When privacy and press rights collide

Monday, March 29, 1999

The facts around it have grown fuzzy and faded with the passage of 30 years but the singular image is as sharp today as it was the night it was imprinted in my memory.

We are gathered at a small pond in a large field. It is very dark but emergency lamps on poles at the water’s edge harshly illuminate two men and a small boat in the center of the pond. One deputy slumps heavily on the rear seat. Another deputy stands in the middle of the boat, looking toward us on the bank.

His face is haggard, his eyes tired from having seen too much. Water and mud drip from the lifeless form of a toddler draped in his arms.

The lamps make a strange buzzing sound as the boat is pulled slowly to the pond’s bank, where a young mother and father shudder in grief and disbelief. The frantic search for their child had begun a few hours before and gradually, inevitably made its way to this little pond only a hundred yards from their back yard.

Among the relatives, friends, neighbors and others who had come from miles around to join the search were three or four reporters, including myself. None of us had been invited. Like the others huddling close to the parents on the bank, we had driven down the dirt road, parked our cars in the ditch, climbed across the fence and trudged through the weeds to this small pond to wait and watch, even to lend a hand.

We took notes. We took pictures. Then, when it was over, we slouched off into the night to write our sad stories.

How could we have intruded upon those parents’ privacy and pain that night? It did not occur to us to wait to be invited. It did not occur to the law officers to stop us. It did not occur to the parents to complain.

That was the way it was. Like other journalists, I followed ambulance attendants into homes where homicides were suspected. I followed firefighters into private firms and residences. I tagged along with police for arrests and the serving of warrants. I conducted interviews outside hospital rooms, knocked on the doors of grieving family members, and covered the funerals.

When you get right down to it, that’s what journalists do on a regular basis: invade people’s privacy.

But Supreme Court cases about ride-alongs, the New York court’s banning of “perp walks” and California’s new paparazzi law are just a few recent examples of the growing number and intensity of collisions between the individual right of privacy and the public rights of the press.

There was a time when the privacy concerns of celebrities and criminal suspects were subordinated to the larger community’s need to know or desire to know. Today, we have much different sensibilities about the press and privacy. And it’s not just about suspects and celebrities. Now, we engage in protracted dialogue about the privacy of convicted sex offenders and other felons, as well as a whole range of other people and situations we wish to define as not news.

Frequently, such agonies over such matters wind up in the Supreme Court, where nine justices very protective of their own privacy deliberate whether the framers of the Constitution simply got it wrong when they failed to place privacy on a par with the press’s right to gather the news and the public’s right to know it.

These developments should have journalists asking some tough questions of themselves:

  • Have we made a journalistic case for riding along with police officers, or does the practice simply provide a public-relations tool for the police and compromise the independence of the press?
  • Where should we draw the line on coverage of arrests and the serving of warrants: in the living room, at the front door, on the sidewalk out front, or back at the courthouse?
  • Which is more important, the individual’s privacy or the public’s right to know?

  • The larger society also needs to be asking itself some tough questions:

  • What are the privacy expectations of someone charged with a crime?
  • Can an open society function fully without the sacrifice of some individual privacy rights?

    And individuals proclaiming that privacy should trump all else should be asking themselves some tough questions, too:

  • Is the presence of the press at such moments an invasion of my privacy, a protection of my rights, or both?
  • Are my privacy concerns greater than my safety concerns or my concerns about how my government works?

    The point is not to elicit sympathy for life being made harder for journalists. We might, however, want to shed a tear for the passing of a time when personal grief was more readily shared by the community, when privacy had more to do with the boundaries of concern and passion and less to do with near-total withdrawal from the community.

    In the end, we must concede that there are some aspects of human interaction that the law and the courts simply can’t reach, matters that ultimately we must leave to compassion, common sense, and the community. That concession goes for the press as well as for the rest of us.

    As for those forlorn parents on the bank of that pond all those years ago, I hope that they realized that, as naive as it may sound today, the presence of those people, including the reporters, at that most human of moments was not intended as an invasion of their privacy but as a sharing of their pain.

    Paul McMasters may be contacted at pmcmasters@freedomforum.org.