II. Track One Laws Concerning Messages That Cause Harm in One Step

Recall that in Chapter Four, we divided Track One laws - laws designed to suppress expression the message of which causes harm - into those that were concerned with messages that caused harm upon receipt by the audience (one- step harms) and those that cause harm through inducing the audience to engage in harmful actions (two-step harms).

The Track One laws of concern here include the laws protecting government and trade secrets, the laws protecting confidential communications, the laws protecting informational privacy, the laws protecting intellectual property, the laws protecting sensibilities from offense, the laws enforcing promises not to reveal information, and so on. All of these laws apply legal sanctions to expressive acts defined by the content of the expression. All of these laws protect against harms that are suffered as soon as that content is expressed to an audience. In some instances, the harm in question might be protected by a deontological right. (This might be the case for intellectual property rights that have Lockean justifications, or for contractual rights with respect to expression, and perhaps even for some privacy rights or rights against offense.) In other cases, the protection from message-caused harm might be based on an indirect- consequentialist argument to the effect that prohibiting expression will lead to a greater amount of such expression or to other benefits that outweigh the losses of information. Copyright laws, for example, are frequently justified, not by appeals to a Lockean right of the creator, but by appeals to the incentives for producing copyrightable works that copyright protection provides. And the laws protecting clients’ confidential communications from disclosure by lawyers or physicians are usually justified by citing the benefits, in terms of legal justice and medical treatment, of clients’ being forthcoming to and candid with lawyers and physicians, better enabling the legal system to function properly.

When expression is prohibited because its content renders it violative of a deontological constraint, there is no work for a right of freedom of expression to do other than to ensure that the legal protections against such expression do not extend beyond those necessary to enforce the deontological constraint. When restrictions on expression have an indirect-consequentialist justification, the question is whether the costs of suppression over the specified range of cases - for example, the costs represented by the loss of information that would have been revealed but for the rules protecting confidential communications - exceed the benefits from suppression. In the case of the rules protecting confidential communications, to do the cost-benefit analysis, one would have to know how much information would be lost to lawyers and physicians were confidentiality not protected and what would be the effects of that loss on the administration of justice or on health care. The most one can do is make a guess about these effects. On the other side of the balance, one would have to weigh the benefits of revealing confidential communications. But even without a requirement of evaluative neutrality, calculating those benefits will be arbitrary. That is so because we lack the information that would be revealed and so cannot assess its value. Nor do we have an actuarial table that would tell us that we are X percent likely to discover that a candidate for senate committed a murder, Y percent likely to discover that a famous scientist committed fraud, and so on. We are in a realm of pure uncertainty with respect to the informational benefits of eliminating the protection of confidential communications. And the same problems of constructing an indirect-consequentialist balance beset us if we subdivide confidential communications in various ways, for example, distinguishing revelations of crimes of violence from revelations of fraud, or revelations by candidates for political office from revelations by others, or revelations to lawyers from revelations to doctors or priests.

My conclusion is that with respect to Track One laws involving one-step even if the requirement of evaluative neutrality is dropped, the area is much too speculative for any countermajoritarian (constitutional) right of freedom of expression. At most, courts could prevent the notions of privacy and offense from becoming so capacious that practically all expression could be deemed violative of privacy or offensive. Or courts could prevent intellectual property rights from being extended beyond any conceivable Lockean justification or point of optimal incentives for creativity. In the United States, under the First Amendment, the protection of privacy is limited by the notions of “newsworthi­ness” (surely not evaluatively neutral) and “embarrassing” (ditto); the protection against offense is limited by the public figure/private figure distinction, by social conventions regarding what is “offensive,” and by some sort of public interest or newsworthiness standard (that ties into conventions regarding offense); intel­lectual property is limited by doctrines of “fair use” and the “idea/expression” distinction; secrecy is limited to national security matters; and confidentiality protection is limited to the particular relationships in which legislatures have to date allowed it to be invoked (lawyer-client; physician-patient; priest-penitent; in camera official proceedings; and occasionally others).

III.