New York Times v. Sullivan, “Breathing Space” And Freedom Of Information

“Whatever is added to the field of libel [individual privacy] is taken from the field of free debate [freedom of information].”

Daniel J. Klau (March 13, 2014) (paraphrasing New York Times v. Sullivan, 376 U.S. 254 (1964)).

* * *

Fifty years (and 4 days) ago, the United States Supreme Court decided the landmark defamation case, New York Times v. Sullivan, which established the “actual malice” standard for defamation claims against public officials.  That standard requires a public official who brings a defamation suit to establish not only that the challenged statements are false and defamatory, but also that the defendant made the statements with: i) actual knowledge of their falsity, or ii) reckless disregard for their probable falsity.  That is a heavy burden for a public official to meet and, not surprisingly, the actual malice standard greatly reduces the likelihood of a newspaper or other media entity being held legally responsible for libeling a public official.  Face it, as much as many people dislike the media, reporters and editors generally are not in the habit of saying things that they know for a fact to be untrue.

What does any of this have to do with freedom of information? I’m getting there, I promise.

Justice Brennan’s opinion for the Supreme Court explicitly states the rationale, or at least one of the principle rationales, for adopting the actual malice test: the need for “breathing space” in public debate.

As Justice Brennan correctly observed, “erroneous statement is inevitable in free debate.” If it is impossible to eliminate factual error in free debate completely, who should bear the risk of such factual errors–the speaker or the person whom the challenged statement concerns? Imposing the risk of error on the speaker tends to lead to self-censorship and thus discourages robust public debate.  Imposing the risk of error on the person about whom the statement is made means that a person who has suffered reputational injury due to a false and defamatory statement is left without a remedy.  Where should the balance be struck?

Justice Brennan answered that question in favor of protecting erroneous statements (and, thus, the speakers who utter them), unless the statements were made with actual malice, as defined above.  Such protection was necessary, he wrote, “if the freedoms of expression are to have the ‘breathing space’ that they ‘need . . . to survive.'”

Again, you ask, what does any of this have to do with freedom of information?

Look again at the paraphrased quote at the beginning of this post: “Whatever is added to the field of libel [individual privacy] is taken from the field of free debate [freedom of information].”  Government records, particularly in the law enforcement arena, are often about people who, voluntarily or involuntarily, have crossed paths with the government.  When we create exemptions in freedom of information acts to protect the privacy of such individuals, we necessarily limit the public’s ability to evaluate the conduct of government officials and to learn lessons that may be of value to society in the future.

Privacy advocates argue that while freedom of information is an important value and that some “invasions” of personal privacy are “warranted” in the name of open government (i.e., the interest in public access outweighs the person’s privacy interests), other disclosures of private information in public records are “unwarranted” (i.e., the interest in privacy outweighs the public’s interest in access to government documents).

But who decides whether a disclosure of private information in government documents is warranted or unwarranted in the freedom of information context?  And, more importantly for the purposes of this post, whoever that decision-maker may be, is it possible to construct a system that answers the warranted v. unwarranted question perfectly, each and every time it arises?

In my view, just as error is inevitable in free debate, so too is error inevitable in deciding whether the disclosure of personal information in government files is warranted or unwarranted.  Privacy advocates understandably argue that the public should bear the risk of error.  In close cases, they argue, it is better to err in favor of protecting individual privacy.  Open government advocates argue that, in close cases, it is better to err in favor of the public’s right to know.  For open government advocates, freedom of information, like freedom of speech, requires “breathing space.”

This debate is playing out right now before the Connecticut General Assembly, which is considering legislation that would impose significant limitations on public access to witness information, 911 tapes and graphic crime scene photographs of homicide victims.  At the risk of oversimplification, privacy advocates argue that the person seeking public disclosure of such information should bear the burden of proving that the public has a legitimate interest in it.  Placing the burden of proof on the requestor shifts the risk  that a “warranted” disclosure of information will be prevented towards the public. By contrast, FOI advocates argue that the public enjoys a presumptive right of access to all government records, that government records are presumed to be of legitimate public interest, and that the burden should always be on the government (or the affected individual) to prove that the particular requested government records are not matters of legitimate public interest. Putting the burden of proof on the opponent of disclosure means that he/she/it bears a greater risk that an “unwarranted” disclosure will be permitted.  (Click here for a discussion of how burdens of proof allocate risks of error between litigants in adjudicative systems.)

How should this debate be resolved?  Well, I’m an open government advocate, so. . . .  But the arguments of privacy advocates should not be dismissed with the back of a hand.

At the end of the day, the question is this: What kind of society do we want to live in?  Do we want to live in a society that places a premium on free debate and open government?  (I do.)  If so, we must recognize that those freedoms are, well, not free.  They have a very real cost.  Anyone who thinks otherwise is deluding himself.

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