Pictures of people having sex

[Eugene Volokh]

        I certainly sympathize with Prof. Dow's view on the matter -- indeed, a
surreptitious video of someone having sex seems so far removed from any
possible public debates, and so egregiously offensive, that we'd like some
way of suppressing it.  In my Freedom of Speech and Information Privacy
piece, http://www.law.ucla.edu/faculty/volokh/privacy.htm (text accompanying
notes 180-181), I acknowledge that the case for restricting this speech
seems quite strong.

        The danger is that such restrictions will have precisely the effect that
they seem to be having in this thread:  That they will be used as
justifications for far broader restrictions of speech that -- like reports
on someone's allegedly botched abortion -- may have a good deal more
relevance to debates about the moral propriety of abortion, the possibility
that abortions will lead to complications, or for that matter the moral
worth of the person getting or performing the abortion.

        While there may be a narrow zone of fairly uncontroversially
non-public-concern topics, the danger is that the vague, subjective "public
concern," "newsworthiness," or "legitimate public interest" test will flow
far beyond this zone; and as some of the private facts tort cases show, this
danger has materialized.  This risk may be enough to reject a "private
concern" exception and abandon the private facts tort altogether, and it is
certainly enough to demand that the test be rephrased as something much
clearer and narrower before it is accepted.

        It's tempting to pooh-pooh such "slippery slope" concerns, but the slippery
slope is a very real risk, and of course these concerns have helped mold
many of the valuable protections that modern First Amendment law provides.
For instance, we can all think of examples of entertainment that has no
connection to public issues, but Winters v. New York was right to conclude
that entertainment should be protected despite this, because "[t]he line
between the informing and the entertaining is too elusive for the protection
of [the] basic right [of free speech]."  If the word "fuck" were forcibly
expurgated from public debate, discussion would likely not be substantially
impoverished, but Cohen v. California was right to conclude that the word
should be protected despite this, because otherwise "no readily
ascertainable general principle [would] exist[] for stopping short of" far
broader restrictions.  If vitriolic, relatively nonsubstantive parodies such
as the one in Hustler v. Falwell were banned, "public discourse would
probably suffer little or no harm," but the Court correctly refused to
uphold such a ban, since it could find no "principled standard to separate"
them from speech that had to be protected.

        Likewise, the notion that otherwise protected speech should be restrictable
when it doesn't relate to matters of public concern strikes me as so
potentially broad and so vague that it deserves to be abandoned, even if it
would yield the right results in a narrow subset of the cases in which it
would be applied.

David Dow writes:

> consistent with marty's point: the case referred to by someone
> else (sorry,
> i get the digest, so i am not sure who it was) involving the male who
> videotaped himself having sex with his girlfriend and then showed
> the video
> to his friends did result in both an injunction against further screenings
> as well as damages. eventually the texas supreme court reversed
> the damages
> award b/c the girlfriend's theory was negligent infliction of emotional
> distress (on remand she amended her c/a to allege intentional infliction),
> and the texas supreme court held that there is no c/a for damages for
> negligent infliction of emotional distress.  855 sw2d 593 (1993).  but
> there was never any question as to whether the owner of the
> videotape had a
> first amendment interest that would shield him from damages, and i cannot
> imagine that the result would be different if CNN rather than the
> boyfriend
> had shown the video.
>
> -- d.dow