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52 Stan. L. Rev. 1003 (1999-2000)
Privacy, Publication, and the First Amendment: The Dangers of First Amendment Exceptionalism

handle is hein.journals/stflr52 and id is 1023 raw text is: Privacy, Publication, and the First
Amendment: The Dangers of First
Amendment Exceptionalism
Richard A. Epstein*
The coordination of common law and constitutional norms are of pressing
importance on matters offreedom of speech. In the Supreme Court and else-
where, it is possible to discern two sharply inconsistent attitudes toward this
question. One view holds that the First Amendment simply prevents any legis-
lative backsliding from the common law rules that protect freedom of speech
and of the press, much as they protect freedom of contract and freedom of ac-
tion generally. On this view, the standard rule governing damages and injunc-
tive relief apply to speech much as they do anywhere else. On the alternative
view of what is termed First Amendment exceptionalism, the First Amendment
protection is read more broadly to afford speech greater protection than the
common law rules that insulate the publication of stolen information from judi-
cial sanction by either damages or injunction. The article then argues that the
common law approach affords a better balance between privacy and disclosure
with respect to a wide range of confidential information, including the protec-
tion of trade secrets. In so doing, it criticizes the results reached in a number of
important recent cases including Desnick v. American Broadcasting Co., Food
Lion v. Capital Cities/ABC, and Ford Motor Co. v. Lane.
INTRODUCTION: ANYTHING NEW IN CYBERSPACE?............................................ 1004
I. FROM DEFAMATION TO PRIVACY IN ONE LARGE LEAP ............................... 1008
II. REFINING THE BASIC MODEL....................................................................... 1014
A. Privileges for Defamation....................................................................1014
B. Liability for True Statements................................................................1015
III. COMMON LAW JUSTIFICATIONS FOR PUBLISHING WRONGFULLY
OBTAINED INFORMATION ............................................................................ 1017
A. Cognizable Harm.................................................................................1018
B. Justification ofPublication Damages .................................................. 1020
C. Remoteness ofDamages....................................................................... 1022
IV. FIRST AMENDMENT EXCEPTIONALISM IN ACTION....................................... 1023
V. INJUNCTIVE RELIEF AND PRIOR RESTRAINT................................................. 1033
VI. TRADE SECRETS...........................................................................................1035
CONCLUSION....................................................................................................... 1047
* James Parker Hall Distinguished Service Professor of Law, The University of Chicago. I
should like to thank Martha Apalsch, Class of 2001, and Robert Alt of the Class of 2002 for their
diligent research assistance. All Internet citations were current as of May 22, 2000. Copyright ©
2000 by Richard A. Epstein and the Board of Trustees of the Leland Stanford Junior University.

1003

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