Posted by Eugene Volokh:
Free to Tell the Truth About People's Past Crimes:
I'm pleased to report that a couple of weeks ago, the [1]California
Supreme Court held that people are free to tell the truth about
others' past crimes. Thirty years earlier, the court had held, in
Briscoe v. Reader's Digest, that when a crime was long enough in the
past, it would be an "invasion of privacy" for other to publish
information about the supposedly "reformed" criminal, and the criminal
could sue for lots of money over that. (California courts had also
held that much earlier, in the 1930s, and some other state courts had
followed suit.) Now the California Supreme Court has overruled
Briscoe, and concluded that recent U.S. Supreme Court decisions
protect accurate accounts of public records -- such as people's past
criminal convictions -- despite the passage of time.
To explain why I think this is an excellent decision -- and why I'm
strongly opposed to some "privacy" and "paid his debt to society"
rhetoric in such cases -- I'm taking the liberty to exhume an old item
of my own, from my [2]2000 article on Freedom of Speech and
Information Privacy: The Troubling Implications of a Right to Stop
People From Speaking About You, 52 Stanford L. Rev. 1049 (2000):
[In Briscoe, Reader's Digest was held liable for revealing that
Briscoe had eleven years earlier been convicted of armed robbery (a
robbery that involved his fighting "a gun battle with the local
police"). The court acknowledged that the speech, while not related
to any particular political controversy, was newsworthy; the public
is properly concerned with crime, how it happens, how it's fought,
and how it can be avoided. Moreover, revealing the identity of
someone "currently charged with the commission of a crime" is
itself newsworthy, because "it may legitimately put others on
notice that the named individual is suspected of having committed a
crime," thus presumably warning them that they may want to be
cautious in their dealings with him.
But revealing Briscoe's identity eleven years after his crime, the
court said, served no "public purpose" and was not "of legitimate
public interest"; there was no "reason whatsoever" for it. The
plaintiff was "rehabilitated" and had "paid his debt to society.")
"[W]e, as right-thinking members of society, 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,
[Briscoe'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
Briscoe in what the court apparently thought was a worthy effort at
concealment, the law may bar people from saying things that would
interfere with Briscoe's plans.
Judges are of course entitled to have their own views about which
things "right-thinking members of society" should "recognize" and
which they should forget; but it seems to me that under the First
Amendment members of society have a constitutional right to think
things through in their own ways. And some people do take a view
that differs from that of the Briscoe judges: While criminals can
change their character, this view asserts, they often don't.
Someone who was willing to fight a gun battle with the police
eleven years ago may be more willing than the average person to do
something bad today, even if he has led a blameless life since then
(something that no court can assure us of, since it may be that he
has continued acting violently on occasion, but just hasn't yet
been caught).
Under this ideology, it's perfectly proper to keep this possibility
in mind in one's dealings with the supposedly "reformed" felon.
While the government may want to give him a second chance by
releasing him from prison, restoring his right to vote and possess
firearms, and even erasing its publicly accessible records related
to the conviction, his friends, acquaintances, and business
associates are entitled to adopt a different attitude. Most
presumably wouldn't treat him as a total pariah, but they might use
extra caution in dealing with him, especially when it comes to
trusting their business welfare or even their physical safety (or
that of their children) to his care. And, as Richard Epstein has
pointed out, they might use extra caution in dealing with him
precisely because he has for the last eleven years hidden this
history and denied them the chance to judge him for themselves
based on the whole truth about his past. Those who think such
concealment is wrong will see it as direct evidence of present bad
character (since the concealment was continuing) and not just of
past bad character. . . .
[W]hich viewpoint about our neighbors' past crimes is
"right-thinking" and which is "wrong-thinking" is the subject of a
longstanding moral debate. Surely it is not up to the government to
conclude that the latter view is so wrong, that Briscoe's
conviction was so "[il]legitimate" a subject for consideration,
that the government can suppress speech that undermines its highly
controversial policy of forgive-and-forget. I can certainly see why
all of us might want to suppress "information about [our] remote
and forgotten past[s]" in order "to change . . . others'
definitions of [ourselves]." But in a free speech regime, others'
definitions of me should primarily be molded by their own
judgments, rather than by my using legal coercion to keep them in
the dark.
So the new California Supreme Court's decision (Gates v. Discovery
Communications, Inc.) is a victory for free speech. And to the extent
that it's a defeat for "privacy," it's a defeat for a form of privacy
that the law ought not recognize -- a putative right to stop people
from telling the truth about what you've done.
References
1. http://www.courtinfo.ca.gov/opinions/documents/S115008.PDF
2. http://www1.law.ucla.edu/~volokh/privacy.htm
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