Issue of privacy vs. legitimate public interest raises unanswered constitutional questions

Thursday, March 19, 1998

Imagine that an enterprising newspaper photographer discovers that a Hollywood heartthrob is vacationing on a private island off the California coast. Imagine further that this photographer, using the latest in telephoto lens technology, snaps a number of pictures of this well-known playboy engaged in sexual acts with another man.

What happens next, of course, does not require great imagination. A tabloid rushes to press with the photos. The movie star sues, claiming invasion of privacy. The tabloid indignantly asserts that the First Amendment does not permit it to be sued for publishing true information. The jury awards the celebrity $2.4 million in damages, and the trial judge refuses to set aside the verdict. The appellate court, however, reverses, finding merit in the tabloid's First Amendment argument. And the U.S. Supreme Court ….

As hypothetical as this case might be, it has become very real for the participants in the Eighth Annual National First Amendment Moot Court Competition being conducted on March 20 and 21 at Vanderbilt University in Nashville. In the competition, which is co-sponsored by Vanderbilt University and the First Amendment Center, students from 36 law schools around the country will argue the merits of the case and attempt to make sense out of an increasingly confusing area of First Amendment law.

One of the most difficult issues in the case is whether a media entity can be liable for publishing true, private facts about a celebrity or other public person. While the Indiana Supreme Court recently held in Doe v. Methodist Hospital that liability for public disclosure of private facts cannot exist in today's tell-all society, at least 38 other states and the District of Columbia protect individual privacy rights when the media step over the line.

Identifying the line, however, has proved to be a First Amendment tar baby. In most states, the test generally is whether the disclosure of the “private” fact is highly offensive to a reasonable person and whether it lacks legitimate public interest. In determining whether a disclosure is highly offensive, some states borrow from obscenity law and allow each community to apply its own standards and values. For media entities that publish or broadcast nationwide, this localized test is particularly unsatisfying.

Even more troubling is determining whether the disclosure lacks legitimate public interest. This inquiry typically boils down to whether the judge or jury finds the disclosure to be sufficiently “newsworthy.” When making this determination, the judge or jury examines (1) the social value of the facts published, (2) the depth of the publication's intrusion into private affairs and (3) the extent to which the “victim,” through celebrity or other public status, has a diminished expectation of privacy.

Depending upon how it is applied, the newsworthiness test is either perilous or impotent. If applied narrowly, judges and juries can, in the comfort of hindsight, freely second-guess editors' news judgments and impose their view of journalism ethics. Because the test is couched in terms of “legitimacy” and “social value,” the public's actual interest in a disclosure may be irrelevant. As much as we would like to think otherwise, little doubt can exist that persons would apply a much higher “legitimacy” standard as jurors than they would as consumers of The Drudge Report, Geraldo and the Rush Limbaugh show.

Allowing the media to define “newsworthy,” however, is equally problematic. While courts in other contexts generally have (sometimes grudgingly) concluded that the media, not the judicial system, should decide what information should be published and broadcast, this approach to determining newsworthiness obviously cannot work in privacy cases. If the newspaper or broadcast station that disclosed the private fact were allowed to determine whether the disclosure were newsworthy, no privacy claim ever could be brought.

The current state of privacy law also lacks the constitutional dimension that has marked the development of defamation jurisprudence. At their core, the U.S. Supreme Court's decisions in libel cases recognize that, for the First Amendment to have any meaning, the Constitution must protect bad journalism. A public person, therefore, cannot recover for defamation if the reporter or editor simply makes a mistake; a recovery can be had only if the damaging information is published when the media entity either knows it is false or recklessly disregards whether it might be false.

To date, the Court has not had an opportunity to fully address the constitutional issues in a disclosure case. In the cases decided by the Court so far, the newsworthiness of the “private” facts has been clear. In these cases, however, the Court has emphasized that its holdings should not be interpreted as blanket protection for the media. How the Court eventually will decide such a case remains unclear.

Perhaps one approach would be for the Court to adopt a newsworthiness test that follows the constitutional framework established in libel cases. Under such a test, judges and juries in disclosure cases involving private persons would determine newsworthiness by asking whether the public had a legitimate interest in the private fact. In cases involving public officials and other public persons, however, the inquiry would be whether the public had an actual interest in the disclosure, regardless of whether that interest was legitimate. This approach might slightly reduce the amount of protection available to the media in private person cases, but it would significantly increase the protection in public person cases. As in defamation actions, this increased protection would diminish the “chilling effect” and self-censorship that otherwise surround reporting about public persons.

Other approaches to these issues no doubt exist and likely will be offered by the moot court competitors. And if past years are any indication, these approaches will deserve serious consideration.

Douglas Lee is a partner in the Dixon, Ill., law firm of Ehrmann Gehlbach Beckman Badger & Lee and a legal correspondent for the First Amendment Center.