Abstract:
Amy Gajda, The Class of 1937 Professor of Law, Tulane University Law School, a former journalist and
professor of journalism.
Abstract: When the European Court of Justice in effect accepted a Right to Be Forgotten
in 2014, ruling that a man had a right to privacy in his past economic troubles, many suggested
that a similar right would be neither welcomed nor constitutional in the United States given
the Right’s impact on First Amendment-related freedoms. Even so, a number of state and
federal courts have recently used language that embraces in a normative sense the
appropriateness of such a Right. These court decisions protect an individual’s personal history
in a press-relevant way: they balance individual privacy rights against the public value of older
truthful information and decide at times that privacy should win out. In other words, they
recognize that an individual whose embarrassing past has been revealed by another can sue for
invasion of privacy in the United States, even when the historic information was once public.
This Article explores Right to Be Forgotten-sensibilities in United States jurisprudence and
suggests that such a Right has a foundation in historical case law and present-day statutes. It
argues that the legal conception of privacy in one’s past may have some limited practical and
important purposes but warns that any Right to Be Forgotten must be cabined effectively by
presuming newsworthiness—a word defined similarly in law and journalism—in order to
protect significant and competing First Amendment interests at a time when people in high
places have vowed to curb press freedoms.
