Emergence of privacy rights rattles media

By Phillip Taylor
Special to freedomforum.org

The right to privacy — a nebulous concept during most of the nation's history — has congealed into a formidable, recognizable right that often butts heads with the First Amendment.

And it's the emergence of privacy — this right to be left alone — that has many journalists and news organizations pondering how press rights may fare in the years to come.

But a decade ago, many of these same press advocates weren't worried when the privacy case Florida Star v. B.J.F. reached the U.S. Supreme Court.

A sexual assault victim claimed that the weekly Jacksonville, Fla., newspaper had negligently published her name, which it had obtained by poring over police reports. Although a state law admittedly forbade publication of the name of any victim of a sexual offense, the newspaper hadn't broken any laws to obtain the information.

Moreover, the high court, without exception, had upheld press rights in a solid triumvirate of privacy-related cases in the late 1970s — Cox Broadcasting Corp. v. Cohn in 1975; Oklahoma Publishing v. Oklahoma County District Court in 1977 and Smith v. Daily Mail Publishing in 1979.

When the court came back in June 1989 with a 6-3 decision that overturned an earlier $75,000 jury award against the Star, an expectant but jubilant press was full of praise.

But press experts discovered cracks in the ruling.

Although it ruled in favor of the newspaper, the court acknowledged that under a different set of circumstances it might have upheld the jury award. In effect, the court ruled that freedom of the press does not always trump the right to privacy.

In the 10 years since the court decided Florida Star, news organizations haven't fared well when privacy concerns are invoked. Anxiety about the "right to be left alone" has sparked courts and lawmakers to impose more and more restrictions on reporting efforts.

The courts have faulted television broadcasters for using hidden cameras to expose poor food-handling practices and psychic hot lines, magazine editors for using images of famous celebrities in fashion pieces and reporters for riding along with law enforcement officers on patrol.

Privacy concerns have also triggered legislation that hampers the ability of the media and the public to gain access to government-held documents. Twice this decade, Congress has drafted legislation restricting the release of driver's license records, information long held to be on the public record. Last October, the Department of Health and Human Services proposed health-privacy rules that would close many records such as general condition and admittance reports of patients.

Privacy is "the cutting-edge issue of the press today," said Jane Kirtley, a former director of the Reporters Committee on Freedom of the Press and now a professor at the University of Minnesota School of Journalism and Mass Communication. "It's constantly evolving, and it can be dangerous to the press."

But Robert Ellis Smith, founder of Privacy Journal, says the press remains pretty much isolated in regard to right-to-privacy issues. Smith said most freedom-of-information cases, including the subject of a recent Supreme Court ruling in Los Angeles Police Department v. United Reporting Publishing Inc., concern commercial speech, while many intrusion cases deal directly with police departments or U.S. marshals.

"The courts in the last 15 years have been quite lenient on the press. I think the pendulum is swinging far in favor of the press," Smith told freedomforum.org "I think the press has been very intrusive in the last 15 years in reporting personal details of peoples' lives, particularly those [people] thrown into the spotlight involuntarily."

Supreme Court case law bears this out, says Smith, noting that nearly every press and privacy case before the Supreme Court in the 1970s and '80s turned in favor of the press.

In Cox Broadcasting Corp. v. Cohn in 1975, the court determined that damages imposed against a television station for broadcasting the name of a rape-murder victim were unconstitutional. The station, the court noted, had obtained the victim's name from courthouse records.

The court used similar reasoning two years later in Oklahoma Publishing v. Oklahoma County District Court, saying the First Amendment prohibited a state court's pretrial order enjoining reporters from publishing the name or photograph of an 11-year-old boy whose juvenile proceeding was open to the media.

In Smith v. Daily Mail Publishing, the justices overturned a state law forbidding newspapers from publishing the name of any youth charged as a juvenile offender.

In that 1979 ruling, the court wrote: "If a newspaper lawfully obtains truthful information about a matter of public significance then state officials may not constitutionally punish publication of the information, absent a need to further a state interest of the highest order."

But Smith says the mainstream press today doesn't operate the way it did in the 1970s. He contends such news organizations have become more like the tabloid press.

"Not only are they intruding into personal details more, they are publishing more salient details that are hardly newsworthy," he said, adding that it's time for the courts to better protect people from such reporting.

Although the courts have recognized the right of privacy in many cases, it often takes time before the system sees a wave of related cases, says Don Pember, longtime communications professor at the University of Washington and author of the 1972 book Privacy and the Press.

"In the law arena, things can occur for a long time without necessarily becoming a legal issue because they lack visibility," Pember told freedomforum.org "But once they get visibility, you find a lot more lawsuits."

He compares the gradual rise in privacy-rights cases against the press to a boom in celebrity-defamation cases in the 1980s. Before actress Carol Burnett successfully sued the National Inquirer for defamation over an article describing her as "drunk, rude, uncaring and abusive," celebrities never bothered fighting the "bottom-feeders," he said.

Some say the floodgates have opened.

Press advocates note that when Food Lion officials took ABC to court to challenge a network report on food-handling practices at the grocery chain, they sued on privacy-based grounds, not for defamation.

Moreover, the U.S. Supreme Court completely disregarded any First Amendment claims when it ruled last May that police violate the Fourth Amendment when they invite the media along on raids inside private homes.

First Amendment attorney Lucy Dalglish, incoming director of the Reporters Committee, says such cases have already chilled newsgathering efforts nationwide. During a recent American Bar Association meeting, she said, she met media attorneys who have counseled their clients to abandon such reporting methods.

"It's playing out, in that journalists are doing far fewer police ride-alongs and far fewer stories" about police activity, Dalglish told freedomforum.org.

First Amendment attorney Bruce Sanford said that while the actual watershed case in the privacy-versus-press debate hasn't come yet, the Florida Star case is a clear turning point.

Before Star, the three leading privacy-press cases of the late 1970s sparked only one dissent among them — one in Cox from now-Chief Justice William Rehnquist on jurisdictional grounds, not constitutional ones. The Florida Star decision included three dissents.

Although Florida Star fell on the side of the press, the decision included a blistering dissent from Justice Byron White.

White said the court established in Cox a test to balance personal privacy against the public's right to know. He faulted the court for not striking a more appropriate balance in its Florida Star ruling.

"I would find a place to draw the line higher on the hillside: a spot high enough to protect B.J.F.'s desire for privacy and peace-of-mind in the wake of a horrible personal tragedy," White wrote.

And even Justice Thurgood Marshall, who wrote the majority opinion in Star, acknowledged privacy concerns about an unrestrained press, noting that the court had not "exhaustively considered this conflict."

More specifically, Marshall wrote: "We do not hold that truthful publication is automatically constitutionally protected, or that there is no zone of personal privacy within which the State may protect the individual from intrusion by the press, or even that a State may never publish publication of the name of a victim of a sexual offense."

"I think a lot of times when people look at the box score, they say, 'We won it, so what's the big deal?' " Sanford told freedomforum.org "But if you look at Marshall's language, see how carefully and narrowly drawn his opinion is — in order, presumably — to get the fifth vote. I think that tells you that this [outcome might] well turn in a similar case with slightly different facts."

— Phillip Taylor is a free-lance correspondent for freedomforum.org.