'Thou Shalt Not Go about as a Talebearer among Thy People: Jewish Law and the Private Facts Tort' by Elie Mischel in (2006-7) 24
Cardozo Arts & Entertainment Law Journal 811 comments
As we begin the twenty-first century, the viability of the public
disclosure of private facts tort in America very clearly has been
called into question. Indeed, the individual's right to keep
sensitive personal information private has been under fire for
some time; its very existence threatened by an increasingly broad
interpretation of the right to free speech. The classic example of the inherent conflict between the right to privacy and free speech
occurs when a newspaper publishes information about an
individual that is embarrassing, yet truthful.' Theoretically, the
newspaper should be liable for the public disclosure of a private
fact. However, the courts have generally granted the media
tremendous leeway in publicizing truthful information, effectively
rendering the private facts tort impotent in all such cases. Legal
thinkers like Diane Zimmerman have taken the next step,
questioning the very validity and desirability of the private facts
tort. Indeed, many of the arguments marshaled against the
private facts tort have proved quite convincing.
In such an atmosphere, it may prove very rewarding to those
debating the scope of an individual's right to privacy to consider
the approaches of other legal systems in the matter of privacy and
the law. In particular, the traditional Jewish legal system has
developed a novel approach to privacy that may shed some light
on the efficacy of the disclosure of private facts tort in the United
States.
Part I of this Note chronicles the evolution of the private facts
tort in the American legal system and the challenges posed by
numerous critics to its legitimacy and effectiveness as a cause of
action. Part II examines some fundamental differences between
the American and Jewish legal systems, focusing on the interplay
of law and morality, as well as the role of human rights in both
systems. In addition, the Jewish legal system's approach to
freedom of speech and its expression in Jewish history are also
considered. Part III analyzes Jewish law's rough equivalents of the
private facts tort, Lashon Hara and Tzeniut, highlighting some
significant differences between the two legal systems' approaches
to privacy law. Part IV compares the application of American and
Jewish privacy law to damages for the violation of privacy rights.
The conclusion argues that while the Jewish equivalent of the
private facts tort is entirely legitimate within the Jewish system of
divine law, the private facts tort represents an improper imposition
of a particular set of values upon American society.
Mischell goes on to comment
As noted above, both Jewish and American legal thinkers testify to
the fact that money does little to compensate the victim of
disclosures of private fact. Consequently, the primary purpose
of the existence of the private facts tort in American law is to
prevent such disclosures in the first place and to "chill" the
media. For Warren and Brandeis, the chief aim in creating the
tort was not to make the victims of such invasions whole again, but
rather to prevent increasingly insidious invasions of privacy from
recurring in the future. Conceptually, monetary damages
awarded under the private facts tort are more punitive than
compensatory. Jewish law, by contrast, does not rely on punitive
damages to protect against violations of privacy. The right to
privacy is protected by a greater authority, i.e., God Himself.
It is now useful to return to Stanley Ingber's three purposes
for the private facts tort. In what way does Jewish law respond to
these goals? The first objective in establishing a tort is to publicly
acknowledge the very existence of privacy rights by recognizing
their violation." For its part, Jewish law succeeds in clearly
establishing a right to privacy by creating an extensive web of laws
regulating every aspect of speech. Through repeated and earnest
warnings and injunctions, both the Bible and the Talmud limit
man's right to speak as he pleases. The second objective of the
private facts tort is to act as a deterrent to other members of the
media who might have committed the same violation of privacy
rights. This goal, too, is met quite effectively by the Jewish legal
system despite the lack of pecuniary repercussions for those who
ignore the law. The divine nature of the law itself acts as a
safeguard towards observance. The final goal of the private facts
tort is to compensate the plaintiffs whose private lives have been
exposed to the public. According to Jewish law, however, this
goal simply cannot be accomplished. Emotional harm cannot be
made whole through monetary compensation.
Mischel concludes
Privacy and modesty are clearly and unambiguously assigned
primary importance within the scheme of Jewish law. Jewish legal
scholars are not troubled by arguments that gossip is essential to a
working society, nor are they concerned by any contradictory right to free speech. As privacy represents a central element of Jewish
law, it is safe to say that Jewish scholars would encourage a similar
kind of law in other legal systems. Though Jewish law does not
mandate damages for non-physical violations of privacy, it can be
argued that its legal scholars would encourage the existence of
such a tort in a secular system lacking the inherent coercive power
of a divine system of law.
Jewish law, in practical terms, is only effective so long as the
people believe in its foundational values. Although it is technically
binding upon every Jew, simply by virtue of his or her being born
Jewish, a Jew who does not agree with Jewish law is under no
compunction to follow it. Nevertheless, regardless of the people's
level of observance, Jewish law remains inherently valid. Due to its
divine nature, the Torah and Jewish law dictate standards of
morality to the people, and not vice versa.
American law, by contrast, depends upon the continued
ideological support of the majority of its citizens. Consequently,
American law can only maintain its legitimacy by conforming to
the belief system of a majority of its citizens; as notions of morality
change, so does the law. No part of the law is "divine";
theoretically, should a great majority of Americans wish to amend
every last letter of the Constitution, they would have the right and
ability to do so. Indeed, the First Amendment has achieved its
present power and influence only because the American people
have assigned increasingly more importance within their scheme
of values to the notions of self expression and personal choice. As
such, Americans are commonly upset when they perceive justices
to be "legislating from the bench," or imposing a belief system
upon society that is not consistent with the values held by a
majority of the people.
Although a majority of the states appear to have recognized
the private facts tort as legitimate, plaintiffs rarely win such
cases. This is, of course, no accident. As standards of morality
have grown increasingly liberal, judges, in a conscious and
justifiable effort to keep up with contemporary values, have
correspondingly narrowed the applicability of the private facts
tort. As explained above, we live in a culture that values the
exposure of "prurient details of sexual relations" and supports a
thriving trade of "unseemly gossip." Given such a culture, were
judges to strictly apply the private facts law as originally intended,
they would essentially be imposing an outdated ideological
perspective upon society.
Modern proponents of Jewish law cannot ignore the
prevailing cultural norms of society. Nevertheless, as a system of
religious law, it is precisely the mission ofJewish law to reject those
social norms and encourage an alternative system of values among
its adherents. Whereas the private facts tort represents an
inappropriate imposition of a particular value system in American
law, its Jewish equivalent, Lashon Hara, embodies the unique
ability of Jewish law to influence the consciousness of its
adherents.
The picture of an American people obsessed with gossip, so
compellingly painted for us by Warren and Brandeis, has no doubt
come to fruition. But it is for this very reason that the solution
they suggested, the private facts tort, is no longer viable. Secular
law, by its very nature, lacks the right to dictate values and morality
to the people. For those troubled by America's culture of
exposure, the task at hand is not to legislate against it, but to
change the culture itself.
