Key point 4-04. Many states recognize “invasion of privacy” as a basis for liability. Invasion of privacy may consist of any one or more of the following: (1) public disclosure of private facts; (2) use of another person’s name or likeness; (3) placing someone in a “false light” in the public eye; or (4) intruding upon another’s seclusion.
* A federal court in Florida ruled that the disclosure of the identity of a church member who started an anonymous blog critical of the pastor and various church practices violated his constitutional right of free speech. A man (the “plaintiff”) had been a member of a church for 20 years. The church’s lead pastor retired, and the church eventually called a new pastor. Almost immediately after the new pastor began his duties, the plaintiff noticed changes in the preaching style, fundraising, and administration of the church. He disapproved of these changes, believing them to be a departure from long-standing church practices and a serious threat to the integrity of the church. As a result, the plaintiff began an “online chat forum” (blog) to discuss issues related to church doctrine, church funding, and church administration. The blog included the plaintiff’s religious viewpoints, information and opinions pertaining to the church and the pastor’s leadership. The plaintiff encouraged others to contribute to the blog as well. Although the blog was critical of the pastor, the plaintiff insisted that it did not condone, incite, threaten, or describe violence against church leaders, and that he did not engage in any type of criminal conduct against the church or its leaders. Nevertheless, the plaintiff chose to maintain the blog anonymously, due to the critical, controversial nature of the topic and his fear of retaliation from the church. In addition, the plaintiff believed that anonymity would encourage an open and honest dialogue and thereby increase the power and effectiveness of the blog.
A member of the church worked as a law enforcement officer and served on the church’s security detail. The church asked this member if he could obtain the identity of the blog’s anonymous blogger. As part of his investigation the member sought and obtained subpoenas from an assistant state attorney compelling Comcast and Google to disclose the identity of the blogger. Both companies did so, and the plaintiff’s identity was revealed to church leaders. The church thereafter obtained trespass warnings against the plaintiff, forcing him and his family to seek a new church.
The plaintiff filed a lawsuit against the assistant state attorney, claiming that despite the absence of “any legitimate evidence of related criminal conduct” he had issued subpoenas to Comcast and Google requesting the identity of the blogger, along with all other records pertaining to the blog. The plaintiff asserted that issuing the subpoenas under these circumstances violated his First Amendment right of free speech by destroying his ability to speak anonymously on church matters.
The court noted the right of free speech is not limited to written or oral statements and other forms of expression, but also extends to the right of an individual to speak anonymously. In McIntyre v. Ohio Elections Commission, 514 U.S. 334 (1995), the Supreme Court recognized that “an author’s decision to remain anonymous, like other decisions concerning omissions or additions to the content of a publication, is an aspect of the freedom of speech protected by the First Amendment.” The Court explained that an author may choose to speak anonymously out of fear of retaliation or social ostracism, or merely out of the desire to preserve one’s privacy. Additionally, the Court noted the “honorable tradition” of anonymous pamphleteering in our society, stating that it “exemplifies the purpose behind the Bill of Rights, and of the First Amendment in particular: to protect unpopular individuals from retaliation—and their ideas from suppression—at the hand of an intolerant society.”
The court concluded: “Here [the plaintiff] has alleged sufficient facts to establish that exposing his identity impinged on his First Amendment rights by subjecting him to some level of reprisal. Specifically, he has alleged that after his identity was revealed to the church, a trespass warning was issued against him and his wife, he and his family were forced to seek another church, and his ability to speak anonymously on issues concerning the church was destroyed. As such, use of the subpoena power invaded his First Amendment rights and deterred him from what he argues were ‘perfectly peaceful discussions of public matters of importance.'”