21.

TORT LAW TO THE RESCUE OF DIGNITY

When the floodgates to privacy are open, human dignity is drowned in the deluge. If privacy is constitutionally protected, so too, then, must dignity, because when one is treated with dignity, one possesses the respect afforded to a private life.

CRIMINAL LAWS FAVOR speech rights over dignitary rights. The law of torts offers much stronger legal protections for self-esteem and self-respect. For instance, the common law tort of battery can involve the nonconsensual indignity of spitting in another person’s face. The physical harm of such an affront is minimal. But its assault on human dignity is immense. And because it is a battery, unlike common law negligence, harm is not even an element of the tort. The indignity itself is sufficient to create liability.

This very thing happened in 1872, in a case before the Supreme Court of Illinois. In a crowded courtroom, and in the presence of many onlookers, one party to the action deliberately spat in the face of the other. The court ruled that damages in the amount of $1,000 was not excessive, stating that the act “was one of pure malignity, done for the mere purpose of insult and indignity. An exasperated suitor has indulged the gratification of his malignant feelings in this despicable mode.”²⁰¹

Nearly a century later, this time in Texas, an African-American NASA scientist was about to make his selection at a luncheon buffet when a restaurant manager ripped his plate from his hands and announced to the assembled diners that the scientist would have to find some other place to eat on account of his race. No other physical contact or harm to his body had occurred. The court nonetheless found the restaurant manager liable for a battery, ruling that, “[p]ersonal indignity is the essence of an action for battery; and consequently, the defendant is liable not only for contacts which do actual physical harm, but also for those which are offensive and insulting.”²⁰²

In neither of these cases had the plaintiffs been physically harmed. The injuries were to their human dignity alone. The personal humiliation and the contemptuous treatment was enough to trigger liability in tort. Both plaintiffs, under the aforementioned Talmudic principle, had been drained of their blood. Each had been deprived of his sense of security and personhood. Each court crystalized the tortious acts as harms to dignity—without any further showing of physical, tangible injury. Indignity was damage enough.

But, paradoxically, this is not the case with speech. The inner life of the human being somehow gets lost in any discussion about the First Amendment. All we seem to care about is the right of a speaker to blast his message acoustically. A parallel right to silence, private peace, and public security is ignored. This, despite precedent in tort to safeguard human dignity.

Spitting in someone’s face; swiping a plate from the hands of a diner—both tortious acts. Burning a cross in front of an African-American—a perfectly lawful expressive act.

How can the legal system justify such disparate treatment? Either dignity matters, or it does not.

But it most assuredly does. A citizen’s inner life should also be relevant under the First Amendment. And the maintenance of an inner life is a privacy right, which already exists under the law. After all, the right to personal dignity, which is so often incompatible with another’s right to free speech, is itself a right to privacy. To maintain one’s dignity against another’s assault is to claim a privacy right in personhood and personality. A right to privacy, framed as responsible citizenship, would incorporate into the First Amendment the rights and protections the Framers imagined.

Before Louis Brandeis became a Supreme Court Justice, he coauthored, in 1890, a groundbreaking law review article that was the first to introduce a right to privacy that took account of the emotional life of a human being. In doing so, the article embraced human dignity as more than merely a value submerged within the Constitution. It made express what had been implied. Constitutional rights cannot ignore the privacy and dignity of citizens, which stand as checks against freewheeling liberty and overreach. Here in Brandeis’ article was human dignity elevated to the status of a new tort—one that would eventually find itself applied to the Constitution itself. Human beings were entitled to “an inviolate personality”—the consolidated emotions, sensations, and thoughts that comprised an individual’s inner world.²⁰³

Brandeis, like Kant, believed that the self-worth of a human being should not be used as an object for someone else’s pleasure. Unwanted exposure to the public hijacks an individual’s life and transforms it into a plaything. The personal is lost when a human being becomes an object for public viewing. What one wished to keep private was suddenly subject to public scrutiny and ridicule. The right to a private life entails the solitude and protection of being able to keep one’s private affairs private.

The tort known as invasion of privacy recognizes the integrity of an individual’s unique personality. Human dignity is so vital, a violation of personality can even take place without the victim’s knowledge. Eavesdropping on another’s conversations, for instance, or filming someone having sexual relations, violates a right to privacy. In 2016, an invasion of privacy lawsuit brought by the former professional wrestler known as Hulk Hogan body slammed the salacious online magazine Gawker right out of business (with some assistance from venture capitalist Peter Thiel, who financed the litigation), for having disseminated a sex tape of Hogan without his consent.²⁰⁴ Many people wrongly concluded that the case was one of defamation. But Hogan had not been defamed. There was no untruth revealed by Gawker. He had sex with a married man’s wife. That was true, but did Gawker have a First Amendment right to invade Hogan’s privacy and publish a sex tape for all the world to see? A court said no. Hogan’s dignity mattered more than Gawker’s freedom of the press.

The rule is clear: One is entitled to live a life with one’s dignity intact. Yet this principle seems to fall apart once one enters the boisterous arena of the First Amendment, which serves as a legal loophole for assaults on human dignity cynically disguised as free speech.

Dignity is in danger when privacy is imperiled. When the floodgates to privacy are open, human dignity is drowned in the deluge. If privacy is constitutionally protected, so, too, then, must dignity, because when one is treated with dignity, one possesses the respect afforded to a private life. Brandeis and Warren explained the modern problem of the many ways in which the individual can have one’s privacy invaded and the harm that immediately ensues. In one especially relevant passage focusing on harmful gossip, they wrote, “Each crop of unseemly gossip . . . becomes the seed of more, and . . . results in a lowering of social standards and of morality. Even gossip apparently harmless, when widely and persistently circulated, is potent for evil. It both belittles and perverts. It belittles by inverting the relative importance of things, thus dwarfing the thoughts and aspirations of people. When personal gossip attains the dignity of print, and crowd[s] the space available for matters of real interest to the community, what wonder that the ignorant and thoughtless mistake its relative importance.”²⁰⁵

As the right to privacy in civil tort evolved, case law began to recognize four types of tortious behavior that constitute a violation of the right to maintain an inner life: the intrusion upon personal seclusion; appropriating someone’s name or likeness; the public disclosure of private facts that is of no legitimate concern to the public at large; and the disclosure of private facts in such a way as to portray a victim in a “false light.”²⁰⁶ Each of these privacy claims, at their core, involves a violation of human dignity. In each context, a dignified life is severely compromised.

The logic then becomes: If invasions of the right to privacy constitute a tort, and if privacy and dignity occupy the same sphere of an individual’s inner life, then any harm that comes to human dignity should command the same level of legal respect—whether in tort or as a criminal matter brought by the state.

Privacy and dignity are one and the same. The First Amendment is not a superseding right; it does not trump all other liberties or constitutional guarantees. Free speech exists, but it must coexist with other rights that preserve human dignity. If speech cannot maintain its expressive power without causing harm to human dignity, then it must forfeit its constitutional protection until it learns how to play well with others.