01-2971 Willan v. Columbia County, et al.

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“Although several provisions of the Constitution protect privacy in the sense of confidentiality, including the Fourth Amendment and the self- incrimination clause of the Fifth Amendment, the only place to look for a general right of informational privacy would be the due process clause of the Fifth Amendment or (in this case, in which the defendants were acting under color of state rather than federal law) of the Fourteenth Amendment. Information about oneself, such as one’s criminal history, would have to be deemed a form of liberty or property, and the unjustified disclosure of such information a violation of (substantive) due process. Paul v. Davis, 424 U.S. 693, 711-13 (1976), holds that the interest in reputation is not a form of liberty or property within the meaning of the due process clauses and therefore is not protected by those clauses, and it is reputation that Willan seeks to protect by concealment of his criminal record. Even if reputation were a form of constitutional property, it would not be infringed in any invidious sense by the disclosure of legitimately discreditable information about a person, such as his criminal record. No one should have a right to induce other people to deal with him on the basis of false pretenses, a contrived and misleading reputation. It would be a considerable paradox, quite apart from the First Amendment, to allow a person to obtain damages for the disclosure of his criminal record when if he had sued for defamation his suit would be barred by the defense of truth.”

Affirmed.

Appeal from the United States District Court for the Western District of Wisconsin, Shabaz, J.