Public Lives and the Limits of Privacy

Extract

The general topic of this symposium—the interplay between public careers and private lives in the selection of presidential candidates—is important. Many debates around dinner tables undoubtedly followed the disclosure by the Miami Herald of Gary Hart's time spent with Donna Rice. In the United States especially, as Tocqueville pointed out 150 years ago, we tend to believe that the law speaks with insight, even if not necessarily with finality, on issues of public importance. This explains, I suspect, my presence in this forum. The embarrassing reality, though, is that the law of privacy is at best tangential to the concerns behind the symposium.

I might best fulfill my task—to comment on the legal regulation of disclosures of private facts regarding public figures—in a sentence: The very fact that public figures are by definition “newsworthy” means that in fact they forego any legal protection against the publication of true facts about them, however embarrassing or offensive such publication might be. There is simply no case law supporting the claim of a public figure seeking political office to enjoy a “right of privacy.” The courts rightly have held that the recognition of any such right would disserve the democratic process itself, for it would inevitably deprive the public of truthful information relevant to deciding who should exercise public responsibilities.