Amy Gajda, The First Amendment Bubble: Legal Limits on News and Information in an Age of Over-Exposure
Comment by: Samantha Barbas
Workshop draft abstract:
In Fall of 2012, magazines and websites published clandestine nude photographs of Kate Middleton, Duchess of Cambridge, passages from deceased ambassador Christopher Stevens’ personal diary pilfered by CNN reporters at the scene of the ransacked consulate in Libya, and hidden camera video of wrestler Hulk Hogan engaging in graphic sexual activity with a friend’s wife.
We live today in an age of over-exposure in media, bombarded with images and information once thought inappropriate for public consumption, much of it self-published. The feed of internet postings and other publications have combined with significant changes in media practices to fuel a sense that, when it comes to public discourse, anything goes, and that media is only too happy to facilitate.
These changes are undermining the constitutional sensibility that has protected press rights and access to information for the better part of the last century. That sensibility recognized that privacy interests came second to the public interest in newsworthy truthful information, and it trusted journalists to regulate themselves in deciding what qualified as news. Today, in an environment in which journalists and quasi-journalists seem ever less inclined to restrain themselves in indulging the public appetite for information, however scandalous or titillating, that bargain seems increasingly naïve. And courts are beginning to show new muscle in protecting persons from media invasions by imposing their own sense of the proper boundaries of news and other truthful public disclosures. The First Amendment bubble, enlarged by an expanding universe of claims to protection by traditional media, internet ventures, and “citizen journalists,” could burst.
Amy Gajda, Privacy Before The Right to Privacy: Truthful Libel and the Earliest Underpinnings of the Privacy Tort
Comment by: Dorothy Glancy
Workshop draft abstract:
Samuel Warren and Louis Brandeis are widely credited with spurring the creation of legal protection for personal privacy in the United States. Their 1890 Harvard Law Review article, The Right to Privacy, lambasted what the two authors considered sensational and invasive newspaper coverage and, it is often said, laid the foundation for modern privacy law, including the tort remedy for Publication of Private Facts. This Article, however, traces the underpinnings of that tort protection back long before Warren and Brandeis’ landmark article. Even before the two law partners famously slammed journalism and suggested that journalists be punished for publishing stories regarding private behavior, courts in the United States had both recognized the value of personal privacy and strongly condemned journalists for their invasive practices. This Article explores those early legal foundations and suggests why Warren and Brandeis may have elected not to enlist this precedent in support of their cause: some of the rulings most relevant to expanded legal protection against invasive news coverage are pointedly aligned with past abuses of legal power, including the infamous Star Chamber.
Amy Gajda, Privacy, Ethics, and the Meaning of News
Comment by: Amy Gajda
Published version available here: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1103248
Workshop draft abstract:
Courts, John Marshall famously declared, must “say what the law is.” Increasingly, however, courts 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 that the topic was of legitimate public interest and therefore beyond the reach 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 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 that courts return to a more deferential approach in assessing “newsworthiness.” Specifically, it suggests that courts should have no power to punish truthful disclosures of private facts if journalists could reasonably disagree about the story’s legitimate news value.