The Clash Between Privacy and Freedom of the Press
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Speaker 2: What can people be liable for reporting about you if they find some secret? What might they be liable for despite freedom of expression?
Dahlia Lithwick: Hi and welcome back to Amicus. This is Slate’s podcast about the courts and the law and the rule of law in the Supreme Court. I’m Dahlia Lithwick. And this is part of our summer series that takes a step back and looks at interesting new books and films and articles about justice in the law and the ways we can think about them in a kind of lens shifting way.
Dahlia Lithwick: Our guest today is an old friend of mine, Amy Gajda. She is Tulane Law School’s class of 1937, professor of law. And she’s a journalist turned lawyer who is recognized internationally for expertise in privacy, media law, torts, the law of higher education. And her scholarship really probes the tension between social regulation and First Amendment values, particularly the shifting boundaries of a free press and public anxiety about privacy.
Dahlia Lithwick: Her newest book is Seek and Hide the Tangled History of the Right to Privacy. It was published by Viking in 2022, and the New York Times calls it Ryan fascinating, named it one of the top 17 nonfiction books of the season. And Amy is somebody that I always turn to at least once a week in my head, at least when I’m trying to think about press and privacy. So welcome to the show and congratulations on this book, which I’ve just read for the second time. And I just love it and commend it to listeners because in addition to being important and thoughtful, it’s just a really fun read.
Speaker 2: Oh, thank you so much. I’m really so happy to be here. It’s a real joy to be with you.
Dahlia Lithwick: So this book is a lot of history on history. On history. And in some ways it is a long meditation about the collision between the right to know and the right to privacy, the right to be left alone. So by necessity, that’s going to cover over two centuries of First Amendment free speech claims and over a century, I guess, of trying to put meat on the bones of privacy rights. And I think all this history, in addition to being fascinating, is imperative to our understanding about how we are still thinking about technology and the right to know in a changing media landscape.
Dahlia Lithwick: And yet I felt like I just had to open with Marian Minallah. Singer, actress, and star of Broadway’s Castles in the Air and her famous tights. And I think I need to start with her because it’s a great story. Amy But also it could have happened to a Cardassian a week ago. In some sense, you open with Marian, I think, because we’re still playing out that game, right? So can you talk a little bit about her and what we can interpret from that story about today?
Speaker 2: Sure. So as you suggest, she was a famous Broadway actress. And back then, women wore skirts that were extremely long, so long that their shoes would be hidden. And what Broadway actresses did was they wore tights on stage. And so people were very intrigued with seeing women in tights. And Marian Minallah had been pictured in this way, and her image was used in store windows to advertise a coming play. And she was mortified. Her daughter saw it. She was mortified. So she said never again. She continued her work on stage, and a couple of years later she was in a performance and suddenly up in the balcony. During the second act, there was a flash of light and a sound and someone had taken a picture of Marian Manilla in her tights. You can imagine the scandal.
Speaker 2: And so Marian Menzel, who had felt that her image was used in this disturbing way, previously brought a lawsuit and asked the photographer, who was also her producer, by the way, never to publish the photo, but also never even to create it in the first place. So to destroy it completely, the judge agreed with Marian Minallah, and we will never know how she looked that day because there is no photo. It was never published.
Speaker 2: So at that time, in the late 1800s, 1890, cameras had just moved out of studios, and photographers could take images of people on the street or Broadway actresses in their tights. And so there was great worry at the time about that technology and what it might do. And you’re so right that, you know, of course, today we have phones that can record. We have hidden cameras sometimes in bathrooms, in public bathrooms and that sort of thing. In fact, still happening today, worries about technology and how it might invade privacy and what to do about it.
Dahlia Lithwick: All you lay out in your kind of first section in the book, Little Primer, Everything you need to know if you’re not a lawyer about media law and privacy law and the First Amendment. Is it fair to say that one of the things that you when you set the table for the book and maybe set the table for this conversation, that part of the careening pendulum that you describe in the book of judicial and statutory protections for either privacy or free access of the press. Part of the reason that is such a careening pendulum is that there are very strong, coherent press and media protections in the First Amendment and then just much, much more fuzzy and sometimes flaccid ideas about the protection of privacy.
Speaker 2: Yeah, that’s right. I mean, privacy is not in the Constitution, as you know. And that’s been a real part of this problem, why we have these different types of privacy in the United States that don’t exist elsewhere. There’s just generally one type of privacy. When we say privacy, we mean one thing. The privacy that I write about is this clash between freedom of the press and the right to privacy. And very often it’s in a tort sense. So in a tort sense, what can people be liable for reporting about you if they find some secret? What might they be liable for?
Speaker 2: Despite freedom of expression and tort law looks at that and suggests that, yeah, we care about free press, we care about expression, we care about those interests, but we also care about the individual. And sometimes even in tort law, the judges will talk about liberty and freedom and those sorts of things that come out of the Constitution much more than you might think a torts case would suggest.
Dahlia Lithwick: So when we talk about this robust idea that there is a right to privacy, there is a right to individual dignity and liberty. A ton of the debate, Amy, is still framed by an essay. I read it in law school. This famous Harvard Law Review essay, The Right to Privacy, written in 1890 by lawyer Samuel Warren, his then law partner, who becomes Justice Brandeis. And the two of them are calling out the press for transgressing what they call the, quote, obvious bounds of propriety and decency and for being gossips and for profiting from gossip. And they are fussing about technology. The article is the thing that we all read that ostensibly helped to shape some kind of new legal claim for damages.
Dahlia Lithwick: You note I love the sentence that law of you is still read and taught as seminal and brilliant and famous and historic and a landmark for the foundation for nearly every single privacy related right that we have in modern times. But as you say, what the heck does it all mean? So I wonder if you could both walk us through this really seminal Law View article. I mean, I read it, I think maybe in three different classes in law school. And whether it did the work of putting meat on the bones of the notions of privacy you just talked about.
Speaker 2: Sure. A lot of the article focuses on the right to be, let alone, which was a notion percolating in courts back then. And you’re right that the article really very much focuses on the idea back then, perhaps as shown in part by the Marion Manolas story, that technology is out of control, that people, particularly journalists who had that technology, could use it in ways to invade privacy.
Speaker 2: So it is very much this media focused Law Review article suggesting that people like Pulitzer were going beyond the bounds and something needed to be done in law. And so they write this in 1890. Early cases suggest a right to privacy in letters, in nudity, in those sorts of things, even before 1890. But then with this article, eventually courts really began to embrace this as one of the foundations of privacy law in the United States. And it is very interesting that that Warren and Brandeis were very much focused on media as opposed to the types of privacy that a lot of people are thinking about today, particularly.
Dahlia Lithwick: And one of the things you point out, and this comes up time. In time again in the book. Is that the same Justice Brandeis who famously says, you know, sunlight is the best disinfectant, throw open the doors, transparency is good. He has his own secrets to protect, as does Sam Warren. And this is such a through line in the book. It’s also a through line. I think when you talk about Jefferson and Hamilton is that people can write really lofty sentiments about the need to know and the need for transparency and the need for checks on government by the media. And then they can just turn around and say, Oh, but not about me.
Speaker 2: Yeah, that’s right. It’s interesting to go back in time and take a look at some of the other letters. So some of the other language that we don’t really know about, including so many of these people, these men would suggest to others, please burn my letters or they would destroy their own letters. So that those sorts of things would not get out. And I think you see that sense of privacy and things like that. So in letters and that sort of thing, even in Brandeis opinions, even though we recognize him for that. Sunlight is the best disinfectant line.
Speaker 2: You certainly see he was very concerned about privacy and concerned about privacy in letters. He was concerned about privacy in wiretaps, of course. So I think that their sensibility about their own privacy interests does leak into some of the opinions that they wrote. And so if you’ll look for it, it’s there. And so even though there are lines that celebrate expression and openness in government and otherwise, there’s still that sensibility. There’s still that privacy base pushback that says, Yeah, we can go really far, but just not too much.
Dahlia Lithwick: And it’s so striking. I really sensed it when you’re talking about Jefferson and Hamilton on the one hand. Right. They’re terrified. They are thinking about the Star Chamber in England. Publishers are losing their ears in their noses. They’re losing appendages for writing truthful things. And so we’ve got these, again, lofty framers who are enshrining freedom of speech and freedom of the press right into the Bill of Rights. And at the same time, they are writing these horrific things, often under pseudonyms. They’re not folks who are being called out about their ideas. They’re being called out about their most intimate, often sexual conduct and financial conduct.
Dahlia Lithwick: And then they’re saying again, no, I have the right to write this stuff. This is essentially a matter of public concern. But don’t write this stuff about me. And I guess if I connect it to even today, how some of the justices can write these incredibly poignant and powerful generalized claims about the press and then turn around and say, But you’re all Cretans and stay off my lawn. And I just keep finding myself as I read the book, snapping back to that, how does anybody reconcile this as a matter of law and policy when ultimately it feels like it is just shot through with complete hypocrisy?
Speaker 2: Yeah, it is really interesting. So as they’re debating the First Amendment, there was the question, when we say freedom of the press, do we mean that the press has the ability to report anything that the press wants, including, quote, instances of male conduct, which meant bad male behavior at the time. And the decision was that even though there’s freedom of the press in the First Amendment, of course, that sort of information would not be protected. The privacy in that male conduct was more important than revealing it to the public.
Speaker 2: It’s precisely the same clash that we deal with today in this sense. How far do we get to go to report instances of male conduct or otherwise without been invading the privacy of someone who is a public official or not? So in a lot of the instances today, a lot of people who have information revealed about their private lives are not public officials or public figures, just everyday, regular people who’ve been outed in some way on social media.
Dahlia Lithwick: So in the end, one of the things that also really I think pulses through this book is that this is ultimately a debate about power. And by the time you get to Elon Musk and by the time you get to Hulk Hogan and Peter Thiel, in a lot of ways it’s still about power and markets and claims about privacy that feel still super gendered to me.
Speaker 2: So in what sense do you find it gendered? I mean, for me when I read these cases and I really want to go back and take a look at this to see if I’m right. But very often in law books like the restatement, for example, you do find women used in a particular way. And the suggestion very often in especially the old cases, that certain women need to be protected. And and yet in the newer cases, perhaps a greater lack of understanding about women particularly, and how devastating some publications about them can be, like nude photographs, for example. So that clash feels very gendered to me.
Dahlia Lithwick: I’m trying to think of the flower iris and her collarbone. I think you mention that so many of these cases involve women who are, in some sense, commodities. There’s a way in which their images are products and also they are appendages of their fathers and husbands. And I guess that’s what I mean when I say gendered, because time and time again, the howling outrage is because a woman’s in tights or collarbones or ankles or 13 year old love affairs with powerful men are being surfaced. And it’s because they’re not fully realized autonomous women in some way.
Speaker 2: When you talk about the collarbone, that’s a case involving young woman, 17, whose image was used to market flower. So it was used in an ad in a poster actually for flower. She was called The Flower of the Family. That image, it was sort of a. Boudoir Shot of the Day was meant for her boyfriend. Not for the general public. She was shocked, just like Marianne Manila, to see that image in ads and the courts response. Back in the early 1900s was, Hey, you should feel privileged that you were pretty enough to be used in an ad. This is actually a compliment, young lady. You just be happy and be pretty and recognize that society thinks you are worthy in that sense.
Dahlia Lithwick: Can you explain the notion of truthful libel? Because I do think we understand a lot of the concepts that you lay out kind of intuitively. But truthful libel is probably a concept that a lot of listeners haven’t thought about.
Speaker 2: Yeah, so we say that Law Review article from 1890, The Right to Privacy, written by Sam Warren in Louis Brandeis. We think that was really the beginning of privacy in the United States. And it was, again, because courts began to pick up on that and would cite to it. And even in 2022 they do. But back before 1890, there was this notion at the very beginning of the United States that many courts called truth the libel. And the idea was that libel is something that’s reputation harming.
Speaker 2: And so, therefore, if someone said something false against you, that would be reputation harming. But if someone said something truthful about you that revealed some deep secret, some maybe an embarrassing medical condition or something like a love affair outside of marriage, that sort of thing, even though it was truthful, could also affect a person’s reputation within society. And so therefore, the court didn’t care if the information was true or false.
Speaker 2: And so very often in court, we think about truth as being the defense to a libel. Back then, truth just helped prove libel. And what courts would say back then is the greater the truth, the greater the libel, meaning the more the information is, in fact, truthful, the more information that someone had a love affair outside of marriage is truthful. The more the information that someone had a child outside of marriage back then is truthful, the more it can harm one’s reputation, even so. And so that’s the idea of truthful libel. And that’s why I make the argument that truthful libel is very much hand in hand with the right to privacy that we think about today.
Speaker 2: It’s that same idea when people report really private things about us. And when I say report, what I really mean is post medical information, post medical files, post nude photographs, those sorts of things. Then off limits today. And they’ve been off limits really since the time of this notion of truthful libel, really intensely personal information. The greater the truth, the greater the libel is what courts used to say.
Dahlia Lithwick: And if we’re thinking in terms of this pendulum swing between courts that tend to be speech and press protective and then privacy protective, it’s so braided in with technology. And one of the things that you write, I think we’ve flicked at this with Abigail Roberson in 1900 and her beautiful collarbone. But one of the things that you write that I think is just really central to where we are even now, is that it’s the speed of the press and images that are the drivers of anxiety.
Dahlia Lithwick: And so in the 19th century, the reason that people start thinking in different ways about privacy, I think you said this again about poor Abigail, is that there are images, there are drawings that seem very invasive of personal privacy. There’s also a sense in which there’s a daily press it’s happening, I’m going to say, at the speed of light, I guess, than it really was the speed of light, and everyone’s consuming it again. Those are anxieties that we are absolute liberal speed and sort of graphic, granular imagery are the things that are driving anxiety today. So it does feel as though what’s old is new again, and that what we are really worried about is the speed of dissemination and then how graphic the images really are.
Speaker 2: Yeah, I think that’s right.
Speaker 2: And we go back then to the Marion Minallah story, and that is one of the stories that Warren and Brandeis write about in the right to privacy. So they mention that story. It was certainly important to them. And today, when you read cases in which courts embrace privacy and say that privacy is just fundamental, much more so than freedom of expression in certain cases, they do it in that same sort of language where there’s real worry very clearly about technology of the day.
Speaker 2: And literally courts have said this thing called the Internet is so troubling, the ability to publish things instantly in that way, to invade privacy and otherwise. So also defamatory speech in that way. We need to do something. We need to recognize a privacy right in tort that we haven’t recognized before.
Speaker 2: So you see in law today precisely what Warren and Brandeis wrote in effect in 1890 about that technology, about these cameras suddenly out of the studios today, it’s the Internet where most people have access and can publish anything to the world with a click and those sorts of parallel worries.
Dahlia Lithwick: One of the things they did want to probe was you describe this brief, halcyon moment in the 1920s where journalism is getting professionalized. The American Society of Newspaper Editors is drafting sort of national canons and national standards. I think that chapter is called Be Decent. There seems to be this brief honeymoon period where the industry itself is drawing its own lines about exactly the tension that is not, as you say otherwise. It’s just being worked out in courts and legislatures in generally pretty crappy ways. And then we have this brief, glittering moment where it seems as though the industry is going to police itself.
Dahlia Lithwick: And I guess I wasn’t completely sure whether you were saying we could return to those golden days or whether it was just a moment in history, a second in history. It didn’t last very long where there seemed to be a kind of universal agreement that was, I think, honored, even with presidents and their affairs, literal affairs, that there was a sense that journalism knew what that line was intuitively and kind of walked it.
Speaker 2: Yeah, that’s right. I mean, a lot of people would say that that line was far too protective of presidents. And one of the interesting things from the 1920s, when newspapers began to embrace this code of ethics, is that one of the reasons they did it was because President Warren Harding wanted them to, and he was a former journalist. He had these ethics codes on his wall of his newsroom. And so, therefore, he lobbied journalists to embrace an ethics code. And, of course, he had a secret baby. So there was a real reason why Warren Harding wanted journalists to do that. And certainly then nonetheless, journalism recognized that it was important to draw ethical lines. Some of them with regard to privacy. At some point, information is going to be too privacy invading to report. And there was that embrace of that. And then came Watergate, and there was this real love affair between law and journalism in that way.
Speaker 2: Today. Anyone can publish. And so when we say freedom of the press, how we define the press is deeply intriguing, how anyone can express themselves online. And so I don’t know. I would like to think that it would be possible somehow to at least teach young people ethics in high school or ethics of production, of publishing in high school or in college, just so that they understand that truth isn’t necessarily the most important thing in journalism. That, in fact, journalists know an awful lot of truthful things that they don’t report, and that maybe I think that a return to those sorts of days.
Speaker 2: And I think that journalists who abide by ethics do this every single day, even today in 2022. It’s just other publishers who don’t understand that there are these rules and a fact that ethics rules that restrain some sort of reporting that are actually far more restrictive on journalists than the law is.
Speaker 2: So I don’t know that we could ever return because we have so many publishers out there. But my worry is that if we don’t return to that sort of time, at least in in some sense, you will have courts responding in the way they do. And the way courts respond has often been to restrict really important reporting on privacy grounds, simply because courts have said the media is out of control. And that’s really worrisome for me.
Dahlia Lithwick: I mean, you could draw a straight line between that and, say, the Facebook oversight board. Right. Which you talk about with some confidence, probably more confidence than we would expect of somebody who’s been monitoring these issues. But I think that the genesis of that confidence is if we don’t figure out a way to police ourselves in all of these new platforms, the law is going to come down like a hammer and it’s going to be too restrictive. Yeah, I think that’s right.
Speaker 2: That’s the really worrisome thing. And it’s not that I think that the oversight board is going to make everything wonderful on Facebook. My point is just that if the publisher can draw some sort of line, if the publisher can say, hey, we’re going to reserve the right to remove this sort of image, we’re going to reserve the right to remove this sort of person, then it will inform others about this.
Speaker 2: And I talk with students. I talk with members of the public all the time. And very often they are really shocked to hear that there are these ethics codes in journalism. So they’re really shocked about that because they really believe that anything truthful is published by people out there. And so the more we can talk, I think about those sorts of guidelines, the better off publishers, media, broadly speaking, will be today. And I think the less concerned courts will be about embracing privacy in a way that can really impact the public’s right to know about public officials in particular. Also some public figures, famous actors and such.
Dahlia Lithwick: It’s funny because you just mentioned and we should talk about the love affair kind of ends with Watergate with the Vietnam War, a press that was incredibly protective of JFK and his private life suddenly roars back into action after Watergate. I’m thinking in our lane about the Woodward and Armstrong book, the brethren that.
Speaker 2: Really.
Dahlia Lithwick: Cracked open the secrecy of the Supreme Court. And one of the things that I was thinking about, again, because I am very concerned about secrecy around the Supreme Court, is that there has to be a difference between robust coverage of institutions, which is the thing that the new journalism of the sixties was doing right. You know, covering the presidency, covering the boundaries of executive privilege, covering the boundaries of what the court could keep secret about itself.
Dahlia Lithwick: And that is also a really tricky line to walk, right? Because sometimes that involves disclosing intimate, personal things. Sometimes, I mean, I always think about the press not reporting on then Chief Justice Rehnquist use of back pain medication and how it affected oral arguments. So it’s a really tricky line, how you cover institutions and hold them to account. And when that slides into intimate personal detail, that’s of course, deeply damaging.
Speaker 2: And that’s where that ethics line is drawn. And when journalists would talk with their editors and maybe even the. NEWSROOM about what was appropriate. Now, I suspect back then there’s a lot of information at the court that a lot of people know and haven’t reported. And so what that suggests, though, is that journalists who know that information make a judgment call about whether it’s just too private, involving particular individuals. And maybe the question there is and oftentimes this is the way it is in journalism, if that piece of information then affects the way the institution works or. There’s a direct correlation between the two in some newsworthy sense that then the information should be reported.
Speaker 2: Certainly there are defamation concerns generally, but then also that I think is one of the guiding forces of journalism. As you know, I’m a former journalist. I taught journalism at the University of Illinois, taught journalism ethics at the University of Illinois. And that’s one of the things that that journalists will often say is if that private information somehow pushes up against what that individual is doing in public life, then it should be reported. And if not, maybe it’s just too private and we’re not going to touch it.
Dahlia Lithwick: I feel like we have to talk about the thing that my listeners are thinking as they listen to you, which is, Amy, want to talk about me and my privacy in my data, my privacy in my address, my privacy in your bulldog that Amazon believes you to have. And really, increasingly with concerns around my privacy and my fertility app and my privacy in my pregnancy materials that I keep online, I think that one of the things that and you’ve noted, there are drones everywhere. Every doorbell on your street is watching you.
Dahlia Lithwick: And I keep thinking about something that Justice Scalia used to say, which is that our privacy constricts as our expectation of privacy constricts, it’s entirely self-fulfilling. And the more we think that everybody is watching us, there are drones overhead. Everybody has access to our information. Of course, if I post something on Facebook, it’s going to live there forever. The more we have no expectation that our privacy is protected. And so I’m very curious what you think about the fact that people are simultaneously howling about their loss of privacy. Justifiably, our information is being bought and sold as we tape this, but also the fact that we seem to have no concern for privacy and put everything up on TikTok and Instagram.
Speaker 2: So one of the things that I really urge everybody to do is to do what I did, like you suggested, ask for their data from these companies. So I asked for my data from Amazon. Amazon knows I have a bulldog. Some of these data brokers have much more interesting data that they’ve collected on me. They suggest that I’m a fast food grower, for example, and that sort of information, that’s not true. But my husband is. So, you know, there you go. And so one of the things is that that people don’t really understand the sorts of stuff that these data brokers have on them. So the more we can reveal that to individuals, I think the greater pressure they will put on legislatures to make some sort of change that impacts their privacy, that protects their privacy more.
Speaker 2: And the other thing is that even as people post stuff on social media and otherwise today, because courts are so worried about privacy, you see courts suggesting you posted it on social media, but you only intended it to go to your friends and family. Therefore, we’re going to give you privacy in that information.
Speaker 2: So even as people post, I think one of the reasons, again, that many people do reveal so much is that they don’t really fully understand what’s happening with that data. You have courts that do understand and courts are suggesting suddenly when five years ago, ten years ago, they would say anything on the Internet, fair game, no privacy. And that within the past couple of years, courts have said, hmm, if you intend that information on Facebook to only go to a certain number of people, sorry, data brokers, you can’t have that now. We then work that in a way that would protect that data. I’m not sure. But it is interesting that courts are remarkably protective of even that sort of thing.
Speaker 2: And just within the past few months, the US Supreme Court suggested that there’s some sort of privacy even in our home addresses. And that should show you, I think that’s a really great example of judges and justices looking at things in a very different way than regular people do.
Speaker 2: I assume regular people would say, hey, my home address, everybody knows where I am. That’s not private. Judges and justices are very worried about doxing and what can happen to people who go against the crowd. For some reason, their home address can be published and that in those sorts of cases, maybe we do want to protect privacy. And maybe there you also see a little bit of leak from the justices recognizing that if their home addresses get out in some major way, that there’s real danger there. And so even as we post things on the Internet more generally, that shows you how courts are increasingly concerned about the sorts of things that are out there. And recognizing privacy, interests and stuff that we would never think was private in the past.
Dahlia Lithwick: So interesting because I’ve been writing about that same theme of privacy for me, but not for the. With respect to the justices information for quite some time. And for me, it’s really remarkable. If you read Dover, read the referendum case where suddenly the justices are saying we people’s information can be online and, you know, protesters will come to their homes and the chief justice worrying about a GPS device because it could be attached to my car. What now? That’s different. And there’s a way in which it’s a little bit chilling. And I know you talk a lot about how judges are coming round on some of these things, but it is chilling back to that original thing we talked about that it really only feels like it’s landing at home when it quite literally lands at home.
Dahlia Lithwick: I remember one of the first cases I covered, Amy, was the justices thinking about whether you have an expectation of privacy in a Greyhound bus when officials search your luggage in the rack overhead. And I remember sitting in the chamber thinking, oh, come on, how many of you have been on a Greyhound bus, certainly in the last 50 years. But I do think having it not be an abstraction is really useful.
Dahlia Lithwick: I feel like we can’t because this is what you and I think about, not talk about the Supreme Court and privacy and leaks because it has been a year of leaks, leaks to Nina TOTENBERG about whether Justice Gorsuch was masking and joint statement from Justice Gorsuch. And Sotomayor is saying nothing of the sort where dear friends leaks about Ginni Thomas, texting Mark Meadows about setting aside the election results, health of the justices, Clarence Thomas apparently seriously ill and no information provided to the press. And of course, all of this culminates in early May with a draft of an entire opinion in Dobbs the abortion case.
Dahlia Lithwick: Do you have a framework either sort of from the book or from your work, thinking about the court and privacy of how to balance this institution’s justifiably serious prerogatives around its privacy and its confidentiality and how it makes decisions and the way the justices trust each other and public trust in the institution, by the way, which is also, I think, shored up by secrecy and the public’s right to know really important stuff, like maybe the way for the justice wanted to set aside the election results. Is there a way to think about this or analyze this for an institution that is unique in government the way the court is in having to be oracular and secretive by definition?
Speaker 2: That’s a really interesting question, and I’ve struggled with it as well. I think if you asked me that question when I was working in journalism, I would say that my interest in protecting the institution itself was just about zero, that we care who the justices really are. We care that they’re doing certain things and maybe writing opinions in a way that reflect those interests in cutting back on people’s rights, even as they themselves then go about doing those things. So journalistically, I think we just can’t care about the institution itself.
Speaker 2: Then you go to law school and you recognize much more the importance of precisely what you said the institution and the importance of the inner workings of the institution. And how this sort of sausage is made is not really part of what the public needs to know. And I see that and I think about a lot of the public records laws suggest that there’s privacy in committee deliberation, for example. So as ideas are thrown out there, as here, certain opinions are written in the hopes that others will join them.
Speaker 2: I think that’s something that a lot of people really don’t understand happens behind the scenes in a necessary way, as you’re suggesting, in order to get the work done that is necessary. And if people knew that anything that they wrote would in fact be posted on social media or appear somewhere else, they would be really hesitant to share really critical, important things. And that’s my concern. I think that’s really the clash between the.
Speaker 2: Two ideas that we do want to protect that secrecy. We have protected that sort of deliberation in other ways and certainly at the court. But at the same time, I think if you ask somebody on the street, they would 100% say, we care. We want to know what those early opinions look like. We want a voice in what that opinion ultimately says. And so it’s a really wonderful example, I think, of that difficulty between the public’s right to know and what might be actually more important than that a privacy sense or in an institutional secrecy sense, in whatever way you might define that.
Dahlia Lithwick: I feel like that’s such an incredibly nuanced and thoughtful answer to the question How can Justice Brandeis right. Sunlight is the best disinfectant. And also right. You know, get off my lawn. And it’s the answer to the question, how can the justices continue to write soaring rhetoric about press freedom and also never stop complaining about the press? Right. That’s it. That’s exactly the line you’re describing.
Speaker 2: That’s right. And it’s the way it has been from nearly the dawn of time in the United States.
Dahlia Lithwick: I did want you to talk for one last second about what legislatures are doing, because we’ve talked a lot about the courts and we’ve talked about sort of personal regulation. But we’re certainly seeing and I think you’re right, it’s in response to the same doxing and revenge porn we are seeing. You know, California is now regulating allowing minors to erase their own past social media posts, kind of echoes of Europe’s general right to be forgotten. The statutes around revenge porn cities, banning facial recognition technologies. It does seem as though this is something where, again, I think legislatures could work hand in glove with individual citizens, as you say, and with the courts, to try to put up more meaningful boundaries. Yeah, that’s.
Speaker 2: Right. And Congress is certainly not doing it. And that’s what I think is very interesting, that really it’s state legislatures taking action here, trying to protect data in certain ways. Illinois was one of the first with a protection for biometrics. Same thing happening in California in those very interesting ways, in ways that that in the past, again, we would never think would be a privacy concern. So California’s law, for example, will protect the way one walks. And so if you think about that notion, how the way we walk is something we do in public every day. And yet that sort of gait apparently can be very unique to us. And so that’s one of those instances of biometrics that California is attempting to protect and other states are moving to to do that as well.
Speaker 2: One of the interesting things is bringing it back to technology. We don’t really know the next frontier of technology. Is it going to be virtual reality? Can it be virtual reality in some way? That captures our images? And I think judges and legislatures are thinking about this virtual reality outside in some way where some nefarious person captures our image and allows someone to walk around us in a virtual reality sort of situation and touch us.
Speaker 2: And that maybe then those sorts of very surprising pieces of legislation aren’t all that shocking when you’re thinking about where those concerns about technology could in fact be going and how they could invade privacy in ways that we don’t even think about today, just like Warren and Brandeis didn’t think about in 1890, and yet trying to decide cases in ways that can protect privacy in a broader sense in the years to come, even without knowing what’s next on the horizon. That’s a perfect.
Dahlia Lithwick: Segue to the question that I wanted to land on, which is you land on dignity in your epilogue. And I always think about Justice Ginsburg saying that if she could have codified dignity, a dignity right into the Constitution, she would. And on the one hand, it feels really, again, fuzzy and slippery and feelings ball like it doesn’t feel as though it’s got any heft to it. But I think it goes back to be decent, right? Like it does feel like the place that you land on the one hand is hard to codify. But if you can’t think in terms of individual dignitary privacy, liberty, interests in a meaningful way, then all of everything that we’ve just talked about for the last 40 minutes can’t be fixed yet.
Speaker 2: That’s right. Even though it is this, how do we even define a word like. Dignity. I just get the sense that if you gave that sort of an instruction to the jury, they would know that an individual’s dignity had been violated through the publication of a nude photograph of that person or through the publication of a medical chart with that person’s medical information on it.
Speaker 2: The law does this so much as you know, right? Negligence. What is reasonable? How can we really decide what is reasonable or not? How can we really take a look at how we would define a word like dignity? Well, juries do that sort of thing every single day. Judges do it as well. And so I’m just less worried about a definition for it being at least somewhat confident, knowing that even from the very beginning of the United States, that sort of ideal was there pushing up against the right to publish certain things. And it’s there in journalism as well. So in a lot of the ethics codes in journalism. Dignity is one of the things that journalists are supposed to consider when they weigh whether or not to publish something.
Dahlia Lithwick: Amy Gajda is Tulane Law School’s class of 1937 professor of law. She is recognized around the world for her expertise in privacy, media law, torts, the law of higher education. And her book that we’ve been talking about today is called Seek and Hide the Tangled History of the Right to Privacy. It was published by Viking in 2022. And I again, just want to tell folks, if you are looking for something to read this summer, it is just a rollicking, fun read about a whole bunch of stuff you didn’t know in no small part because very famous and powerful people didn’t want you to know it. But I think that. Amy, thank you so much. I’m not sure that you would lay claim to having all the answers, but I am sure that you would say you are asking really urgently important questions and doing it in a powerful and really, I think, accessible way. So thank you for joining us to talk about it and think about it with our listeners.
Speaker 2: Thank you for having me. And that was beautifully put as usual. Thank you. And that is a wrap.
Dahlia Lithwick: For this episode of Amicus. Thank you so very much for listening, and thank you always for your letters and your questions. You can keep in touch at Amicus at Slate.com, or you can always find us at Facebook dot com slash Amicus podcast. Today’s show was produced by Sarah Burningham. Alicia montgomery is vice president of Audio and Ben Richmond is senior director of operations for podcasts at Slate. We will be back with another episode in two short weeks. And until then, do take good care.
