The Death of the Public Disclosure Tort: A Historical Perspective

Abstract

In 1890, Samuel Warren and Louis Brandeis, in their famous Harvard Law Review article The Right to Privacy, called for a new legal right that would allow the victims of truthful but embarrassing press publicity to sue in tort and recover damages for emotional harm. Currently, in most states, it constitutes a tort if the disclosure of "matter concerning the private life of another" would be highly offensive to a reasonable person and the matter is not "of legitimate concern to the public." If the disclosed subject matter is of legitimate public concern, the newsworthiness privilege immunizes the disclosure. However, for all intents and purposes, the public disclosure of private facts tort---one of the four branches of the privacy tort, the "mass communication tort of privacy"---is generally regarded as "dead." "Stunted," an "anachronism," and "surprisingly weak," at best. Scholars have urged that its "remains" be formally "interred." The standard response given in the scholarly literature for the "death" is the broad definition of newsworthiness. Because courts generally consider virtually everything that appears in the news media to be newsworthy, or of "legitimate public concern," it has become nearly impossible to win a public disclosure suit. But why did newsworthiness, in the words of Harry Kalven, Jr., become "so overpowering as to virtually swallow the tort"? The literature is largely silent on this question, pointing only to courts' historical resistance to restrictions on the publication of truthful information and to the infamous Sidis case from 1941, which employed an expansive understanding of newsworthiness roughly synonymous with public curiosity.