Is the First Amendment a repressed memory? 

Elizabeth Loftus was named the top-ranked female psychologist of the 20th century by the prestigious Review of General Psychology and is one of a handful of psychologists who have been elected to the National Academy of Sciences and the American Academy of Arts and Sciences. She has written or co-written 20 books on memory and published more than 350 scientific articles.

She is being sued by Nicole Taus, who has accused Loftus of misrepresenting herself to Taus’ foster mother, in order to get information to challenge Taus’ claim that she recovered memories of childhood abuse. Loftus has denied that she misrepresented herself to Taus’ foster mom.

Loftus has been a constant critic of the theory of repressed memory, which posits that the mind unconsciously blocks intense pain resulting from traumatic experiences by repressing those events. Repressed memory advocates aver that people may remember the traumas accurately years later with the help of therapy.

Taus has alleged in her lawsuit, which was heard on appeal by the California Supreme Court last month and will be decided in the next two months, that Loftus invadedTaus’ privacy. What Loftus did was to expose fallacies in the research of David Corwin, a psychiatrist who "helped" Taus recover memories of abuse at the hands of her mother.

Loftus’ groundbreaking studies over the last 30 years have educated the public about the dangers of relying on supposedly recovered memories. Loftus’ research demonstrates that memory is both malleable and fallible. She has consulted and testified in hundreds of cases, including the McMartin preschool molestation case, the Hillside Strangler Case, the trial of Oliver North, the first Michael Jackson case, and the Oklahoma City bombing case. She has also consulted with government agencies including the FBI, the U.S. Secret Service, the Internal Revenue Service and the Department of Justice.

More recently, Loftus and her colleagues have demonstrated that it is possible to implant false "recovered" memories in some people by proposing certain implausible scenarios that may have befallen those people many years before.

While Taus v. Loftus would seem to be a researcher’s internecine squabble, the outcome has ramifications far beyond the laboratory or psychiatrist’s couch. In addition to the dozens of scholars and scientists that joined in a brief supporting Loftus, media organizations such as the Los Angeles Times, The New York Times and the Hearst Corporation have asked the court to dismiss the lawsuit against Loftus. Those news organizations rightly believe that if the court allows Taus’ lawsuit to proceed that they themselves could become victims of "would-be plaintiffs who seek to curtail subsequent adverse press reports about them."

A Wall Street Journal editorial this past week opined that a decision favoring Taus would have a chilling effect on First Amendment rights. The Journal equated Loftus’ scientific inquiry with in-depth news investigation of matters in the public interest.

Taus has asserted the novel proposition that her privacy was invaded by Loftus’ questioning of her foster mother. Even if one discounts Loftus’ assertion that she did not misrepresent herself, it is hard to see how Taus’ privacy was invaded by a third-party disclosure that Taus had no right to prevent.

Finally, as the Journal editorial pointed out, Taus "gave up any privacy with regard to the repressed memory issue when she voluntarily injected herself into this public controversy — by repeatedly consenting to Dr. Corwin’s public display of the videotapes and the disclosure of intimate private facts about her life."

The California Supreme Court should dismiss this case.

Patrick Mattimore is a member of the Society of Professional Journalists and an attorney. He teaches psychology at a college preparatory high school in San Francisco.

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