Freedom of Speech vs. People's Supposed Right To Hide Their Past:

In 1979 and 1980, Barry Treash -- then a vice-president at Beneficial Standard Life Insurance Company -- was involved in a kickback scheme that essentially defrauded his employer out of hundreds of thousands of dollars. In 1984, Treash was convicted of mail fraud and income tax evasion stemming from this scheme.

Would you do business today with someone who had been convicted of fraud twenty years before? I might; twenty years is a long time. But I’d be extra cautious, and I’d consider it valuable to know about the man’s past history.

In any case, Barry Treash is indeed in business now; he runs Readylink Healthcare, “a staffing company linking nurses to hospitals.” Treash got into a tiff with lawyer David Lynch (details here), and Lynch put up a note on his Web site soliciting clients who might be interested in suing Readylink. After further legal skirmishing, Lynch added extra pages that revealed Treash’s history.

So Treash turns around and sues Lynch for, among other things, invasion of privacy, specifically the disclosure of privacy facts. Lynch, the legal theory goes, is legally barred from publishing even truthful accounts of Treash’s past criminal convictions.

That, I think, would make for a very bad legal rule. Some people may take a forgive-and-forget attitude towards past crimes. But others may not. We should be entitled to decide for ourselves how much weight to give to such information, without the legal system forbidding others from speaking to us about these matters.

Unfortunately, for several decades, California courts did indeed take the view that accurately discussing people's crimes from a decade or more ago could lead to legal liability. Such speech, a discussion in a 1971 California Supreme Court said, serves no "public purpose" and is not "of legitimate public interest"; there is no "reason whatsoever" for it, when (in the court's view) the plaintiff has been "rehabilitated" and has "paid his debt to society."

"[W]e, as right-thinking members of society" -- yes, the court did say "right-thinking," and not, I think, ironically -- "should permit him to continue in the path of rectitude rather than throw him back into a life of shame or crime" by revealing his past. "Ideally, [the convicted criminal's] neighbors should recognize his present worth and forget his past life of shame. But men are not so divine as to forgive the past trespasses of others, and plaintiff therefore endeavored to reveal as little as possible of his past life." And to assist plaintiffs in what the court apparently thought was a worthy effort at concealment, the law may bar people from saying things that would interfere with the convicted criminals' plans -- even when the speakers and the listeners take a somewhat different view of what's "right-thinking" than the court does.

Fortunately, in 2004, the California Supreme Court realized that under modern First Amendment law, this view is unsound, and “a media defendant may [not] be held liable” for publishing “facts obtained from public official court records.” And, the court held, this was true regardless of whether a judge or jury decided that the facts were “newsworthy” (an unpredictable and subjective standard).

But, back to unfortunately, this still leaves open the question that the Treash v. Lynch litigation -- now called Readylink Healthcare v. Lynch -- raises: Is this right to speak applicable to all speakers, or does it indeed distinguish “media defendant[s]” from nonmedia speakers who are “motivated by malice or intent to gain commercial advantage”? The federal court of appeals for the Ninth Circuit just certified this question as a matter of state law to the California Supreme Court; if the California court concludes that California law categorically protects such nonmedia speakers, the matter will be settled; if the court concludes that such speakers may indeed be held liable for such true speech, then the Ninth Circuit will have to decide whether the First Amendment allows such liability.

I expect that the courts will ultimately rule in favor of the speakers -- and I think that’s exactly right. First Amendment principles should apply to all speakers, whether or not they are parts of the institutional media; and this is of course even more clear now that the media / nonmedia line is blurrier than ever. Newspapers can clearly write about Treash’s past. Presumably I can do the same, since it’s hard to see why I should have fewer First Amendment rights than a small-town newspaper that may have no more readers than this blog does. I take it that Lynch could do the same on a blog that Lynch runs. How can the law sensibly distinguish Lynch’s site from his blog, Lynch’s blog from my blog, or my blog from the Siskiyou Daily News (circulation 6000)?

Nor should it matter that Lynch is "motivated by malice or intent to gain commercial advantage." Newspapers and other media outlets are of course often motivated by an intent to gain commercial advantage. (Our economy generally and copyright law in particular rests on the notion that a desire to gain commercial advantage is generally good, and the law should harness it as a means of producing valuable goods and important speech, rather than condemning it.) And investigative newspaper reporters are often motivated at least in part by hostility to the bad guys they’re covering. Larry Flynt, who published the scurrilous (but constitutionally protected) attack on Jerry Falwell in Hustler Magazine v. Falwell, was likely largely motivated by malice against Falwell. Free speech protection that can be lost simply because a jury finds that you spoke out of “malice” is not much of a protection.

Should this disclosure-of-private-facts tort exist? I think the answer should generally be “no,” for reasons I’ve discussed at much greater length here. Perhaps there ought to be a narrow and well-defined exception for speech that reveals private facts and yet genuinely has virtually no plausible value other than tittilation -- I have in mind, for instance, a tort that would be limited to the unauthorized publication of nude photographs or sex videos (a matter that has been in the news in recent years). I’m not enthusiastic about even such a clear and narrow exception, because of the risk that the narrow exception would be used as a justification for much broader ones; but at least if the exception is kept clear and narrow, relatively little of value would be lost.

But whatever you think about the disclosure tort in other contexts, here we’re dealing with our ability to speak about public events -- a trial and a conviction -- which may still be quite relevant to people’s behavior today. Our freedom to speak about such matters shouldn’t hinge on ad hoc decisions by judges and juries about what’s “newsworthy,” or for that matter who’s a member of the “media” and who isn’t.

[TECHNICAL NOTE FOR LAW GEEKS: Howard Bashman (How Appealing) asks a good question about the terms of the Ninth Circuit's certification to the California Supreme Court; I'd guess that the Ninth Circuit meant to ask the California Supreme Court about the nature of the California disclosure tort, which the California Supreme Court has been developing (albeit in light of the First Amendment), but I agree that literally the questions also ask the California Supreme Court's view on a purely federal constitutional issue, which is an odd thing for a federal court to do; see also this follow-up from a How Appealing reader.]