First Amendment doctrine is sort of obsessed with the idea of a public/private divide – the idea that we can clearly slice society up into those things that are "public" (about which we want robust discussion, so we protect that discussion with the Bill of Rights) and those that are "private" (less societally important, so less protected). It's always been a line difficult to enforce in practice – at what point is something, or someone, "public"? – but it at least makes a certain conceptual sense.
But (at the risk of turning this into a hackneyed "social media changes everything!" post), social media (maybe) changes (at least some) things. As we take more and more information that the law would traditionally see as "private," and begin publishing it online, the public/private divide is only going to get blurrier.
I'm thinking of Fraley v. Facebook, one of the pending class-actions against our favorite blue friend. A few weeks back, the federal district court denied Facebook's motion to dismiss (full CMLP threat entry here, .pdf of the order here), and there's all kinds of interesting stuff going on (including some chin-stroke-worthy Section 230 stuff, but the Rule 12 stage is too early to say anything on that score). I'd recommend giving the threat entry a skim, but to briefly knock out the need-to-know for my purposes:
The lawsuit surrounds Facebook's introduction of a "Sponsored Stories" ad system, through which Liking companies on Facebook can appear as advertisements to your friends. (The Like shows up as it normally would in your timeline, and also appears verbatim in the right-hand-side ad bar under a "sponsored stories" header.) The plaintiffs are alleging a violation of California's commercial misappropriation statute, which protects against companies using your identity for commercial gain without your consent. Facebook, as you'd expect, has plenty of defenses lined up, but the one I'm interested in here is the "newsworthiness" defense.
The California statute has an exception for "newsworthy" content, which makes sense – news organizations are businesses, so any time they report on someone famous they're doing it for "commercial gain" (i.e. more readership and more money). At this point, for our purposes the statute more or less falls away: as the court says, the "newsworthiness" exemption exists for First Amendment reasons (i.e. the statute would be unconstitutional without it) and it "tracks the constitutional right to freedom of speech[.]"
Facebook raised two arguments as to why the newsworthiness exemption applied to the Sponsored Stories, and it's these, especially the first, that I want to think about here: 1) that Facebook users "are 'public figures' to their friends," and 2) that any "expressions of consumer opinion" are newsworthy in and of themselves. Roll that phrase over in your head for a second: "public figures to your friends." Even granting the ambiguity ("Facebook friends" vs. "actual friends"), the oxymoron-ish-ness of being public to my select group of friends is enough to send me spiraling into an existential crisis. If something is only public to some people, and not to others, what does "public" even mean any more?
The Fraley court (understandably) dodges the chance to call 40 years of public/private First Amendment doctrine into question. (Instead, the court falls back on 9th Circuit precedent saying that using people's identities purely for advertising purposes doesn't qualify for the exemption – also interesting, but that takes us on a detour into the land of Commercial Speech, and I'd prefer to avoid that road for now.) But that seems to be the implication of Facebook's argument: within the walls of Facebook, nothing you do is private.
And in a certain light, it sort of makes sense. Let's take defamation law, since that's the 900-pound gorilla whenever you're talking public/private stuff: your basic Sullivan tells you that public figures can only win defamation cases if they show "actual malice," not just negligence. So, play it out: Say you and I are friends on Facebook. I post something about you, and you know it's false. You feel defamed. You sue me. But if you're a "public figure" in the Facebook world, and that's where my post is seen (let's pretend it doesn't leak out into the real world), then you'd have to show that I posted about you with actual malice. (This hypothetical gets complicated quickly: Are you a public figure to your Facebook friends? Mine? The ones we have in common? For simplicity's sake, we'll say: To anyone who sees the post on Facebook.)
One of the classic justifications for "public figure" status, making it harder for famous people to win defamation cases, is that putting up with false statements about you is part of the deal. When you put yourself into the public light, you have to put up with the consequences – among them, people saying false stuff about you. Sometimes, you'll see people make the related claim that famous people can more readily fight falsehood by accessing mass media (e.g. it's easier for Jay-Z to disseminate his side of the story than it is for you and me (unless you are in fact Young Hov, in which case, thanks for reading; big fan)).
Notice that both of these justifications – basically, the "you asked for it" and "you have the ability to respond" arguments – could apply to Facebook users. Facebook is free and voluntary, so maybe putting up with people saying stupid things is part of the territory. And when I write something false about you, you can easily respond through the same channels and get your side of the story heard.
There's a tinge of this approach in the Fraley order. As part of showing that they have sustained economic harm, the plaintiffs argue that their endorsement of products – by, for example, clicking a Like button – has economic value, just like a celebrity endorsement would have. Facebook, by co-opting that value by selling the Sponsored Stories, thus vacuumed up money that the individual users could have gotten by exchanging their "endorsements" for compensation directly from the advertisers. The court bought this, at least enough to deny a motion to dismiss, and mentioned that "the distinction between a 'celebrity' and a 'non-celebrity' seems to be an increasingly arbitrary one."
Now, I don't mean to overstate the importance of one order in one case. And the motion to dismiss stage is still awfully early, where the plaintiffs get a lot of the benefit of the doubt. But Fraley at least highlights a problem that's only going to grow – the decay of the public/private divide. We're used to applying those categories pretty mechanically (so-and-so involved a matter of public concern, so protection; this guy's a public figure, so protection), but as we reach the point where everything is public, we're going to have to take a step back and ask the harder question: not "Is this public?" but "Is this something the First Amendment should be protecting?"
That's some heavy stuff, and I'm not going to pretend to have answers here. But we're going to need to figure out something workable if we want to preserve the protections we're so fond of. One of the big benefits of the public/private distinction, of course, is its clarity, which lets everybody know where they stand and keeps judges from over-reaching into speech rights in the name of "fairness." Once the fogginess creeps in, it's easier for courts to side with seemingly sympathetic parties against the more abstract speech rights. To fight that, we'll need to be able to present some kind of coherent framework for deciding what gets protected and what doesn't in a world where everything is "public" in one sense or another.
John Sharkey is a CMLP intern in his second year at Harvard Law. He is enjoying the Ricky Rubio experience.