Free Speech vs. Right to Privacy

Summary

The website content discusses the tension between an individual's right to free speech and another's right to privacy, emphasizing the ethical considerations of sharing potentially damaging truths.

Abstract

The article delves into the complex relationship between the First Amendment right to free speech and the right to privacy, particularly in the context of writing and storytelling. The author, an American writer, expresses strong support for free speech but also advocates for the protection of individuals' privacy. The piece raises questions about the responsibility of authors when revealing personal anecdotes in nonfiction or creating characters based on real individuals in fiction. It highlights the importance of altering names and details to preserve privacy and avoid legal issues related to libel and invasion of privacy. The author underscores the ethical dimension of writing about others, suggesting that writers should seek permission and consider the potential harm of their words, even if the information is true and the subject is a public figure. The article concludes by urging writers to reflect on whether they should publish certain stories, despite having the legal right to do so.

Opinions

The author is a staunch advocate for the First Amendment right to free speech.
There is a belief that speech should not only be free but also honest.
The author suggests that writers have a duty to consider the privacy rights of individuals they write about.
When writing nonfiction, the author recommends changing names and details to protect privacy, along with a footnote to indicate such changes.
In the case of fiction, the author advises altering facts sufficiently to prevent identification and potential harm to real-life counterparts.
The article points out that truth is a defense against libel but not against invasion of privacy claims.
The author notes the complexity of privacy laws, citing HIPAA and privileged information regulations as examples.
Public figures are deemed to have fewer privacy rights, but the author questions whether this should justify sharing private information.
Writers are encouraged to obtain explicit permission from individuals they wish to write about and to respect their decisions.
The author's stance is that the legal right to publish something does not necessarily make it the ethical choice to do so.

I have the right to say it, but should I?

As an American writer, I am an unequivocal supporter of our First Amendment right to free speech and free expression.

I also believe that speech should be honest, but that’s not the rabbit trail I want to go down today.

What I want to discuss is the right to privacy of the person you want to write or talk about.

Just because you know something, and just because it’s true, should you share it with others?

Photo by Jerry D. Clement

As you have the right of free speech, others have the right to privacy. As authors and storytellers, how do we balance those rights?

If you’re writing nonfiction and you want to share an anecdote that could be potentially embarrassing, you can always change names and details and add a footnote that names have been changed to protect the privacy of those involved. But what if a reader who knows the people — but not the details you’re writing about — recognizes them?

If you’re writing fiction and want to create characters based on real people, or you want to write a novel based on a real incident, you can alter enough of the facts so that the people or situation can’t be identified. But what if you don’t change enough? What if your story reveals information that damages the real-life person?

Photo by Jerry D. Clement

Truth can protect you from a charge of slander or libel, but not from an accusation of invasion of privacy. There are a lot of truths we might know about people that we are legally blocked from revealing under privacy laws (such as HIPAA regulations; privilege under attorney/client, doctor/patient, and clergy relationships). Some of these laws that are so complicated the courts are still trying to figure them out.

Then there’s the public figure factor. People who put themselves in the public eye lose a lot of their privacy rights. Does that mean it’s okay to publish what you know?

Of course, you can always go to the person involved and get permission to use them in your work. If they say yes, be completely clear about what you intend to write and get a signed release before you publish. If they say no, you have some decisions to make. Do you exercise your First Amendment rights without any regard for the harm it might cause someone else?

Sometimes you just shouldn’t write the story you want to. You could. You may have every legal right to. But should you?

If you shouldn’t, don’t.

Here’s a little more about me:

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Life Lessons | First Amendment | Right to Privacy

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