September 20, 2017

By: Kevin McKeon

Article I, Sections 1 and 11 of the Pennsylvania Constitution

Pennsylvania is one of only a handful of states that recognizes a constitutional right to reputation, and the right is notably absent from the U.S. Constitution.  Constitutional protection of the right to reputation means that Pennsylvania’s state and local governments have less leeway to publicize information or maintain records that may damage a person’s reputation, and that defamation plaintiffs have a better chance of prevailing in Pennsylvania than in other states.  The right, long a part of Pennsylvania law, likely will take on added significance as technological advances continue to create new opportunities to gain easy internet access to records and other information that could damage an individual’s reputation.

Article I, Section 1 of the Pennsylvania Constitution designates the right to reputation as an inherent and indefeasible right:

All men are born equally free and independent, and have certain inherent and indefeasible rights, among which are those of enjoying and defending life and liberty, of acquiring, possessing and protecting property and reputation, and of pursuing their own happiness.

Additionally, Article I, Section 11 provides for a remedy through the courts for injury to a person’s reputation:

All courts shall be open; and every man for an injury done him in his lands, goods, person or reputation shall have remedy by due course of law, and right and justice administered without sale, denial or delay. Suits may be brought against the Commonwealth in such manner, in such courts and in such cases as the Legislature may by law direct.

No similar protection of the right to reputation can be found in the U.S. Constitution – a point that the U.S. Supreme Court has made clear, and that the Pennsylvania Supreme Court has highlighted.  In R. v. Dept. of Pub. Welfare, 636 A. 2d 142, 148-149 (Pa. 1994), in the context of a challenge to an agency’s refusal to expunge a father’s record of child abuse, the court explained:

Lastly, we examine R.’s concern that his indicated report of child abuse is available to numerous persons and agencies. The implication is that R. lives under the cloud of a stigma that threatens his reputation. The United States Supreme Court has already held that reputation is not an interest which, standing alone, is sufficient to invoke the procedural protections of the Fourteenth Amendment’s due process clause. Paul v. Davis, 424 U.S. 693, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976). However, in Pennsylvania, reputation is an interest that is recognized and protected by our highest state law: our Constitution. Sections 1 and 11 of Article I make explicit reference to “reputation,” providing the basis for this Court to regard it as a fundamental interest which cannot be abridged without compliance with constitutional standards of due process and equal protection.

A review of Pennsylvania cases reveals that Pennsylvania’s guarantee to the right to acquire, possess and protect reputation can have tangible positive consequences for the individual.   As Chief Justice Saylor has explained, “[w]hile reputational harm in isolation may appear abstract, such injury can be the occasion for more concrete harms such as termination from employment, loss of opportunities, or adverse actions in relation to custody or visitation rights.”  Schanne v. Addis, 121 A.3d 942, 946 n. 1 (Pa. 2015).

As a fundamental right that the Pennsylvania Constitution protects, a claim that a state law or regulation infringes on the right to reputation triggers strict scrutiny. Pennsylvania Bar Ass’n v. Com., 607 A.2d at 857 (“where the right affected is fundamental, . . . strict judicial scrutiny is applied”).   Strict scrutiny requires that a statute which restricts a fundamental right must be justified by a compelling state interest and also be narrowly drawn to express only the legitimate state interests at stake.  A law or regulation is not narrowly tailored where a less restrictive alternative to accomplish the state’s goal is available.  Whether a law or regulation is narrowly tailored also depends “on whether the state’s intrusion will effect its purpose; for if the intrusion does not effect the state’s purpose, it is a gratuitous intrusion, not a purposeful one.” Stenger v. Lehigh Valley Hosp. Center, 609 A.2d 796, 802 (Pa. 1992).

The right of reputation was the basis for the Supreme Court’s striking down of Pennsylvania’s law requiring mandatory lifetime registration for juvenile sex offenders because registration imposed on every juvenile an indelible mark as a dangerous recidivist, even though the statute’s irrebuttable presumption of recidivism was not universally true, and reasonable alternative means existed for determining which juvenile offenders were likely to reoffend.  In the Interest of J.B., 107 A.3d 1 (Pa. 2014).

Similarly, the right of reputation has been the basis for succeeding on a petition for expungement of incomplete and discontinued protection from abuse proceeding records (Carlacci v. Mazaleski, 798 A. 2d 186 (Pa. 2002)); expungement of arrest records where the accused was tried and acquitted (Com. v. D.M., 695 A.2d 770 (Pa. 1997)); expungement of court records of a psychiatric commitment order determined to be null and void for having not been entered in compliance with due process (Com. v. J.T., 420 A.2d 1064 (Pa. Super. 1980)); and expungement of mental health records where the person was wrongfully committed to a state mental hospital (Wolfe v. Beal, 384 A.2d 1187 (Pa. 1978)).  The right of reputation was likewise the basis for the Commonwealth Court’s order enjoining the Pennsylvania Crime Commission from publishing a report naming individuals as being connected to organized crime figures where the Crime Commission had failed to provide any opportunity to the named individuals to defend themselves in advance of publication of the report. Simon v. Com., 659 A.2d 631 (Pa. Cmwlth. 1995).

Pennsylvania’s constitutional protection of reputation also has impacts on the law of defamation.  As the Supreme Court has stated: “Pennsylvania law closely guards the ability of a person whose reputation has been injured by defamatory statements to obtain redress for such injury” because the Constitution “places reputational interests on the highest plane, that is, on the same level as those pertaining to life, liberty, and property.” Schanne, 121 A.3d at 946.  In Schanne, the court granted the Third Circuit’s petition for certification in a defamation case to answer the question whether, under Pennsylvania law, the judicial privilege extends to an allegation a former student made concerning a school teacher, where the allegation was made before quasi-judicial proceedings were commenced and without any intent that it lead to such proceedings.  Although most courts have long interpreted the judicial privilege so as to be near absolute, the Pennsylvania Supreme Court limited the privilege under the facts presented because of the high degree of deference it accords to reputational interests.

Pennsylvania’s constitutional protection of the right of reputation has been a powerful theory to protect individuals in the past.  It is positioned to be an even more useful basis in the present environment to protect individuals from the unnecessary authorized or unauthorized public release of information that could damage an individual’s reputation.

Join us again tomorrow for another Constitution Week blog where Whitney Snyder will examine the interplay between the equal protection and free speech and assembly clauses under the U.S. and Pennsylvania Constitutions, in particular, how courts have applied these constitutional provisions in gerrymandering cases.

About the Author:

Kevin McKeon, partner at Hawke, McKeon & Sniscak, LLP, represents a diverse array of clients before Pennsylvania state agencies, and state and federal appellate courts. A co-author of West’s Pennsylvania Appellate Practice and immediate past chair of the Pennsylvania Appellate Court Procedural Rules Committee, Kevin uses his comprehensive knowledge of Pennsylvania appellate procedural rules to guide clients through complex appellate proceedings.