Ignacio N. Cofone & Adriana Z. Robertson
Volume 69, Issue 4, 1039-1098
Privacy loss is central to privacy law scholarship, but a clear definition of the concept remains elusive. We present a model that both captures the essence of privacy loss and can be easily applied to policy evaluations and doctrinal debates. To do so, we use standard Bayesian statistics to formalize a key intuition: that information privacy is fundamentally linked to how much other people know about you. A key advantage of our model is that, for the first time, it takes privacy preferences seriously while maintaining tractability. Another key advantage is that, by viewing privacy as a continuum, it is more realistic and is better suited for evaluating “gray areas” than prior models.
We apply this framework to two central areas of privacy law: the common law privacy tort and the Fourth Amendment’s third party doctrine. In the tort context, we first show how our proposal helps to clarify current law, and then use it to distinguish between the two interests protected by the privacy tort: privacy interests and reputational interests. We then propose a simple framework for judges to use in providing remedies for both classes of claims. We then move on to the third party doctrine. We show that many of the shortcomings associated with the doctrine stem from the misguided assumption that privacy is dichotomous rather than a spectrum, as in our model. We then liken this to the standard of care familiar from tort law, and show how the current doctrine results in the equivalent of a strict liability standard, rather than a more appropriate negligence-based standard.
Defending the Public’s Forum: Theory and Doctrine in the Problem of Provocative Speech
Volume 69, Issue 4, 1099-1146
For more than half a century the heckler’s veto has been a source of provocation. On the one hand, there now appears to be widespread consensus among courts and commentators that allowing police to shut down a provocative speaker in a public space over threats from hostile listeners is simply beyond the constitutional pale. Taking that constitutional intuition as their guide, the lower courts have generally approached the problem through a speaker-focused model, in which the government is seen siding with the majority’s mob over the minority speaker, in violation of the principle requiring neutrality among speakers and views. But what happens when the usual roles reversewhen the provocative speaker is not representative of a minority opinion but is arguably representative of a larger majority? Relying on the important recent decision from the Sixth Circuit in Bible Believers v. Wayne County, this Article argues that this reversal of roles shows us not just the limits of the speaker-focused model in solving the heckler’s veto problem, but also how it can and should be broadened to address the increasingly complex protests that have come to dominate our constitutional focus today. We should therefore take Bible Believers as the occasion to reconsider the familiar speaker-focused approach to the heckler’s veto, by reframing it around the different problem that that case represents: not as the familiar drama of the soapbox orator faced with a hostile audience but as an example of a public forum faced with hostile takeover. In these increasingly common cases, the problem of the heckler’s veto should accordingly take on a new conceptual and doctrinal form: as an attack on a public forum that the police must do everything in their power to prevent by defending the forum first.
American Unicameralism: The Structure of Local Legislatures
Noah M. Kazis
Volume 69, Issue 4,1147-1223
The bicameral legislature is a cornerstone of the Madisonian system, a basic assumption of American constitutionalism. But a different constitutional vision is hidden in plain sight. Of the more than 90,000 local governments in the United States-many of which began as bicameral before abandoning the federal model-each has now chosen a single chambered legislature. Efficiency and majoritarianism, not internal checks and balances, have driven the design of local legislatures. Local governments are not merely smaller units than states or the federal government; they have their own structure and their own animating principles. Theories built on bicameralism, including statutory interpretation methodologies and modes of judicial review, must be adapted for local, unicameral governments.
The Public Wrong of Whistleblower Retaliation
Volume 69, Issue 4, 1225-1269
When employers retaliate against whistleblowers, courts and agencies often treat the retaliation as a private employment dispute best resolved by the whistleblower and employer. This cramped view of retaliation disregards Congress’s contrary perspective of whistleblower retaliation as a public wrong requiring public attention. A survey of disparate Congressional enforcement mechanisms in whistleblower retaliation reveals common ground in a public mandate to investigate retaliation allegations. As limited resources constrain public investigation of every allegation, this Article proposes legislative and enforcement strategies that affirm the government’s leadership role in addressing the public wrong of whistleblower retaliation.
A Better Balance for Federal Rules Governing Public Access to Appeal Records in Immigration Cases
Volume 69, Issue 4, 1271-1310
In the first year of the Trump Administration, the courts played a critical role in reviewing and shaping federal immigration policy. When nonprofits and states filed prominent cases challenging the “travel ban,” the public could follow the court process in real time, as new filings were published on the web. But this access to filings is highly unusual for immigration cases. Due to Federal Rules promulgated in 2009, there are special restrictions on access to immigration filings that mean that filings in cases that are less prominent are impossible to access electronically. Thus, as immigration enforcement continues to ratchet up, there will be a huge difference in the ability of the public and affected individuals to monitor those cases that are sufficiently noteworthy to lead to high level press attention, as compared to the thousands of other cases in which the government seeks to detain and deport noncitizens. The difficulty in scrutinizing these cases is all the greater when noncitizens are detained in remote locations or away from places where they have access to counsel and advocacy organizations. This Article argues that the special rule restricting electronic access to immigration cases does a poor job of balancing competing concerns. The history of the rule shows little consideration of the range of immigration issues before the courts or the impact that the rule might have on the development of doctrine. Furthermore, the rule creates an odd mixture of privacy protection and public access that is poorly suited to any of the purported goals of the exception. The Article proposes changes to the Federal Rules of Civil Procedure and Appellate Procedure that would achieve a better balance between the public interest in overseeing matters before the courts and the privacy interests of litigants.
Caught in the Web: Enjoining Defamatory Speech that Appears on the Internet
Joseph G. Marano
Volume 69, Issue 4, 1311-1332
Courts have consistently interpreted section 230 of the Communications Decency Act (“CDA”) as shielding internet service providers from liability for defamatory content posted by users. This is a significant departure from traditional defamation law where publishers may be held liable for defamation upon reprinting defamatory material originally written or spoken by third parties. As this Note explains, the courts’ interpretations of section 230 are in direct conflict with the Act’s legislative history. Indeed, Congress made clear that the goal of section 230 was to protect websites that engaged in editorial self-regulation by deleting obscene and inappropriate content posted by users.
Because of this immunity, plaintiffs who are defamed on the internet have little recourse, largely due to the practical limitations inherent in litigating online defamation claims. The California Court of Appeal has attempted to fashion a remedy for this situation. In Hassell v. Bird, a case pending before the California Supreme Court, the California Court of Appeal issued an injunction ordering Yelp to remove a defamatory review. This Note supports the Court of Appeal’s decision, and argues that the evolving nature of the internet, along with the overbroad immunity courts have read into section 230 of the CDA, necessitate a remedy. This Note suggests that to protect First Amendment rights, and to overcome the traditional presumption against injunctions in defamation cases, courts should design third-party injunctions to require websites to remove only language that a court has found to be defamatory, and to also afford websites the opportunity to try the case on the merits in the event of a default judgment.