Rebecca Green has posted this draft on SSRN (forthcoming, Washington Law Review). Here is the abstract:
In the United States, we have long accepted that candidates for public office who have voluntarily stepped into the public eye sacrifice claims to privacy. This refrain is rooted deep within the American enterprise, emanating from the Framers’ concept of the informed citizen as a bedrock of democracy. Voters must have full information about candidates to make their choice at the ballot box. Even as privacy rights for ordinary citizens have expanded, privacy theorists and courts continue to exempt candidates from privacy protections. This Article suggests that two disruptions warrant revisiting the privacy interests of candidates. The first is a changing information architecture brought on by the rise of the internet and digital media that drastically alters how information about candidates is circulated. The second is a shift in who runs for office. As women and minorities—overwhelmingly targets of the worst forms of harassment—increasingly throw their hats in the ring, this Article argues that competing democratic values should challenge previous assumptions about candidate privacy. Far from suggesting easy answers, this Article offers a framework for courts to weigh candidate privacy interests in a more nuanced way, drawing on vetting principles for aspirants for other positions of public trust. While there are good reasons candidates should have far less privacy than ordinary citizens, the reflexive denial of candidate privacy must have its limits if we care about nourishing our evolving democracy.