Privacy's Double Standards

Abstract

Where the right to privacy exists, it should be available to all people. If not universally available, then particularly accessible to marginalized individuals who are subject to greater surveillance and are less able to absorb the social costs of privacy violations. But in practice, people of privilege tend to fare better when they bring privacy tort claims than do non-privileged individuals. This, despite doctrine suggesting that those who occupy prominent and public social positions are entitled to diminished privacy tort protections.

This Article unearths disparate outcomes in public disclosure tort cases, and uses the unequal results as a lens to expand our understanding of how constitutional equality principles might be used to rejuvenate beleaguered privacy tort law. Scholars and the Supreme Court have long recognized that the First Amendment applies to the substance of tort law, under a theory that state action is implicated by private tort lawsuits because judges (state actors) make the substantive rule of decision and enforce the law. Under this theory, the First Amendment has been used to limit the scope of privacy and defamation torts as infringing on the privacy invader’s speech rights. But as this Article argues, if state action applies to tort law, other constitutional provisions should also bear on the substance of common law torts.

This Article highlights the selective application of constitutional law to tort law. And it uses the unequal effects of prevailing public disclosure tort doctrine to explore whether constitutional equality principles can be used to reform, or nudge, the currently weak protections provided by black letter privacy tort law. By so doing, the Article also foregrounds a doctrinally-sound basis for a broader discussion of how constitutional liberty, due process, and equality norms might influence tort law across a variety of substantive contexts.

Keywords: privacy, public privacy, constitutional law, torts, equal protection, first amendment, surveillance, privacy torts, public disclosure, state action, constitutionalization of torts

JEL Classification: K10, K13, K19, K30, K40