'The Right to Speak from Times to Time: First Amendment Theory Applied to Libel and Misapplied to Privacy'

Where the injury is to reputation, the important consideration is the underlying rationale that the cure for injury due to speech should not be abridgment of that speech but rather “more speech.”88 Reputations which can be injured by false statements can be rehabilitated by further speech which establishes the truth.89 But this rationale does not apply to invasions of privacy; when publication invades privacy the injury arises from the mere fact of publication, and further speech cannot remedy the injury. Suppose that a nude photograph of a young lady is surreptitiously obtained and published in a newspaper or magazine.90 Assume further that the publication in no way imputes the cooperation of the young lady in making or publishing the photograph, so that no element of defamation exists. The young lady’s privacy injury arises from the mere fact of publication. No amount of further speech can cure the injury-the indignity and humiliation which arose from the initial publication. The fact is that unlike injury arising from defamation, “more speech” is irrelevant in mitigating the injury due to an invasion of privacy.