Academic journal article Communications and the Law

Political Candidates and Medical Privacy: How Much Does the Public Need to Know?

Academic journal article Communications and the Law

Political Candidates and Medical Privacy: How Much Does the Public Need to Know?

Article excerpt

There has been a great deal of controversy recently concerning the lack of privacy for public figures. This article focuses on a particular type of public figure, the political candidate, and examines the political candidate's great need for, but limited legal rights to, medical privacy. The controversy that took place during the 1996 presidential election over President Clinton's reluctance to match Bob Dole's release of his full medical records(1) highlights a dilemma that has confronted our electoral process for many years: What is the proper balance between a political candidate's right to privacy and the public's right to know? More specifically, how much of a candidate's medical history should the electorate expect the candidate to reveal? Our country currently has neither a policy nor clear expectations on medical disclosure for presidential candidates.

An examination of the health of our former presidents reveals that throughout this nation's history, many of our leaders were plagued by serious medical problems. Because the media was less aggressive in the past, some presidents were able to conceal their illnesses.(2) When President Eisenhower, however, suffered a serious heart attack in 1955 and disclosed all of the details to the public, the state of the president's health became a topic of national curiosity and concern. The American public began to feel that it had a right to know all such news. This expectation has caused health disclosure to become a distracting factor in political contests, inviting irrational prejudice and diverting attention from the true issues of the campaign.(3)

If the candidate has been discreet, his or her medical history will be protected by the rules of doctor-patient confidentiality. But a political candidate cannot hide behind legal rules. Because the candidate is asking for the public's trust he or she must provide the information that the public expects. The problem with medical disclosures is that there are no standards for what information should be revealed. Thus the public's expectations have been equated with the media's appetite for information, eliminating any limitations on disclosure and any medical privacy for the candidate. Expecting candidates to reveal their entire physical and mental health history can be prejudicial to the candidate, detrimental to our political system, and distracting from the true question of which candidate would be a better leader. The key question in setting limitations is: What is relevant to the candidate's potential performance in office?

This article examines the common law right to privacy, and the jurisprudence that has subsequently eviscerated it, demonstrating the difficulty that the courts have faced in making this type of content-based determination about what type of information is relevant or "newsworthy." The courts' rhetoric indicates great respect for the privacy right, yet courts have consistently ruled against privacy interests in favor of First Amendment speech interests. This is because most privacy torts are brought against the press, and the courts feel obligated to create clear boundaries that will not chill the media's exercise of its First Amendment rights. As a result, current privacy law does not adequately balance individual interests with First Amendment values.

This article does not propose any alteration of the courts' "news-worthiness" standard, which balances an individual's right to privacy against First Amendment free speech protections. Such a revision is highly unlikely and would be of no help to political candidates anyway. Instead, this article argues for a standard to be set by Congress limiting what presidential candidates should be expected to disclose about their physical and mental health. The standard for the disclosures that a candidate should make when running for the presidency should consist of the candidates' personal physician stating whether, in that doctor's opinion, the candidate would most likely be able to carry out the powers and duties of the presidency for four years. …

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