Case Western Reserve Law Review

Volume 41 | Issue 3

1991

In Defense of Truth
Erwin Chemerinsky

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Erwin Chemerinsky, In Defense of Truth, 41 Case W. Res. L. Rev. 745 (1991)
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 IN DEFENSE OF TRUTH

Erwin Chemerrnsky*

A S SOMEONE WHO often defends controversial and unpopu-

lar positions, it is a special pleasure to write in support of truth
and knowledge. Professor Schauer argues that truth and knowl-
edge are not intrinsically desirable and are, at times, instrumen-
tally undesirable.1 Furthermore, he maintains that constitutional
analysis must recognize that the dissemination of information con-
veys and diminishes power.2 He suggests that the effects on such
power should be an explicit part of judicial balancing. 3
I contend, however, that Professor Schauer's approach is mis-
guided and dangerous. The critical concern is the relationship be-
tween particular information and individual privacy The truth of
the information or its relationship to an amorphous concept of
power is irrelevant in deciding whether to allow recovery for pub-
lic disclosure of private facts. Ultimately, the central analysis
must compare the effect of publicizing information concerning an
individual with the public's gain from dissemination of that infor-
mation. Moreover, it is undesirable to denigrate the value of truth
in society, for such an approach ultimately licenses deception by
government and business.
Thus, in responding to Professor Schauer, I want to make
three points. First, it is possible to enhance the legal protection for
privacy without lessening the importance of truth as a value. Sec-
ond, Professor Schauer gives too little weight to the values of
truth and knowledge and almost completely ignores the question
of who will decide when society is better off with falsehoods or
ignorance. Finally, Professor Schauer focuses on the wrong issues
by addressing truth and power as crucial aspects of privacy cases.

* Legion Lex Professor of Law, University of Southern California Law Center. I

want to thank Benjamin Fishman for his excellent research assistance.
I. See Schauer, Reflections on the Value of Truth, 41 CASE W RES. L. REv. 699
(1991).
2. Id. at 713-15.
3. Id.at 718.

745
 CASE WESTERN RESERVE LAW REVIEW [Vol. 41:745

He thereby ignores the central difficult issues: how is a court to

decide what is newsworthy and how much weight should be given
to the importance of public dissemination of the contents of gov-
ernment records.

I. PROTECTING PRIVACY WITHOUT DENIGRATING TRUTH

The implicit message of Professor Schauer's paper is that it

would be desirable to provide more protection for privacy than
current first amendment law likely would tolerate. As Professor
Schauer acknowledges, the Supreme Court has not yet considered
the constitutionality of tort liability for the public disclosure of
private facts obtained from sources other than government
records. For example, in Cox Broadcasting Corp. v Cohn4 and
FloridaStar v B.J.F.,5 the Supreme Court rejected allowing lia-
bility for the dissemination of rape victims' identities that were
lawfully obtained from government records. Similarly, in Smith v
Daily Mail PublishingCo.8 and Oklahoma PublishingCo. v Dis-
trict Court,7 the Court extended constitutional protection to the
publication of information lawfully obtained in open court and
from court records relating to juvenile offenders.
Thus, no indication of how the Court will protect privacy
when the information is obtained from nongovernment sources ex-
ists. As described more fully in Part III, there is a unique public
interest in assuring access to government records and the dissemi-
nation of their content. When this interest is not present, such as
in tort suits for public disclosure of private facts obtained from
nongovernment sources, 8 the balance could be quite different.
Even in the realm of information obtained from public
records, increasing the protection of privacy without denigrating

4. 420 U.S. 469 (1975).

5. 491 U.S. 524 (1989).
6. 443 U.S. 97 (1979).
7. 430 U.S. 308 (1977).
8. See, e.g., Virgil v. Time, Inc., 527 F.2d 1122 (9th Cir. 1975) (invasion of privacy
suit based on magazine's description of a person's eccentric habits), cert. denied, 425 U.S.
998 (1976); Sidis v. F-R Publishing Co., 113 F.2d 806 (2d Cir.) (invasion of privacy suit
for a story about a former child prodigy), cert. denied, 311 U.S. 711 (1940); Barber v.
Time, Inc., 348 Mo. 1199, 159 S.W.2d 291 (1942) (invasion of privacy suit for a story
about a woman with a unique medical condition that required her to eat huge quantities of
food). For a discussion of the rationale for protecting privacy rights over first amendment
interests and suggesting the need for a test for "public interest," see Comment, An Accom-
modation of Privacy Interests and First Amendment Rights in Public Disclosure Cases,
124 U. PA. L. REV. 1385 (1976).
1991] RIGHT TO PRIVACY

the value of truth is possible. The emphasis should be on the rea-

sons that the disclosure of certain information is harmful to the
individual and that those injuries outweigh the public benefits
from disclosure. In other words, more analytical weight should be
placed on the privacy side of the equation; there is no need to
diminish the importance of truth or knowledge.
Under the Constitution, no value-not the sanctity of human
life, not freedom of speech, not equality, not truth-is absolute.
The Supreme Court long has recognized that in limited circum-
stances individuals can be punished for disseminating true infor-
mation. In Near v Minnesota,9 the Court observed that "[n]o one
would question but that a government might prevent the pub-
lication of the sailing dates of transports or the number and loca-
tion of troops." 10 I have no doubt that a court would allow liabil-
ity if a person published, in violation of federal law, the names
and locations of American secret agents in Iraq. Even though the
information concerning troop ships or secret agents is true, first
amendment protection does not extend to publication of this infor-
mation because protecting national security and human lives
would be regarded as overriding interests. Recently, the Supreme
Court upheld a federal district court's prior restraint against the
Cable News Network's broadcast of taped conversations between
Manuel Noriega and his attorneys.1" The issue, of course, was not
the truthfulness of the tapes, but rather the potential effect of
their broadcast on Noriega's right to a fair trial.
Likewise, courts can decide to increase the protection of pri-
vacy without denying the significance of truth and knowledge to
society The courts simply need to explain the grounds on which
assuring privacy is more important than the public dissemination
of true information in those particular instances. For example, the
Supreme Court might have decided Cox Broadcastingand Flor-
ida Star differently by explaining that disclosing the name of the
particular victim provides the public with little useful information,
while disclosure often makes the victim's life more difficult. Public
disclosure of the victim's identity obviously entails exposure to
possible danger from an unapprehended rapist, and even well-in-
tentioned questions and comments from friends and colleagues

9. 283 U.S. 697 (1931).

10. Id. at 716.
11. Cable News Network, Inc. v. Noriega, 111 S. Ct. 451, afg United States v.
Noriega, 752 F Supp. 1032 (S.D. Fla. 1990).
 CASE WESTERN RESERVE LAW REVIEW [Vol. 41:745

might be an intrusion that the rape victim does not want to en-
dure. Moreover, the Court could have recognized that protecting a
victim's privacy might further the socially desirable goal of in-
creasing the number of rapes reported since the victims will not
have to fear public disclosure of their identity 12
Similarly, courts might allow liability for the practice of
"outting"--publicly disclosing a person's previously undisclosed
gay or lesbian sexual orientation. The courts can emphasize that
sexual identity is private and that a person should be able to
choose whether to disclose his or her sexual orientation.' 3
If privacy should be better protected, this should be accom-
plished by exalting the value of privacy and by describing the
harms to dignity and reputation from specific disclosures. There is
no need to denigrate the value of truth or knowledge.

II. THE IMPORTANCE OF TRUTH AND KNOWLEDGE

Professor Schauer asks: "Why is it good for a society to have
more truth9 "' 4 He then provides a useful distinction of truth as
the opposite of falsehood as compared with truth as the opposite
of ignorance. 5 He argues that there are instances where false in-
formation might be better for society than truth and instances
where ignorance is preferable to knowledge.'"
Professor Schauer's analysis, however, tremendously under-
values the importance of truth and knowledge. For example, Pro-
fessor Schauer attempts to argue that falsehoods might be prefer-
able to truths by offering examples of lies that might advance the
underlying values that truth serves, "such as happiness, utility,
dignity, stability, human well-being, [or] the general welfare."'"

12. Analysis cannot focus solely on the harms to a rape victim from the dissemina-
tion of his or her identity and the contrasting benefits to the public from disclosure of that
information. See infra text accompanying notes 24-35. The judicial balancing must also
consider that the information was lawfully obtained from government records and the value
of having open records.
13. Difficult questions arise if the sexual identity of a government official or a public
figure were disclosed involuntarily. The issue would then become the newsworthiness of the
information. See infra text accompanying notes 32-35.
14. Schauer, supra note 1, at 706.
15. Id.
16. Id. at 706-07.
17. Id. at 706. It is tempting to respond to Professor Schauer by arguing the intrinsic
value of truth and knowledge. See S. Bok, LYING: MORAL CHOICE IN PUBLIC AND PRIVATE
LIFE 49-50 (1978). The difficulty with this, as with all arguments of intrinsic value, is that
it offers little opportunity for dialogue or persuasion. Those who believe that there is intrin-
1991] RIGHT TO PRIVACY

He writes that perhaps "the United States would be better off if

everyone in the country believed (falsely) that George Washing-
ton, Abraham Lincoln, Franklin Roosevelt, and Elizabeth Cady
Stanton were African-Americans."' 8 In the same vein, he suggests
that it would be good if people believed that cigarettes and alcohol
cause male baldness and that perhaps it is good that people falsely
believe that banks have more than fifty percent of deposits on
19
reserve.
But in presenting these examples Professor Schauer assumes
the existence and importance of other truths. Normatively, the ex-
amples assume the greater goods of racial justice, of limiting ciga-
rette and alcohol consumption, and of preserving bank stability
Empirically, he assumes that false perceptions of racial identity
would have a positive effect on racial attitudes, that false beliefs
about cigarettes and alcohol use relative to baldness will decrease
their consumption, and that accurate perceptions about bank
reserves would cause financial panic. In other words, Professor
Schauer assumes that there are truths and that these truths are
worth protecting and argues that these greater truths justify lies.
But Professor Schauer's position is short-sighted and incredi-
bly dangerous. It is short-sighted because his theory assumes that
it is possible to permanently suppress the truth. Yet, in all likeli-
hood the truth he wants to hide eventually will become public and
then cause far more harm than the initial disclosure of the accu-
rate information. If people falsely are encouraged to believe that
the bank has their money on hand in reserves, there is a real risk
of a bank run when depositors learn that they have been deceived.
Similarly, there is a potential for serious backlash if people learn
that they have been misled regarding the race of prominent Amer-
icans. Indeed, people will come to distrust anything said by those
attempting to advance racial equality If people learn that they
were deceived concerning the effects with regard to baldness of
smoking and drinking, they might then distrust all information
concerning the adverse health effects of these practices. Spreading
falsehoods to serve greater truths risks undermining those truths
once the falsehoods are uncovered.

Sic value to truth reject Professor Schauer's postion; those who deny such intrinsic value
cannot be persuaded that it exists. There is no apparent way to demonstrate the existence
of intrinsic value.
18. Schauer, supra note I,at 706.
19. Id.
750 CASE WESTERN RESERVE LAW REVIEW [Vol. 41:745

More importantly, Professor Schauer's analysis ignores the

values of autonomy and choice. Truthful information allows indi-
viduals to make their own decisions about what to believe and how
to act. A person should be able to decide whether to admire
George Washington, Abraham Lincoln, Franklin Roosevelt, and
Elizabeth Cady Stanton based on accurate portrayals. Similarly,
people should be able to decide whether to smoke or drink based
on correct information concerning the health effects and where to
place their money based on truths about the stability of banks.
Professor Schauer also argues that information yields
power.20 False information disempowers; it denies individuals the
ability to make choices about the decisions in their lives. Professor
Schauer simply ignores the importance of truth for individual au-
tonomy Honest, open public dialogue, dialogue that might help
individuals and society discover their best interests, is prevented
by the falsehoods. 1
There is a tremendous paternalism to this argument: believ-
ing he knows what the greater truths are, Professor Schauer de-
cides that others would benefit by believing falsehoods. This view,
that deception is permissible to serve a greater good, is frighten-
ing. There are no standards to guide the implementation of this
utilitarian analysis or the determination of which falsehoods are
justified. Professor Schauer seems to say little more than that
falsehoods are permissible whenever they might make people bet-
ter off in some way His argument provides no stopping point for
these lies and fails to recognize the dangers of deception.
The same arguments can be made against Professor
Schauer's contention that ignorance is often better than knowl-
edge. Although at times ignorance may be bliss, Professor
Schauer gives no weight to the right of the people to know about
government and other matters of public concern. Professor
Schauer also fails to recognize the importance of knowledge to
people who wish to exercise their autonomy by making informed
choices about their lives. For example, it might be better if the
government did not acknolwedge that airport metal detectors can-
not identify plastic explosives. In fact, terrorists might be best de-
terred if the Federal Aviation Administration falsely publicized

20. Id. at 713.

21. See, e.g., Abrams v. United States, 250 U.S. 616, 630 (1919) (Holmes, J., dis-
senting) (free speech insures a marketplace of ideas in which the competition of freely
expressed ideas will aid people in determining what is true).
1991] RIGHT TO PRIVACY

the technical ability to detect such weapons. This, however, would

deny the right of people to decide whether to fly based on an accu-
rate appraisal of the risks. As argued earlier, the ultimate expo-
sure of the truth might undermine the credibility of all govern-
ment declarations concerning airplane safety
Thus far my point has been that Professor Schauer underval-
ues truth and knowledge. An equally serious problem is that Pro-
fessor Schauer virtually ignores the question of who will decide
when falsehoods or ignorance are better than truths. Assume that
Professor Schauer is correct and that falsehoods and ignorance are
preferable to truth in the instances he describes. Who in society
should be entrusted with the power to decide that the people are
better off with lies or ignorance? Professor Schauer relegates this
question to a footnote where he declares:
Nothing in the foregoing examples is designed to take a position
about the consequences of establishing some institution to deter-
mine truth and falsity. Of course it is the case that the benefits
of falsity might be overwhelmed by the harms consequent upon
establishing some institution to determine which falsehoods were
socially desirable, but this does not defeat the point in the text
that falsity is not necessarily bad, and truth not necessarily
good. As to the latter, consider whether to disabuse a dying per-
son of her false belief, which now brings her great happiness,
that her son has never been in trouble with the law 22
Professor Schauer cannot so easily avoid the question of who
shall decide when falsehoods or ignorance are preferable to truth
or knowledge. His paper is not about situations where individuals
come to false beliefs through self-study or self-reflection. He is not
discussing situations where individuals having the opportunity to
learn the truth choose to remain ignorant. His examples focus on
the conscious dissemination of inaccurate information or the in-
tentional hiding of information from another person. Even the hy-
pothetical questioning whether to tell the dying woman the truth
about her son involves one person deceiving another.
Thus, the question has to be faced as to who should decide
when others are better served by lies or ignorance. Professor
Schauer attempts to avoid this question by recognizing the dan-
gers in creating an institution that would determine this for soci-
ety 23 Even if no such institution is established, the question still

22. Schauer, supra note 1, at 706-07 n.31 (citation omitted).

23. Id.
 CASE WESTERN RESERVE LAW REVIEW [Vol. 41:745

has to be faced as to who shall decide when deception is accept-

able. Should the government be able to decide when the people
are better off with lies about its activities9 History shows that gov-
ernment officials often will lie or suppress information to serve
their own self-interest and rationalize their behavior by saying it
serves the public's good. Should corporations or professionals be
able to decide when we are better off being deceived9 Again, his-
tory and experience teach that we are better off insisting on truth
than trusting others to protect our interests through lies.
I do not contend that truth is never harmful or that instances
do not arise where falsehoods and ignorance are preferable.
Rather, my point is that Professor Schauer greatly undervalues
truth. Moreover, given the importance of truth for autonomy and
the dangers in permitting deception, there should be a very strong
presumption in favor of truth and knowledge and a condemnation
of those who would deceive us.
I do not suggest that the value of truth should not be ques-
tioned. The dangers I attribute to Professor Schauer's position
come not from his challenging the desirability of truth, but rather
from the arguments he makes in doing so. Once it is suggested
that lies are justified to serve a greater good, then license is given
to deception. The solution must be to strongly reaffirm the value
of truth and the almost irrebuttable presumption that we do not
want anyone to lie to us out of a belief that we will be better off
deceived.

III. ASKING THE RIGHT QUESTIONS ABOUT PRIVACY AND THE

FIRST AMENDMENT

In discussing the constitutional protection of privacy relative

to freedom of speech, Professor Schauer focuses primarily on two
concepts: truth and power.2 4 Neither of these is helpful in deciding
the constitutional issues. Indeed, I think that focusing on them
obscures the difficult questions concerning the value of public dis-
closure of government records and the definition of
newsworthiness.
The tort of public disclosure of private facts is different from
liability for defamation in that the former concerns true informa-
tion and the latter falsehoods. Indeed, truth long has been a com-

24. Id. passim.

1991] RIGHT TO PRIVACY

plete defense to a suit for defamation.2" Accordingly, there is the

instinctive reaction that truth should be a defense to other tort
liability, such as for public disclosure of private facts. At the same
time, it initially seems inconsistent with the first amendment to
allow liability for publishing true information.
But on reflection, these perceptions are based on a failure to
adequately distinguish defamation from public disclosure of pri-
vate facts as well as an insufficient appreciation of the importance
of privacy Although both defamation and the public disclosure
tort are concerned with protecting individual dignity and reputa-
tion, their concern is different. Because defamation concerns
harms resulting from the dissemination of false information, pub-
lication of true information is a possible remedy But when true
private information is publicized, the harm is done; additional
publicity can only compound the injury, never remedy it. Thus,
truth obviously is a defense to defamation since the tort exists to
remedy falsehoods; but truth is not a defense to the public disclos-
ure tort which exists to deter and remedy invasions to privacy
from the publication of true information.
It is not inherently inconsistent with the first amendment to
create liability for disseminating truth. As explained in Part I, the
Court long has recognized instances where publishing truths can
be punished, such as to protect national security 26 Likewise,
courts can recognize the importance of privacy for individuals and
allow liability in instances where privacy is more important than
disseminating the information. In other words, the focus should be
on what privacy interests justify interfering with first amendment
freedoms, not on the value, or lack thereof, of truth.
Second, Professor Schauer suggests that the privacy cases
should be analyzed in terms of "power." He explains that possess-
ing knowledge conveys power and that those who have informa-
tion about another possess power over that other person. Although
this is an important and interesting insight, it is not very useful in
analyzing privacy issues.
Professor Schauer never defines what he means by "power." I
assume that it means the ability to make decisions affecting an-
other person. In this sense, I have the power to grade my students,

25. Zimmerman, Requiem for a Heavyweight: A Farewellto Warren and Brandeis's

Privacy Tort, 68 CORNELL L. REv. 291, 307-08 (1983) ("[T]ruth was recognized as an
absolute defense to defamation long before the right of privacy was recognized.").
26. See supra text accompanying notes 9-11.
754 CASE WESTERN RESERVE LAW REVIEW [Vol. 41:745

and I have the power to determine where my young children will

go to school. But the privacy cases are not at all about power in
this sense. A rape victim's concern is not that those who know of
her rape will make decisions affecting her or exercise power over
her in an undesirable way In all likelihood, she wants secrecy be-
cause she does not want to discuss the matter even with well-in-
tentioned friends and colleagues. A person with a medical condi-
tion, such as AIDS or cancer, may want to keep it secret to
prevent discrimination. In that sense, Professor Schauer is correct
that privacy is related to power. But often the person may want to
keep the condition secret to avoid questions and paternalistic
treatment from others.
Ultimately, I believe that privacy is about protecting individ-
ual dignity and allowing individuals to choose how to handle sensi-
tive information about themselves. Sometimes disseminating the
information has power consequences, but that is not the central
focus of privacy protection. Putting power at the center of analysis
obscures the important values that privacy serves, such as dignity,
reputation, and repose, which are completely unrelated to power.
Finally, by focusing on truth and power, Professor Schauer
slights the difficult questions that must be faced in deciding when
the first amendment should tolerate liability for privacy invasions.
One such question concerns the importance of public access to
government records and dissemination of information from them.
As mentioned earlier, in all of the Supreme Court cases dealing
with privacy and the first amendment, the issue concerned the
publication of information lawfully obtained from government
documents.17 Therefore, in considering Cox BroadcastingCorp. v
Cohn28 or FloridaStar v B.J.F.,29 the analysis cannot simply fo-
cus on the importance of the privacy interest in a rape victim's
identity as opposed to the public gain from the disclosure. The
balance also must accommodate the need for public access to gov-
ernment records and the right of the public to learn their content.
Perhaps the most important function of the first amendment is to
further self-government and to check government at all levels.30

27. See supra text accompanying notes 4-7.

28. 420 U.S. 469 (1975).
29. 491 U.S. 524 (1989).
30. See, e.g., A. MEIKLEJOHN, FREE SPEECH AND ITS RELATION TO SELF-GOVERN-
MENT 15-16, 24-27 (1948); Blasi, The Checking Value in First Amendment Theory, 1977
Am. B. FOUND. REs. J. 521.
1991] RIGHT TO PRIVACY

Access to government records is imperative to monitor the activi-

ties of the government. Moreover, once society has a right of ac-
cess to government documents, it is difficult to justify punishing
individuals for publicizing their content. The Supreme Court re-
iterated the importance of such access to government documents
when they held that liability for the truthful reporting of informa-
tion lawfully obtained from government records 31
can only exist if
there is an "interest of the highest order."
There may, nevertheless, be instances where protecting pri-
vacy is more important than assuring access to government
records. The question is when, and under What circumstances,
such liability should exist. Focusing on concepts such as truth and
power provides no answers.
Also, there is the fundamental unresolved question of how to
define "newsworthiness." The Restatement (Second) of Torts pro-
vides that liability for public disclosure of private facts may exist
only if the information is offensive to the reasonable person and if
the information is not newsworthy 32 In fact, the first amendment
likely would not permit liability for publishing newsworthy infor-
mation. Courts, however, have engaged in an ad hoc determina-
tion of what is newsworthy and have not provided any useful
criteria. 33
Enormous problems exist in defining newsworthiness. One ap-
proach is to define newsworthiness in terms of public interest and
media judgment. Professor Kalven noted:
[W]hat is at issue [is] whether the claim of privilege is not so
overpowering as virtually to swallow the tort.
[S]urely there is force to the simple contention that
whatever is in the news media is by definition newsworthy, that
the press must in the nature of things be the final arbiter of
newsworthiness."
However, by this approach virtually anything the media prints
would be deemed newsworthy and protected from liability The
privilege truly would swallow the tort.
Thus, an alternative approach is for courts to decide what is

31. Florida Star, 491 U.S. at 533 (quoting Smith v. Daily Mail Publishing Co., 443
U.S. 97, 103 (1979)).
32. RESTATEMENT (SECOND) OF TORTS § 652D (1976).
33. See Note, Defining a Public Controvery in the Constitutional Law of Defama-
tion, 69 VA. L. REV. 931, 944-50 (1983).
34. Kalven, Privacy in Tort Law-Were Warren and Brandeis Wrong?, 31 LAW &
CONTEMP. PROBS. 326, 336 (1966).
 CASE WESTERN RESERVE LAW REVIEW [Vol. 41:745

of legitimate interest to the public. Professor Bloustein argued

that "'[p]ublic interest,' taken to mean curiousity, must be distin-
guished from 'public interest,' taken to mean value to the public
of receiving information of governing importance. There is [a first
amendment] right to satisfy public curiousity and publish lurid
gossip about private lives." 3 5 Still, there are great dangers in al-
lowing the courts to decide the legitimate interests of the people.
In part, the difficulties concern notice to the press and the danger
of chilling editorial judgment. The news media probably cannot
know in advance how a court will evaluate the newsworthiness of
the publication. On a more basic level, there are inherent
problems in having judges decide what newspapers should find
newsworthy
I have no solution to either the problem of access to govern-
ment records or defining newsworthiness. I am, however, con-
vinced that these are the difficult issues that must be faced in de-
fining the constitutionally permissible scope of the public
disclosure tort. By focusing on truth and privacy, Professor
Schauer slights these central questions.

CONCLUSION

The hardest constitutional issues involve conflicts between

two important social values. The tension between privacy and first
amendment freedoms is exactly such a conflict. Useful analysis
must focus on the right questions. Although Professor Schauer's
paper is an important contribution to the literature, ultimately he
asks the wrong questions by focusing on the social value of truth
and the power effects of disseminating information. Instead, anal-
ysis must center on the privacy effects of particular disclosures,
the importance of allowing publication of information obtained
from government records, and the definition of "newsworthy"
These are profoundly difficult issues, but the ones that will ulti-
mately determine the scope of privacy torts under the first
amendment.

35. Bloustein, The First Amendment and Privacy: The Supreme Court Justice and
the Philosopher, 28 RUTGERS L. REv. 41, 56-57 (1974).