17 November 2010

Free Speech versus Privacy: Online Sex Journals

Stephen Kershnar
Online Sex Autobiographies: Privacy versus Free Speech
Dunkirk-Fredonia Observer
November 15, 2010

An issue that has arisen and will become increasingly more important is whether Americans have the right to keep some information private. This issue arises when two freedoms, free speech and privacy, smash into each other.

The issue is nicely illustrated by a Duke University graduate, Karen Owen, who wrote a fake Senior Honors Thesis in May 2010, shortly after graduating. She sent it to three friends. In September 2010, a friend forwarded it to others and the thesis went viral. The thesis is entitled, “An education beyond the classroom: excelling in the realm of horizontal academics.” Written in the form of a series of case studies, she sets out a rating system to evaluate men’s sexual performance and then assesses the performance of thirteen Duke athletes. The specific rating is based on a number of factors (for example, physical appearance, sexual talent and creativity, and enjoyable personality) that are nicely laid out. About half the men got bad ratings and a few got terrible ratings.

Owen is likely extremely bright. In addition to getting into Duke, which has roughly the same admission standards as the Ivy League, her thesis is clearly written, organized, and, at times, laugh-out-loud funny.

The issue arises whether the men could sue her, especially those who got low grades. One person can sue another for the public disclosure of embarrassing private facts. According to Oklahoma State University professor Joey Senat, for the person suing to prevail, he must prove that the defendant publicized a non-newsworthy, private fact about him that would be highly offensive to a reasonable person. The fact must be so intimate that publication outrages the public’s sense of decency.

Courts have held that public figures have less of a right to privacy because information about them is a more legitimate public concern. The courts have held that a person need not intend to put himself into the public eye to be a public figure. Senat’s example comes from Sipple v. Chronicle Publishing Co. (Calif. App. Ct. 1984). In that case, a former Marine sergeant deflected a gun during an attempt to assassinate former President Gerald Ford. The sergeant became a public figure despite not intending to do so. When a publication stated that he was gay, which was true although his Midwest family didn’t know it, the court held that he was a public figure.

Owen could arguably defend herself by claiming that she did not publicly release the information, her friends did. She could also argue that the information would not be highly offensive to a reasonable person. After all, it’s hardly news that star athletes at big-time colleges hook up with groupies. Nor is it news that some get the job done well and some don’t. Owen might defend herself by claiming that the public release did not cause the men legally recognizable harm. She could even argue that the men were public figures. For example, the one who got the worst grade was a Canadian tennis star.

This case is not unique. There are a number of websites that allow people to anonymously reveal sexual details and make various harsh and raunchy observations. On college students, there was JuicyCampus and is now College ACB and Burnbook. Locally, Topix.net allows Fredonia and Dunkirk people to anonymously comment on which locals are promiscuous, business cheats, adulterers, wife-beaters, gay, animal-abusers, and so on. Because the people who write on the site are anonymous, they can be neither sued nor subject to social disapproval.

The notion of a right to privacy in this context is odd. A person doesn’t normally own information. For example, it is hard to imagine that the athletes could sue Owen were she to have given the same information to her priest, therapist, or gynecologist. They couldn’t sue her for defamation if she truthfully described the sex. In addition, were there a right to own information, or at least a right to prevent it from being publicized, it is hard to see why public figures wouldn’t also have it.

If the law is justified by its having good results, then there should be some empirical support for the claim that discouraging the release of this information is more important than preventing bad behavior by publicizing it. I am unaware of any such support. Even the boundary separating public and private concerns is murky. For example, consider the media’s widely publicizing the sex lives of an evangelical preacher (for example, Ted Haggard used meth and hired a male prostitute), a teacher (Mary Kay Letourneau had sex with a 13-year-old student), a car mechanic (Joey Buttafuoco had an affair with 16-year old Amy Fisher, who then shot his wife in the face), and a former pro athlete (for example, Tiki Barber carried on with the babysitter). It is hard to determine why these facts are a matter of public concern, especially given that similar facts about our neighbors are not. Many public figures never consented to expose their sex lives. Arguably, the public learns more about themselves by finding out what their neighbors are up to than what freakish celebrities have done lately.

A critic might respond that we restrict our liberties in other ways to protect privacy reasons and this is no different. For example, criminal voyeurism statutes protect people against being watched or filmed when they undress in places where there is a reasonable expectation of privacy. Laws against appropriation protect people from having their name or likenesses used in advertisements without their permission.

In addition, there is a sense that the schools and employers are prying into people’s personal lives in invasive ways. Both increasingly search people’s online sites (for example, Facebook), drug test employees and students, and have vague moral-turpitude clauses that can be and sometimes are applied with Church-Lady priggishness.

Still, protecting privacy by shutting down people’s autobiographical observations sacrifices one freedom for another and does not obviously favor the more important one. Hard-to-follow laws requiring people to guess at what is a public concern or what constitutes publicizing information worsen the situation. Also, it is hard not to laugh in the face of those who fret about the loss of privacy and then enthusiastically support the government hunt for those engaged in private behaviors like prostitution, pornography, drugs, online gambling, and so on.

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