J.D. Salinger's Privacy Precedent

At the time of his death in February, J.D. Salinger was as well known for the lengths to which he went to protect his privacy as for his stories about Holden Caulfield and the Glass family. Those efforts included litigation, in a case Salinger brought against Random House, publisher of an unauthorized biography called J.D. Salinger: A Writing Life, written by the other named defendant, the writer Ian Hamilton.

Hamilton researched and wrote the book in the mid-1980s, without any assistance from his subject or the vast majority of the subject’s friends and acquaintances. This was not unusual; in several chapters, Hamilton canvassed the many failed attempts by journalists over the years to learn more about the reclusive Salinger, including visits to Cornish, New Hampshire, where Salinger resided, to query the townspeople about the legendary and mysterious author. (Among the townspeople whom reporters approached was Judge Learned Hand, who summered in Cornish and declined to speak to an reporter from Newsweek about his friend and neighbor. In the book Random House eventually published, In Search of J.D. Salinger, Hamilton discussed their warm friendship, as did Gerald Gunther, many years later, in his biography of Hand.)

Though individuals closest to Salinger would not cooperate with him, Hamilton did have access to many of Salinger’s unpublished letters. In the first complete draft of A Writing Life, he quoted from those letters, so that readers might get a sense of the way in which Salinger expressed himself—his “tone,” as Hamilton put it. When Salinger (having obtained a galley copy of the then-unpublished book) objected, Hamilton turned to paraphrasing the letters. But Salinger did not withdraw his objection, and instead sought a preliminary injunction in the United States District Court for the Southern District of New York. Random House defended on the ground of fair use. The defendants prevailed in the District Court, but the First Circuit had other ideas. In Salinger v. Random House, the court reasoned:

To deny a biographer like Hamilton the opportunity to copy the expressive content of unpublished letters is not, as appellees contend, to interfere in any significant way with the process of enhancing public knowledge of history or contemporary events. The facts may be reported. Salinger’s letters contain a number of facts that students of his life and writings will no doubt find of interest, and Hamilton is entirely free to fashion a biography that reports these facts. But Salinger has a right to protect the expressive content of his unpublished writings for the term of his copyright, and that right prevails over a claim of fair use under “ordinary circumstances.”

The U.S. Supreme Court denied certiorari.

The First Circuit’s decision provides protection for unpublished work—at least, it provides protection for the work’s “expressive content,” as distinguished from the “facts.” But does the decision really protect privacy? That depends, of course, on how privacy is defined and measured. Alan Westin famously described privacy as “the claim of individuals, groups, or institutions to determine for themselves when, how, and to what extent information about them is communicated to others.” Privacy, in other words, is about the extent to which we can control the dissemination of information about ourselves.

On this understanding, Salinger v. Random House really doesn’t offer any kind of broad guarantee of personal privacy. To be sure, the decision safeguards those form of the thoughts that we commit to paper but do not publish. And this is something—we may take some comfort in knowing that the law will protect the way in which we choose to express ourselves within the confines of a communication we neither intend nor desire to share with the world.

Importantly, however, the Salinger case provides virtually no protection for the information contained in an unpublished expression of thought, which can be mined for what it is worth. “The facts,” the court concluded, still “may be reported.” In short, Salinger’s effort to stop disclosure of his unpublished letters resulted in a decision that shields the words with which we choose to explain ourselves, not the substance of what we say.

Lawrence Friedman

Free Speech and Its Limits

In the wake of the United States Supreme Court’s decision in Citizens United v. Federal Election Commission, in which a majority of the Court lifted certain restrictions on corporate political speech, a Washington Post poll revealed that 8 in 10 respondents opposed the decision. Senator John Kerry, among others, announced his support for a constitutional amendment to overturn the decision and “to make it clear once and for all that corporations do not have the same free speech rights as individuals.”

Amendments to the United States Constitution are rare. The document has been amended just twenty-seven times since 1787; a raft of amendments, including the First Amendment, following almost immediately in 1789, and the most recent amendment was ratified in 1992, more than two hundred years after it was first proposed.

Yet this is not the first time a U.S. Supreme Court decision interpreting the First Amendment expansively has triggered the impulse to amend. Consider the Court’s decision in Texas v. Johnson, more than twenty years ago, in which the Court concluded that, whether we like it or not, the First Amendment protects symbolic expression, including flag burning.

At the time, Texas and a majority of the states had laws on the books prohibiting desecration of the American flag. The case concerned a demonstration at the 1984 Republican National Convention in Dallas. Johnson, while marching with other protestors at the demonstration, doused an American flag in kerosene and set it on fire. After a Texas appellate court overturned Johnson’s conviction, the state appealed to the U.S. Supreme Court, arguing that its interests in preserving the flag as a symbol of national unity and in maintaining order were sufficiently important to overcome the speech protections of the First Amendment.

The Court rejected these arguments, holding that flag burning may be protected as symbolic speech when the speaker intends to send a particularized message that is likely to be understood by observers. The Court noted that there was not in fact a breach of the peace because of Johnson’s flag burning. As for the interest in preserving the flag as a symbol of nationhood, the Court concluded that the state was essentially trying to promote one view of the flag and to punish those who did not agree with that view. But under the First Amendment, as Justice William Brennan wrote for the majority, “the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.”

Needless to say, Texas v. Johnson did not end national debate about the issue. Far from it. Following the decision’s release, Congress tried to make it a crime to desecrate the flag, but the Court struck that law down, too, on similar grounds.

Flag burning is still with us: as several local media outlets reported last summer, residents of Rockland, Massachusetts, were upset about the owner of a used car lot who displayed an upside-down American flag on his property to protest the refusal of town officials to renew the license for his lot. One resident, whose son was killed in Iraq, saw the display of the upside-down flag as a sign of disrespect for the men and women who have died in service to the nation.

Many Americans would agree with this sentiment. But not enough, apparently, to fully engage the machinery of constitutional amendment. Indeed, though various efforts have been made since Texas v. Johnson to pass an amendment that would allow the federal and state governments to ban flag desecration, each has failed—despite the fact that a majority of Americans claim to support such bans. Which raises questions: if an effort to undo Texas v. Johnson has yet to succeed, will an effort to undo Citizens United fare any better? Or, is it more likely we will come to acknowledge, as we have in the years following Texas v. Johnson, that, while certain speech cannot be restricted under the First Amendment, honoring that principle does not necessarily mean we have to credit either the message or the speaker?

Lawrence Friedman