The "public concern" test
Volokh, Eugene
VOLOKH at law.ucla.edu
Thu Nov 1 16:35:54 PDT 2007
Dan is right about how the cases would come out under model 2; and I also see little lost in banning ugly bride contests as such. But the trouble, it seems to me, is in coming up with any clear and sound distinction between public concern and private concern.
In particular, consider what the Court has done about this. With apologies for quoting from myself (in an article I wrote a few years ago that touches on this, http://www.law.ucla.edu/volokh/speechip.pdf):
In Connick v. Myers, the Court held that the First Amendment generally doesn't protect government employees from being fired for speech unless the speech is on matters of public concern. In theory, this may seem like a plausible conclusion, but the Court then proceeded to hold that speech among employees in the district attorney's office about "the confidence and trust that [employees] possess in various supervisors, the level of office morale, and the need for a grievance committee" was "not of public concern." This hardly fits the normal understanding of "public concern" -- we wouldn't be surprised or offended, for instance, if we saw a newspaper article discussing morale at the district attorney's office.
Government employers may well need to have considerable flexibility to fire employees for speech that the government as sovereign cannot punish through criminal or civil liability. But even if Connick was correct to uphold the government's action, this simply shows that "public concern" isn't the proper test there.
Likewise, in Dun & Bradstreet, Inc. v. Greenmoss Builders, the Court held that punitive damages should be allowed in libel cases even without a showing of "actual malice" when the libel wasn't on a matter of a public concern; and again, this seems like a plausible conclusion. But the Court went on to hold that a report about a company's bankruptcy wasn't a matter of "public concern," something that would surprise the company's employees, creditors, and customers, as well as local journalists who might well cover the bankruptcy of even a small company in their small town.
Similarly, in Bartnicki v. Vopper, the plurality said, "We need not decide whether that interest [in preserving privacy] is strong enough to justify the application of § 2511(c) to disclosures of trade secrets or domestic gossip or other information of purely private concern." This suggests that trade secrets are either per se "information of purely private concern" or at least constitutionally on par with "domestic gossip or other information of purely private concern," rather than with the "negotiations over the proper level of compensation for teachers" that the Court described as being the general topic of Bartnicki's conversation.
Yet trade secrets can often be matters of significant public concern to a company's employees, customers, neighbors, or regulators. It would be a shame if the Court's casual, offhanded dictum led lower courts to quickly uphold the ban on third-party publication of trade secrets based on an unsupported assertion about their inherent "private concern" status.
The one lower court case that applies Bartnicki to trade secrets, DVD Copy Control Ass'n v. Bunner, similarly erred in deciding what constitutes speech on matters of public concern. Bunner had published on his Web site a computer program that decrypts encrypted DVDs; the California Supreme Court assumed, given the case's procedural posture, that the program was derived from algorithms that were plaintiffs' trade secrets, and that had been improperly leaked to Bunner.
The court then went on to hold that, though publishing computer source code is protected by the First Amendment -- because such code "is an expressive means for the exchange of information and ideas about computer programming" (computer professionals can and do read such code to understand how an algorithm works) -- Bunner's publication could be enjoined. Bunner, the court reasoned, "did not post [the source code] to comment on any public issue or to participate in any public debate," and "only computer encryption enthusiasts are likely to have an interest in the expressive content -- rather than the uses -- of DVD CCA's trade secrets." Therefore, in the court's view:
"[d]isclosure of this highly technical information adds nothing to the public debate over the use of encryption software or the DVD industry's efforts to limit unauthorized copying of movies on DVD's. . . . The expressive content of these trade secrets therefore does not substantially relate to a legitimate matter of public concern."
But as the court itself acknowledged, "computer encryption enthusiasts" -- engineers, academics, and others -- are likely to be interested in this sort of encryption technology; and the First Amendment shields ideas that relate to science as well as politics. The content of the trade secrets does relate to a legitimate matter of scientific concern; it may well be of interest only to a small section of the public, but that's equally true of many important facts.
The source code may also be relevant, contrary to the court's assertions, to debate about encryption policy and intellectual property policy: For instance, when deciding what legal rules should protect intellectual property, policymakers and citizens might well want to know whether particular technical protections are easy to evade or hard to evade, and the source code of such an evasion mechanism is important evidence on that score. But in any event, the code is clearly of legitimate concern to computer scientists and engineers, as well as to people who are thinking about encryption policy.
What's more, if the court's argument is accepted, then courts would be allowed to treat a wide range of scientific information published in scientific journals as being merely of private concern and thus less constitutionally protected. After all, even if some source code -- or for that matter a textual discussion that was based on the secret source code -- was published as part of a scholarly article on encryption, it would still be of interest "only [to] computer encryption enthusiasts." The subject matter of the speech would still be the same, and would thus be equally unrelated "to a legitimate matter of public concern." Courts would thus be able to enjoin such supposedly unimportant speech, either if the speech stems (directly or indirectly) from trade secrets illegally leaked by others, or perhaps also when the allegedly low-value speech implicates some other government interests.
Put together, then, Connick, Dun & Bradstreet, and Bartnicki illustrate that the Court has not been very good at deciding what is a matter of "public concern" and what isn't; and Bunner suggests that this will continue to be so as lower courts apply a "public concern"/"private concern" distinction to trade secret cases. And this, I think, is no accident. What is or is not a matter of legitimate public concern is a highly subjective judgment. Most such matters of taste are left to individual speakers and listeners to determine; courts generally don't decide what's "mere entertainment" and what's ideological commentary, or what's vulgarity and what's lyric.
Likewise, it shouldn't be for courts to decide what is a matter of "public concern" and what isn't. When judges do make such decisions, the decisions may tend to simply reflect their judgments about who should win or lose in this case, rather than more principled judgments about the actual value of the speech to the public.
Eugene
> -----Original Message-----
> From: religionlaw-bounces at lists.ucla.edu
> [mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of
> Conkle, Daniel O.
> Sent: Thursday, November 01, 2007 4:00 PM
> To: Law & Religion issues for Law Academics
> Subject: RE: IIED and vagueness
>
> As for Eugene's models 1 and 2, and his preference for model
> 1, I think of two examples I often use in teaching Hustler:
> (a) suppose Falwell's mother had been the IIED plaintiff in
> the Hustler case with respect to the very same parody (unlike
> Falwell, not a public figure plaintiff, but presumably still
> a matter of public concern) and (b) a New York case (I can't
> remember the name) permitting IIED liability against radio
> disc jockeys for broadcasting the name and place of
> employment of a young woman whose wedding picture had run in
> the local newspaper and whom the disc jockeys declared the
> "winner" of their "ugly bride" contest (not a public figure
> plaintiff, and not a matter of public concern). I assume
> Eugene would preclude liability in each case, including the
> "ugly bride" case; model 2, by contrast, would permit
> liability in the "ugly bride" case but not in favor of
> Falwell's mother. It strikes me that model 2 is preferable;
> why shouldn't the alleged "ugly bride" be pe!
> rmitted recovery for the disc jockeys' outrageous (and
> heartless) speech at her expense?
>
> Dan
> *******************************************
> Daniel O. Conkle
> Robert H. McKinney Professor of Law
> Indiana University School of Law
> Bloomington, Indiana 47405
> (812) 855-4331
> fax (812) 855-0555
> e-mail conkle at indiana.edu
> *******************************************
>
>
>
> -----Original Message-----
> From: religionlaw-bounces at lists.ucla.edu
> [mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of
> Volokh, Eugene
> Sent: Thursday, November 01, 2007 6:16 PM
> To: Law & Religion issues for Law Academics
> Subject: RE: IIED and vagueness
>
> I think that (1) otherwise protected speech (i.e.,
> speech that falls outside the exceptions, and any new
> strict-scrutiny-justified
> exclusions) should be as immune from IIED liability as from
> other liability. But (2) as a fallback, I would say that at
> the very least speech on matters of public concern should be
> so protected. I think item 1 is preferable for various
> reasons, including how hard it is to enunciate any rule
> distinguishing speech on matters of public concern from
> speech on matters of private concern, and in particular how
> badly the Court has botched past decisions applying this
> (e.g., Connick, Dun & Bradstreet, the dictum in Bartnicki
> which says that trade secrets are not matters of public
> concern). But 2 is the least that should be provided.
>
> My sense, incidentally, is that the dominant (in my view,
> correct) view among the lower courts is that otherwise
> protected speech on matters of public concern should be
> protected against IIED liability; the view (in my view,
> incorrect) among the few lower courts that have considered
> the question as to private-concern speech is that private
> concern speech should not be so protected -- so the emerging
> pattern in lower courts is 2.
>
> As to telephone harassment laws, it depends on the
> law; but as a general matter, I think there's some room for
> the Rowan exception -- when the speech is said to a
> particular person, who has already said he doesn't want to
> hear it or (perhaps) who almost certainly doesn't want to
> hear it even if he hasn't said so, that person should be
> entitled to cut off communication to him so long as this
> doesn't cut off communication to others. I don't think this
> should apply as to speech in public places that is visible by
> all passersby; and even if it is so applicable, and a law
> restricting such speech would be constitutional, it would
> have be framed to be limited to such speech, rather than
> using the broad terms of the IIED tort.
>
> Eugene
>
> > -----Original Message-----
> > From: religionlaw-bounces at lists.ucla.edu
> > [mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of
> Brownstein,
> > Alan
> > Sent: Thursday, November 01, 2007 2:31 PM
> > To: Law & Religion issues for Law Academics
> > Subject: RE: IIED and vagueness
> >
> > Just to be clear here, Eugene. Leaving vagueness aside for
> the moment:
> >
> > Are you arguing that all IIED decisions holding defendants
> liable are
> > unconstitutional unless they fall within the conventional
> categories
> > of unprotected speech (or since they are content-based, unless they
> > can satisfy strict scrutiny)
> >
> > Are you arguing that all IIED cases holding defendants liable are
> > unconstitutional unless they fall within the conventional
> categories
> > of unprotected speech (or since they are content-based, unless they
> > can satisfy strict scrutiny) -- but only if they involve speech on
> > matters of public concern.
> >
> > Would an IIED claim be constitutional if it did not involve
> a matter
> > of public concern?
> >
> > Do you think the same analysis applies with regard to harassment
> > statutes (such as telephone harassment statutes)?
> >
> > I don't have an easy answer to these questions, but I admit
> that that
> > I am wary of having too much turn on whether speech is on a
> matter of
> > public concern and on declaring all IIED claims and harassment
> > prohibitions unconstitutional.
> >
> > Alan Brownstein
> >
> >
> >
> > -----Original Message-----
> > From: religionlaw-bounces at lists.ucla.edu
> > [mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of Volokh,
> > Eugene
> > Sent: Thursday, November 01, 2007 1:34 PM
> > To: Law & Religion issues for Law Academics
> > Subject: RE: IIED and vagueness
> >
> > (1) How does Hustler teach that IIED is a viable tort, as
> > applied to otherwise protected speech (or at least
> otherwise protected
> > speech on matters of public concern).
> > True, it didn't hold that IIED is impermissible as to otherwise
> > protected speech -- but did it ever hold that it is viable
> as to such
> > speech?
> >
> > (2) Defamation requires that a statement be factually false.
> > That's sometimes not easy to define, and often not easy to
> tell, but
> > it's much clearer than an "outrageousness" standard.
> >
> > (3) I say it again: The Court has repeatedly held that the
> > lower scrutiny applicable to time, place, and manner
> restrictions is
> > applicable only to *content-neutral* time, place, and manner
> > restrictions.
> >
> > Eugene
> >
> > > -----Original Message-----
> > > From: religionlaw-bounces at lists.ucla.edu
> > > [mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of
> > Steven Jamar
> > > Sent: Thursday, November 01, 2007 11:49 AM
> > > To: Law & Religion issues for Law Academics
> > > Subject: Re: IIED and vagueness
> > >
> > > Let me get this straight. We want a clear rule that
> > applies easily in
> > > all cases and so we just say let any speech happen
> because we can't
> > > ever tell anything with certainty.
> > >
> > > Sorry, Eugene, but the law hasn't ever been that way and
> > certainly is
> > > not that way in the free speech as you well know.
> > >
> > > Defamation is still excluded from protection even though
> it too is
> > > context dependent and would, under your test be overbroad. And
> > > Hustler teaches that IIED is a viable tort -- but not as applied
> > > against a public figure unless the standard of
> maliciousness is met.
> > > Well, here it is private people and the standard of
> > malicioiusness is
> > > certainly met.
> > >
> > > This is really more a time-place-manner restriction: you
> > can say what
> > > you want, but not in this setting.
> > >
> > > Steve
> > >
> > >
> > > On 11/1/07, Scarberry, Mark <Mark.Scarberry at pepperdine.edu> wrote:
> > > > But this is targeted speech. The protesters may not say
> > > explicitly and specifically refer to the dead soldier or
> the dead
> > > soldier's family, but the context makes the targeting clear. As I
> > > said, the protesters can do this anywhere else, and at any
> > other time.
> > > It's the proximity ot the funeral that makes it targeted and very
> > > similar to fighting words.
> > > >
> > > > Mark
> > > >
> > > > ________________________________
> > > >
> > > > From: religionlaw-bounces at lists.ucla.edu on behalf of
> > Volokh, Eugene
> > > > Sent: Thu 11/1/2007 1:47 PM
> > > > To: Law & Religion issues for Law Academics
> > > > Subject: RE: IIED and vagueness
> > > >
> > > >
> > > > But Cohen v. California made clear that "fighting
> > > words" require some individualized insult of the targeted
> > listener.
> > > Under the view you describe, any speech that may offend a
> group of
> > > people -- for instance, harsh public criticisms of
> religiosity, or
> > > Christianity, or capitalists, or whatever else -- to the
> point that
> > > they might start fighting could be punishable as fighting words.
> > > (True, it might not be quite as "outrageous," but it
> would still be
> > > fighting words under your definition.) Yet Cohen and Texas v.
> > > Johnson, it seems to me, reject that.
> > > >
> > > > Eugene
> > > >
> > > >
> > > > ________________________________
> > > >
> > > > From: religionlaw-bounces at lists.ucla.edu
> > > [mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of
> Scarberry,
> > > Mark
> > > > Sent: Thursday, November 01, 2007 10:46 AM
> > > > To: Law & Religion issues for Law Academics
> > > > Subject: RE: IIED and vagueness
> > > >
> > > >
> > > > Then I suppose I'd be inclined to argue that IIED
> > > as applied in this case is constitutional on Eugene's approach,
> > > because what the protesters were doing was very much like
> fighting
> > > words and should not be considered to be protected
> speech. I'm not
> > > sure the quote is correct, but I think H.L. Mencken said, "Every
> > > normal man must be tempted at times to spit upon his hands,
> > hoist the
> > > black flag, and begin slitting throats." I have to say that
> > if the law
> > > cannot somehow restrain these despicable protesters from
> inflicting
> > > such harm on grieving relatives of fallen soldiers, many of
> > us will be
> > > tempted. The protesters can hold their protests anywhere
> > else and any
> > > other time.
> > > >
> > > > On the theory that if one quote is good, two must
> > > be better, I'll add that if the law cannot prevent them
> > from doing so
> > > at a soldier's funeral then Mr. Bumble was right that
> "the law is a
> > > ass--a idiot."
> > > >
> > > > Mark Scarberry
> > > > Pepperdine
> > > >
> > > >
> > > > ________________________________
> > > >
> > > > From: religionlaw-bounces at lists.ucla.edu on behalf
> > > of Volokh, Eugene
> > > > Sent: Thu 11/1/2007 1:18 PM
> > > > To: Law & Religion issues for Law Academics
> > > > Subject: RE: IIED and vagueness
> > > >
> > > >
> > > > I think the IIED tort is unconstitutionally
> > > vague on its face, as applied to otherwise protected speech.
> > > (I don't think there's any First Amendment problem with
> > applying it to
> > > nonspeech conduct.) The arguments in favor of allowing facial
> > > challenges -- the need to avoid unconstitutional chilling
> > effects on
> > > parties who aren't yet before the court, and who might never come
> > > before a court for fear of ruinous lawsuits -- seem to
> > squarely apply
> > > here.
> > > >
> > > > Eugene
> > > >
> > > >
> > > > ________________________________
> > > >
> > > > From: religionlaw-bounces at lists.ucla.edu
> > > [mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of
> Scarberry,
> > > Mark
> > > > Sent: Thursday, November 01, 2007 10:03 AM
> > > > To: Law & Religion issues for Law Academics
> > > > Subject: RE: IIED and vagueness
> > > >
> > > >
> > > > I don't think there is any vagueness at all
> > > in the tort of IIED as applied to these funeral protests. I don't
> > > think the defendants were in doubt at all that what they
> were doing
> > > would inflict serious emotional distress and would be thought by
> > > almost everyone other than themselves (maybe even including
> > > themselves) to be outrageous. Wasn't that the point of
> the protests?
> > > >
> > > > Is Eugene arguing that the vagueness of
> > > IIED (overbreadth) as applied to speech renders the tort facially
> > > unconstitutional as applied to any speech of any kind? As
> > applied to
> > > speech that is not within a traditional exception to Free Speech
> > > protection (obscenity, fighting words, true threat, defamation
> > > actionable under NY Times v.
> > > Sullivan etc.)? Does potential application of IIED to
> > protected speech
> > > render the tort unconstitutional even when applied to
> > non-speech? How
> > > broad is the facial invalidity?
> > > It's been a while since I've read the Falwell/Hustler
> case, but if
> > > facial invalidity applies here, why would the Court have
> needed to
> > > look so carefully at the particular situation in that case? But
> > > perhaps I'm missing something here.
> > > >
> > > > I'd swim against the current and argue that
> > > IIED as applied to speech should be considered on a
> > case-by-case "as
> > > applied" basis, rather than using the typical overbreadth facial
> > > invalidity approach. Someone must have addressed this
> issue; cites?
> > > >
> > > > Mark Scarberry
> > > > Pepperdine
> > > >
> > > >
> > > >
> > > >
> > > >
> > > > -----------------------------------------
> > > > On 11/1/07, Volokh, Eugene
> > > <VOLOKH at law.ucla.edu> wrote:
> > > > > Isn't a restriction on "speech
> > > that is outrageous, and inflicts
> > > > > severe emotional distress, where the
> > > speaker knows there's a high
> > > > > probability that severe emotional
> > > distress will be inflicted"
> > > > > unconstitutionally vague, suffering from
> > > all three of the Grayned
> > > > > problems (risk of viewpoint
> > > discrimination in enforcement, difficulty of
> > > > > telling when one is complying with the
> > > law, and resulting deterrent
> > > > > effect)? "'Outrageousness' in the area
> > > of political and social
> > > > > discourse has an inherent subjectiveness
> > > about it which would allow a
> > > > > jury to impose liability on the basis of
> > > the jurors' tastes or views, or
> > > > > perhaps on the basis of their dislike of
> > > a particular expression." (I
> > > > > also think it's unconstitutionally even
> > > setting aside the vagueness, but
> > > > > as in many instances the vagueness is
> > > such an important problem that it
> > > > > makes it hard to do the rest of the
> > > constitutional analysis, since it's
> > > > > so hard to tell just what speech the law
> > > will restrict, even if limited
> > > > > to cases where plaintiffs are private
> figures.)
> > > > >
> > > > > Eugene
> > > >
> > > >
> > > > --
> > > > Prof. Steven Jamar
> > > > Howard University School of Law
> > > > _______________________________________________
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> > >
> > > --
> > > Prof. Steven Jamar
> > > Howard University School of Law
> > > _______________________________________________
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