy during a conversation between Ruth and the medical staff.
• Yee Keung Siu was an officer of the Chinese Economic Development Group in San Francisco. He was accused by two other board members, Pius Lee and William Lee, of making a $140,000 payment from the organization's funds without board approval. Siu claimed that Lee used his position as chairman of the board of directors to obtain the release of a bank signature card on file containing Siu’s name, signature, date of birth and mother’s maiden name. Lee gave the card to a newspaper, which published an image of it. A California Court of Appeals ruled in Siu v. Lee (2007) that, despite the news value of the story itself, there was no newsworthiness in a picture of the banking card with highly sensitive information.

But in most cases, the right to personal privacy must give way to the fundamental First Amendment rights of freedom of speech and the press. Even Louis Brandeis and Samuel Warren, who believed in the right to be left alone, acknowledged this fact. These freedoms protect the right to say and publish truthful information about people, especially when these facts are important to public debates.

Kevin Goldberg is a vice president and First Amendment expert at Freedom Forum. He can be reached at kgoldberg@freedomforum.org.