The First Amendment Bubble: How Privacy and Paparazzi Threaten a Free Press
Gajda, Amy. The First Amendment Bubble: How Privacy and Paparazzi Threaten a Free Press (Harvard University Press 2015).
2 Pages Posted: 15 Jun 2017
Date Written: June 5, 2017
Chapter One: An Introduction Hulk Hogan, wrestler, and William Conradt, prosecutor, both suffered media-related privacy invasions: Hogan through publication of a surreptitiously-recorded sex tape and Conradt through coverage of his arrest for child sex solicitation. Hogan lost his initial claim (courts found news value in the sex tape) while Conradt posthumously won his (the court found that media had overstepped its bounds). These surprisingly disparate outcomes show that courts are at best confused regarding media’s newsworthiness determinations, that today’s media continue to push to expand the bubble of First Amendment protection, and that something must change to protect both privacy and press freedom in this new media age.
Chapter Two: Legal Protections for News and Truthful Information: The Past The U.S. Supreme Court once wrote broadly in support of news media, lauding the press for its key role in democracy and nation building. The Court was protective even of sensational and scandalous coverage, finding this sort of truthful reporting worthy of the same constitutional protection as great literature. This modern tradition of press protection over individual privacy rights, however, was built upon the premise that journalism was ethical and could be trusted to do the right thing — a premise that is increasingly in doubt. A resulting jurisprudential shift is underway that increasingly protects privacy over press freedoms.
Chapter Three: Legal Protections for News and Truthful Information: The Present Today, more U.S. courts are trimming press rights in privacy-related cases, favoring an individual’s privacy rights over press freedoms. These cases often involve accurate coverage and suggest that courts are out of touch with public perceptions of newsworthiness: courts have restricted access to governmental information including court and police records, have condemned traditionally newsworthy coverage of crime and tragedy, and have limited celebrity coverage in favor of intellectual property rights. As judges value journalism less and individual privacy more, some of them have specifically blamed the shift on an increase in push-the-envelope media.
Chapter Four: The Devolution of Mainstream Journalism Recent examples abound in mainstream journalism of the envelope-pushing behavior that courts condemn: news organizations have published shocking photographs (including one of a man about to be killed by a subway train), advertising-enhanced mug shots of mundane arrestees, online comments that predictably turn nasty after crime coverage, and so-called viral videos that are sometimes surreptitiously recorded and humiliating for their unwitting subjects. These examples also seem to cross journalism’s ethics boundaries, internal curbs on coverage that had given courts good reason to trust news media in the past. These and other examples could well be why today’s courts value even mainstream journalism less.
Chapter Five: The Rise, and Lows, of Quasi-Journalism Quasi-journalism (publications that often do not follow traditional journalistic ethics and that publish information that can be truthful and accurate but envelope-pushing and privacy-invading) includes websites such as (in part) the former Gawker, The Dirty, and revenge porn websites that encourage and use audience-generated material. Decisions against these quasi-journalistic publishers can affect all media: disgusted courts in such cases have found privacy rights in public places, have limited access to government information once freely accessible to trusted reporters, and have rejected statutory legal protection that once protected all websites. Quasi-journalistic publishers, therefore, have helped to create a legal environment that is more generally hostile even to mainstream journalism.
Chapter Six: The New Old Legal Call for Privacy In 1890, Samuel Warren and Louis Brandeis published The Right to Privacy, a now-celebrated law review article that called for greater privacy rights and a more legally-restrained press. Its rhetoric that celebrates privacy and condemns media has become famous in legal circles — and well more than a century later, today’s courts use the identical language in their decisions against the press. By some measure, and in some courtrooms, it is 1890 again, as judges condemn sensationalism and scandal, idle gossip, and an out-of-control media, just as did Warren and Brandeis, strengthening the right to privacy as they go.
Chapter Seven: The First Amendment Bubble, Absolutism, and Hazardous Growth There is conflict between the way courts interpret First Amendment freedoms and what media believes is constitutionally protected. One push-the-envelope publisher has maintained that he can publish whatever he wants, a constitutional interpretation that is not that far from what many in mainstream journalism believe. Today’s publishers have argued that they have a constitutional right to sell coffee mugs featuring images of accident victims, to use high-powered cameras to capture images of unsuspecting people in high-rise apartments, and to tell unattended children on camera about a murder-suicide next door. Such First Amendment zealousness, some say, threatens media as much as media’s critics.
Chapter Eight: Drawing Difficult Lines It is difficult to draw lines between journalist and quasi-journalist, between “newsworthy” stories and those that are not, and between journalism and other truthful, privacy-invading publications. But such lines are necessary today as judges struggle with claimed First Amendment-based rights to publish sex tapes, as they decide who should be protected through reporters shield laws, and as they interpret legislation that protects websites from liability for readers’ posts, seemingly guarding even those that encourage revenge porn. Such line-drawing — along with education, ethics, and an appreciation for both privacy and press — will help protect those who are most deserving of protection.
Keywords: privacy, media law, journalism, newsworthiness, publication of private facts, right to be forgotten, First Amendment
JEL Classification: K00, K13
Suggested Citation: Suggested Citation