Tuesday, October 20, 2015

Privacy and Freedom of Speech

At the same time American courts were recognizing a right to one's image -- a "right to privacy" -- that made embarrassing or distressing media representations legally actionable, they were acknowledging another kind of image right: the right of publishers, writers, and filmmakers to depict people's likenesses and life stories, and the public's right to consume them -- rights of freedom of speech and press. As I describe in Chapter Seven of Laws of Image: Privacy and Publicity in America, the tension between the right to one's image and the freedom to make images of others came to a head in the important 1940 Second Circuit case Sidis v. FR Publishing.

William James Sidis (credit)
In the years before World War I, William James Sidis was a famous child prodigy. Sidis attended Harvard at eleven, spoke several languages, and was a mathematical genius. Between 1910 and 1920, he was publicized around the world, renowned for his intellectual feats. Yet as an adult, Sidis's life took a different turn. He neglected his mathematical talents and retreated from public life. By the age of twenty, Sidis had become a recluse. At thirty-nine, he was an adding machine operator living alone in a shabby Boston rooming house. The New Yorker magazine tracked him down, interviewed him, and wrote up his story in 1937.

"William James Sidis lives today at the age of 39 in a hall bedroom of Boston's shabby South End." Sidis was a "large, heavy man, with a prominent jaw, thickish neck, and a reddish mustache. He seems to have difficulty in finding the right words to express himself, but when he does, he speaks rapidly, nodding his head jerkily to emphasize his points, gesturing with his left hand, uttering occasionally a curious, gasping laugh....His visitor found in him a certain childlike charm."

Humiliated, Sidis sued the New Yorker for invasion of privacy, for injuries to his feelings caused by the publication of the embarrassing article.

Sidis lost. The Second Circuit concluded that the magazine was not liable to Sidis, and that the tarnishing of Sidis's public image was an inevitable sacrifice to be made for the magazine's right to publish, and the public's "right to know" about the fate of a former celebrity. "Regrettably or not," the court wrote, "the misfortunes and frailties of neighbors and public figures" were subjects of interest to the public. As such, it would be "unwise for a court to bar their expression in the newspapers, books, and magazines of the day."

Sidis was the first decision from a high federal court to imply that the right to privacy could be limited in the interest of freedom of speech. Sidis suggested that the right of the individual to express and control his or her public image impinged on arguably more important rights: the right of publishers to make and circulate images of people, and the right of the public to consume those images.