Debate brews over balancing test between privacy and press rights

Wednesday, December 29, 1999

Emergence of privacy rights rattles media
Press 'excesses' — of this century and last — prompt calls for privacy protection
Press advocates worry that privacy will trump First Amendment rights
Debate brews over balancing test between privacy and press rights


  • Summary of 'The Right to Privacy'
  • The 4 torts of invasion of privacy
  • Timeline

  • The U.S. Supreme Court's majority opinion in the 1989 case Florida Star v.
    so disturbed Justice Byron White that he drafted a stern dissent
    urging a more equitable recognition of personal privacy rights.

    “If the First Amendment prohibits wholly private persons (such as B.J.F.)
    from recovering for the publication of the fact that she was raped, I doubt that
    there remain any 'private facts' which persons may assume will not be published
    in the newspapers or broadcast on television,” White wrote.

    White conceded that a right to privacy should not stand absolute, but he
    questioned the right's poor showing before the court.

    “Resolving this conflict is a difficult matter, and I fault the Court not for
    attempting to strike an appropriate balance between the two, but rather, fault
    it for according too little weight to B.J.F.'s side of equation, and too much on
    the other.”

    And therein lies the rub: Finding the balance between the public's right to
    know and an individual's right to be left alone.

    Press advocates, of course, endorse a scale that tips in favor of the First
    Amendment. But they advise journalists to reconsider some of their tactics —
    specifically hidden cameras and deception — or risk more laws and lawsuits over

    Meanwhile, privacy expert Amitai Etzioni, author of Limits of Privacy,
    contends that the actual balancing test between press and privacy rights is a
    deceptively simple one. First, determine if there was an invasion of privacy. If
    not, the ruling should fall in favor of the press. If there was, then it must be
    determined if the public's right to know was of greater importance.

    But there's debate over the details of such a test … and over the

    What about truth, newsworthiness and an overriding public concern? Should
    judges and juries consider reporters' and photographers' intent as they
    deliberate? And if they should, where should they draw the line when assessing
    the primacy of press rights or personal privacy?

    While White wrote in Florida Star that he would have placed “the line
    higher on the hillside” — high enough to protect people like B.J.F. — others
    such as First Amendment attorney Bruce Sanford say such matters should not be
    left to the courts.

    Sanford refers to the 9th U.S. Circuit Court of Appeals ruling in the 1975
    case of Virgil v. Time Inc., in which the court cast a wide net in
    determining what might be deemed newsworthy.

    In that case, Mike Virgil, a daredevil known for his bodysurfing antics at a
    dangerous California beach called the Wedge, agreed to an interview. But before
    the story ran, he withdrew his consent.

    Sports Illustrated

    published the story anyway, and Virgil sued for
    invasion of privacy.

    The appeals court faulted the magazine for not honoring Virgil's wishes. But
    it sided with the magazine in its final ruling, because it deemed that the
    exploits of the bodysurfer might be of interest to the public.

    “If that's newsworthy, then that means all kinds of things are newsworthy,”
    Sanford said. “The newsworthiness standard can work quite
    well if you interpret it in that vast, broad way.”

    But he worries about the judiciary trying to define “news.”

    “It doesn't give the media and the First Amendment any degree of reliability
    or predictability,” Sanford said. “And they end up being timid or cautious.”

    Robert Ellis Smith, founder of Privacy Journal, says he supports
    newsworthiness as a defense. But he says he wonders if programs such as those
    that feature only true-life videos really count as “newsworthy.”

    “News programs that do nothing but that, don't care much about
    newsworthiness,” Smith said. “Those that do nothing but
    ride-alongs want to do it for entertainment value. It causes problem with court
    analysis. I think the courts have to make a distinction here.”

    Smith says he would prefer that news media draw the line, but he isn't
    holding his breath. Too often, he says, the media defend their actions by saying
    they were making a “judgment call.”

    “That's really a seat-of-the-pants, ad hoc decision,” Smith said. “I'm really
    disappointed that the press refuses to develop principles to guide them in the
    future on this.”

    But newsworthiness doesn't always trump privacy, as press advocates learned
    last May with the Supreme Court's decisions in Hanlon v. Berger and
    Wilson v. Layne.

    In the two cases — the former involving a Montana raid by fish and wildlife
    agents who were accompanied by CNN; the second, a Maryland raid by federal
    marshals and local police who allowed The Washington Post to observe —
    the court ruled that law enforcement agents violate constitutional rights when
    they invite the media along on raids of private property.

    In the majority opinion, Chief Justice William Rehnquist scarcely mentioned
    the First Amendment, saying the decision in both cases had to be based solely on
    the Fourth Amendment right against unreasonable search and seizures.

    In a case settled before it could reach the Supreme Court, the California
    Supreme Court determined in Shulman v. Group W Productions that a
    car-accident victim had a reasonable expectation of privacy once she was inside
    a medical helicopter.

    “Courts have said, 'Sorry, it really doesn't matter if you were chasing the
    story,' ” said Jane Kirtley, a journalism professor at the University of
    Minnesota School of Journalism and Mass Communication. “Basically, the only way
    out of it is if the person doesn't have a reasonable expectation of

    And as with newsworthiness, Kirtley says it would be impossible to come up
    with a truly objective standard concerning “expectation of privacy.”

    “This gets to the point of a 'reasonable' and not a purely subjective
    standard,” Kirtley said. “Can you differentiate between Bill
    Clinton's expectation of privacy and Joe Blow's? And there are different
    situations. That's why privacy experts always talk about Princess Diana. That's
    so fact-and-situation specific.”

    Journalists have learned, too, that truth as a defense – the stalwart
    argument against libel and, to some degree, false-light cases — doesn't fly with
    most invasion-of-privacy claims.

    “It may be perfectly true that nobody in the case disputes the truth,”
    Kirtley said. “But that makes it all the more damaging, because it is true. It's
    personal information they didn't want to give out.”

    Truth, for example, was never disputed in Food Lion v. Capital Cities/ABC
    In 1997, a federal jury awarded the grocery chain $5.5 million in
    damages for fraud, trespass and breach of loyalty associated with a “PrimeTime
    Live” hidden-camera expose. Last October, the 4th U.S. Circuit Court of Appeals
    whittled the damages to only $2.

    Even the actual-malice standard developed in New York Times v.
    in 1964 doesn't always stand, particularly when private figures are

    Although the Supreme Court weighed its first privacy case, Time Inc. v.
    , in 1967 using the actual-malice standard, it dismantled the standard —
    at least in regard to private figures — seven years later in Gertz v.
    . The court determined that a lawyer who had sued a John Birch Society
    magazine for labeling him a “Communist” only had to prove that the magazine was

    Perhaps the only solid, certain defense against invasion-of-privacy claims
    remains consent. Even Samuel Warren and Louis Brandeis, in their landmark “The
    Right to Privacy” article, bluntly stated that: “The right to privacy ceases
    upon the publication of the facts by the individual or with his consent.”

    While privacy advocates have made small strides in intrusion cases, they have
    made great leaps in restricting access to government-held documents that contain
    personally identifiable facts.

    Despite the passage of the federal Freedom of Information Act, press efforts
    to open records — or just keep them open — haven't always been successful.
    Particularly troublesome to news organizations was the Supreme Court's 1978
    ruling in Houchins v. KQED Inc. Writing for the majority, Chief Justice
    Warren Burger noted that the court “has never intimated a First Amendment
    guarantee of a right of access to all sources of information within government

    Eleven years later, the court held in Department of Justice v. Reporters
    Committee for Freedom of the Press
    that federal agencies may withhold “rap
    sheets” — compilations of arrests, indictments, convictions or acquittals — on
    private citizens, even though the information is public at its original

    Since then, the court has cited privacy concerns in allowing federal
    officials to close records concerning refugees returned to Haiti in
    Department of State v. Ray (1991) and in denying union organizers access
    to addresses of government employees in Department of Defense v. Federal
    Labor Relations Authority

    More recently, the court heard arguments in Reno v. Condon, a case
    involving the constitutionality of the federal 1994 Driver's Privacy Protection
    Act, which bars states and their employees from releasing most personal
    information about drivers. But the court is considering that case on 10th
    Amendment states' rights grounds and not on First Amendment or privacy

    Legal problems aside, press and privacy advocates agree that news
    organizations must reconsider how they do their job or risk further
    restrictions. Besides recent court actions, the press has found new obstacles
    erected by congressional and state legislators.

    Members of Congress and several state legislatures have already considered
    so-called “paparazzi” bills designed to punish newsgathering efforts which
    intrude upon an individual's privacy. Last month, Sen. Herb Kohl, D-Wis., called
    for the formation of the Privacy Protection Study Commission to study the
    Freedom of Information Act as it pertains to privacy rights.

    “The press has to get its house in order, because it has made some serious
    misjudgments and missteps when it comes to this area,” said Don Pember, a
    communications professor at the University of Washington and author of
    Privacy and the Press.

    First Amendment attorney Victor Kovner says too many news organizations use
    hidden cameras when such a practice should only be a last resort. Kovner cites
    ABC's reporting in the Food Lion case as a perfect example of a story
    that could have been told with regular news footage and without covert

    Kirtley agrees that the news media must think seriously before relying on
    hidden cameras or the use of deception to get a story. She questioned why one
    network news operation bothered with hidden cameras to reveal movie theaters
    selling tickets to R-rated movies to children when they probably could have
    captured it in the usual way.

    “It's not about censorship,” she said. “It's about doing the story a
    different way.”

    Many advocates for both press and privacy agree that if news organizations
    improve their newsgathering and reporting efforts they may head off efforts by
    the courts and Congress to carve out a space for