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Amy Gajda, The First Amendment Bubble: Legal Limits on News and Information in an Age of Over-Exposure

Amy Gajda, The First Amendment Bubble:  Legal Limits on News and Information in an Age of Over-Exposure

Comment by: Samantha Barbas

PLSC 2013

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.