Judging Journalism: The Turn Toward Privacy and Judicial Regulation of the Press

Abstract

Courts, John Marshall famously declared, must "say what the law is." Increasingly, it seems, they are also called upon to say what the news is. When subjects of unwanted publicity sue for invasion of privacy or other torts, journalists commonly defend on the ground that the challenged disclosures were privileged as newsworthy. Traditionally, courts minimized constitutional concerns by deferring heavily to journalists' own sense of what qualified as news; that a story made the newspapers or the evening news was itself nearly conclusive evidence that the topic was of legitimate public interest and therefore beyond the control of tort law. Recently, however, courts have grown decidedly less tolerant. Driven by mounting anxiety over the loss of personal privacy generally and by declining respect for the press specifically, courts are increasingly willing to impose their own judgments about the proper boundaries of news coverage. Ironically, an emerging tool used by courts to police news outlets is journalists' own codes of professional ethics. By measuring editorial decisions against gauzy internal ethics standards, courts give the appearance of deference to the profession while, in fact, aggressively scrutinizing editorial judgments.

This Article demonstrates the growing threat to press freedom posed by these emerging trends. Part I places the conflict in historical context, showing how evolving legal understandings of privacy and press freedom set the two on course for a modern collision over "newsworthiness," which was resolved initially by deferring to journalists' editorial judgment. Part II explains how recent developments - including growing resort to journalists' codes of professional ethics - have undermined judicial deference to journalism in defining the news. Part III examines the implications of the nascent resurgence of tort regulation of journalism, and Part IV concludes by suggesting ways in which courts and journalists individually might end this narrowing of news.