Breyer's Defense of Privacy Challenges Media Overreach 

Law360 Expert Analysis

October 14, 2021, 3:41 PM EDT

By David Elder and Neville L. johnson

Last month, former President Donald Trump filed an action in Dutchess County, New York, against his niece Mary Trump and the New York Times, alleging that investigative reporters employed by the Times had “persistently and relentlessly sought out” confidential records from Mary Trump regarding a confidential settlement agreement of litigation over family patriarch Fred Trump's estate, which had included a vast amount of discovery.

The petition further alleges that the reporters' acts of intentionally “convinc[ing]” and “direct[ing]” Mary Trump to “smuggle out” documents from her former lawyer's office made them and the Times “not merely passive recipients” of the documents.

Instead, the petition asserts, they had “actively participated” in the documents' tortious acquisition by inducing and procuring Mary Trump to breach the confidential settlement agreement.

The former president seeks an extensive array of remedies — including compensatory and punitive damages and disgorgement of profits — against both Mary Trump, for her best-selling book, and the New York Times, for its award-winning article. And if the action is successful, it will almost certainly be in no small part due to the body of pro-privacy jurisprudence carved out by U.S. Supreme Court Justice Stephen Breyer.

While the media and press are often lauded as champions of the First Amendment, privacy law recognizes their duality as also “tyrants to the people” — a phrase employed by the California Supreme Court in its 1998 ruling in Shulman v. Group W Productions Inc. That decision found the defendant production company liable for putting hidden cameras on emergency responders and turning victims of horrific accidents into unwitting reality television show stars.

We were amicus curiae co-counsel in Shulman, and appellate co-counsel in Sanders v. ABC Inc., which established an employee's right not to be secretly filmed in the workplace by undercover news reporters. Both were victories for plaintiffs against media defendants that acted tortiously in acquiring the information they subsequently published, and have provided a counterweight against intrusive newsgathering practices.

Justice Breyer's role as the Supreme Court's privacy vanguard has permitted the logic behind decisions such as Shulman and Sanders to be enshrined in several of the court's pivotal opinions.[1] Those opinions collectively reflect a controlling perspective that, when weighing competing free speech and privacy interests, courts are to narrowly focus on the specific circumstances of the cases before them, and abjure broad statements about, or extensions of, doctrine at a time of dramatic technological change.

For example, in 2001's Bartnicki v. Vopper, Justice Breyer's concurrence, with Justice Sandra Day O'Connor joining, provided a significant caveat to the court's invalidation of federal and state statutes punishing media outlets for publishing newsworthy information known to have been unlawfully acquired by the original intercepting source.

Justice Breyer cautioned that in doing so, the court had not “[c]reated a ‘public interest' exception that swallows up” the states' undoubted right to protect against wiretapping of conversations. And he emphasized the importance of the fact that the publisher had acquired the matter at issue — low-value speech involving physical threats — in an entirely lawful manner.

Justice Breyer's concurrence intimated — and we believe this reflects the court's consensus on this point — that a very different decision would have been issued if the facts involved the publisher's active participation in wrongfully acquiring the content of the private conversations published.

He highlighted that the defendants had “neither encouraged nor participated directly or indirectly in the interception” of the conversation, nor had “they ordered, counseled, encouraged or otherwise aided or abetted” the subsequent hand-offs of the recording that ultimately ended with the publisher. 

In other words, Justice Breyer's examples constituted activities that were not to be considered protected routine newsgathering practices, sending a collective chill throughout the publishing world.

Justice Breyer also acknowledged in Bartnicki that there is a huge difference between, on the one hand, the impact of wiretaps — and, presumably, other unlawful acquisitions — on privacy and the fostering of private speech at the point of initial interception, and, on the other hand, the harm resulting from the later republication of such intercepted materials.

He stated that such “[m]ass dissemination of an intimate conversation to an entire community will often cause the speakers greater harm” beyond that of the initial capture/limited disclosure, and “can create a far more powerful disincentive to speak privately.”

He analogized these statutes to those awarding “damages caused through publication of information obtained by theft from a private bedroom.” The latter analysis suggests that he and the court generally may be sympathetic to what are called “publication” or “enhanced” damages, a hotly debated issue.

In sum, Justice Breyer applied in Bartnicki a standard much less deferential to the media than the exacting, and almost invariably liability-eviscerating, strict scrutiny standard in cases involving personal privacy and free expression — values that were equally important and equally of “the highest order.”

He emphasized that the U.S. Constitution accords states primary status as protectors of privacy, with the concomitant power to be able “to respond flexibly to the challenges future technology may pose,” emphasizing that “[c]landestine and pervasive violations of privacy … are genuine possibilities as a result of continuously advancing technologies.” Accordingly, the court “should avoid adopting overly broad or rigid constitutional rules, which would unnecessarily restrict legislative flexibility.”

Justice Breyer's concurrence reflects what we view as the court's strong majority view — i.e., that there is no First Amendment right of the press or citizen-journalists to engage in unlawful, tortious or otherwise actionable conduct — compare the allegations in the Trump lawsuit — under generally applicable laws in their efforts to gather the news.

Bartnicki reflects and amplifies the court's pivotal pre-Breyer 1990 finding, in Cohen v. Cowles Media Co., that the First Amendment does not protect media newsgatherers and publishers from their duty to comply with generally applicable state laws having only an incidental impact on newsgathering. In Cohen, the court permitted imposition of liability under the First Amendment for breach of a promise of source anonymity, even though the information published as the result of the breach was core political speech related to a campaign for lieutenant governor.

Justice Breyer's views on newsgathering were further amplified in his concurrence to the court's 2011 decision in Snyder v. Phelps, where the court held that, in a case involving otherwise lawful public picketing, the First Amendment barred tort liability for intentional infliction of emotional distress and intrusion upon seclusion based upon the picketers' messages, which were intended to be provocative and garner outraged media coverage.

Justice Breyer's concurrence emphasized that the court's holding was intended to be very narrow and fact-specific. He posed alternative scenarios where the First Amendment would not apply:

[S]uppose that A were physically to assault B, knowing that the assault (being newsworthy) would provide A with an opportunity to transmit to the public his views on a matter of public concern. The constitutionally protected nature of the end would not shield A's unlawful, unprotected means. And in some circumstances [“fighting words”] the use of certain words as means would be similarly unprotected.

In other words, neither physical assaults nor, where sufficiently egregious, verbal assaults calculated “to draw attention to [A]'s views on a public matter” are protected by the First Amendment. Justice Samuel Alito's dissent concurred with Justice Breyer's analysis, only noting that he would have found the facts before the court to satisfy Justice Breyer's standard. No member of the court took issue with Justice Breyer's illuminating illustrations.

Lastly, two prior restraint decisions authored by Justice Breyer must be acknowledged for the considerable critical media and scholarly attention they have generated, as they involved the “heavy presumption” against permitting prior restraint, which acts as a de facto gag order against speech before it has been made.

These principles emanate from the famous 1971 New York Times v. U.S. case — known as the Pentagon Papers case — which did not involve media participation in unlawfully accessing the information, but rather purely passive receipt, ala Bartnicki, made with scienter that the source had acted feloniously.

In the 2004 case of People v. Bryant, involving a criminal investigation of noted basketball player Kobe Bryant, Justice Breyer declined to grant a stay from a closely divided Colorado Supreme Court decision that had prohibited the media outlets from publishing sealed documents protected under Colorado's rape shield law that were inadvertently made public for a brief time.

The Colorado Supreme Court justified the publication ban on the basis that allowing the intensely personal information to be published would be “instantaneously irretrievable” on the internet and “irretrievably affect the victim and her reputation.” The state court justices noted that the Supreme Court had only acknowledged the possibility of a prior restraint against a media defendant, but had never actually authorized such an injunction to issue.

Justice Breyer's nuanced and cautious approach in refusing to intervene and grant the media-requested stay from the injunction reflected the same thoughtful balancing of competing interests evidenced in his Bartnicki concurrence. It further suggested he was underwhelmed by the vociferous criticism emanating from the media and scholarly community that such a refusal would be unprecedented and contrary to a long line of Supreme Court precedent.

Indeed, Justice Breyer's approach ignored an entire line of case law granting stays of injunctions, even where the media were active participants in unlawful newsgathering.

In the progenitor case, 1994's CBS Inc. v. Davis, Justice Harry Blackmun had granted the stay of an injunction where the media defendant had been actively involved in unlawful newsgathering by rigging one of complainant's employees with a hidden camera, an action that the lower court had denominated a “calculated misdeed.”

This did not deter Justice Breyer, who later wrote the court's 2005 opinion in Tory v. Cochran, a case involving an injunction against continuing defamatory conduct calculated to extort “tribute.” Justice Breyer took pains to keep the case alive despite litigant Johnnie Cochran's demise, finding that state law permitted the substitution of Cochran's wife and others, presumably his law firm. Dissenting Justices Antonin Scalia and Clarence Thomas found the majority's view “rather remarkable.”

It is this pro-privacy perspective that the court risks losing through Justice Breyer's departure, as a doctrinaire First Amendment successor is far more likely to warmly receive the argument that matters of public concern — even where the matter covered is acquired by a host of unlawful means, such as wiretaps, hidden cameras, trespasses to land, violations of state drone statutes, etc., by the media publisher — should be “bootstrapped” into protected status under the First Amendment.

 This is generally justified by exhorting the Supreme Court to apply some form of balancing analysis heavily weighted in favor of the people's purportedly broad “right to know,” an amorphous standard under which vastly superior media resources will almost invariably ensure victory.

That type of pro-media balancing analysis was specifically rejected in Cohen, despite two vigorous dissents, as well as by Justice Breyer's concurrences in Bartnicki and Snyder. His opinions in Bryant and Tory leave open the possibility that he and the court might even affirm prior restraints in exceptional cases involving private rights, so long as the circumstances justify such extraordinary relief.

To conclude, Justice Breyer is clearly aware that, when balancing the competing interests and issues at stake in First Amendment jurisprudence, the Supreme Court must give due consideration to the serious threats that an unconstrained media armed with ever more privacy-obliterating technology would pose to American democracy.

These include the enhanced disrespect for the media that would be incentivized by according protection to active media participating in unlawful conduct — a distinction of great significance, as the allegations in the Trump suit involve more than purely passive receipt by The New York Times — in unlawfully acquiring materials that it publishes or wishes to publish.

Perhaps Justice Breyer can be persuaded to remain on the court, which continues to need his thoughtful, balanced, carefully reasoned and calibrated voice on First Amendment free expression issues — as, in our firm belief, does America democracy.

David Elder is regents professor of law emeritus at Chase College of Law, Northern Kentucky University.

Neville Johnson is a partner at Johnson & Johnson LLP.

Johnson & Johnson associate counsel Daniel Lifschitz contributed to this article.

Disclosure: The authors were amicus curiae co-counsel in Shulman v. Group W Productions Inc., and appellate co-counsel in Sanders v. ABC Inc.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

[1] Those opinions are relied upon heavily in coauthor David A. Elder's forthcoming book, Newsgathering and the First Amendment: The Press and Media as “Tyrants to the People”.