Press 'excesses' — of this century and last — prompt calls for privacy protection

By Phillip Taylor
Special to freedomforum.org

"The press is overstepping in every direction the obvious bounds of propriety and of decency."

This damning observation of the news media appears in an article taking journalists to task for breaching the sanctity of the home — specifically in connection with their coverage of private social events.

The authors further contend that reporters "have invaded the sacred precincts of private and domestic life; and numerous mechanical devices threaten to make good the prediction that 'what is whispered in the closet shall be proclaimed from the house-tops.'"

But these words weren't written this year, this decade — or even this century.

They appeared in "The Right to Privacy," an 1890 Harvard Law Review article written by Samuel Warren and his law partner, Louis Brandeis, the future Supreme Court justice. The treatise, which gave credence to invasion of privacy as a legal tort, is considered by many to be the most influential law review article ever written.

Brandeis and Warren, of course, weren't writing about computers, paparazzi or tabloid TV; they were writing about the advent of newspaper photography, the development of the one-on-one interview and the gossip columnists of their day.

Yet the similarities between the privacy concerns of the late 19th Century and those at the eve of the 21st are remarkable. Such commonalities suggest that the right of privacy remains an elusive ideal still at odds with the rights of a free press.

During the first 60 years of the 20th Century, the legal concept of privacy languished in courtrooms and legislatures until the rising popularity of television and recording devices revived it. Some now suggest that privacy has emerged as the most important legal theory of the Century and will continue to dominate court and academic debate well into the 21st Century.

"It really is one of the strongest emotionally laden trends in the latter part of the 20th Century," said Bruce Sanford, a leading First Amendment attorney. "And it's interesting to note that the power behind it has only increased as time goes on."

For most of this Century, courts have sided with the press in cases that pit privacy rights against the First Amendment claims of journalists.

The first federal privacy claim appeared in a Massachusetts courtroom just prior to the turn of the last Century, a scant three years after the publication of "The Right to Privacy." In Corliss v. Walker, the wife of deceased inventor George Corliss filed a claim against a publisher, arguing that a biography of her husband would be an invasion of privacy.

But Judge LeBaron Colt said Corliss was a public figure, not entitled to privacy in regard to his life as an inventor.

"It would be a remarkable exception to the liberty of the press if the lives of great inventors could not be given to the public without their own consent while living, or the approval of their family when dead," Colt wrote in 1893.

In 1903, New York state passed the nation's first privacy law, a statute that prohibited the unauthorized use of an individual's name or picture for advertising or trade purposes. But the law didn't improve the success rate of privacy claims against the press.

In the case of Moser v. Press Pub. Co. in 1908, for instance, John Moser sued the New York World after it ran an unflattering article about him. But instead of suing the newspaper for libel, Moser filed an invasion-of-privacy claim, saying the World didn't have his consent to use his name or picture.

A New York court ruled that articles and photographs in a newspaper did not qualify under the new statute as a "trade purpose" and thereby denied Moser's claim that the appearance of his name and picture violated his privacy.

In another celebrated case, a former boy genius named William James Sidis sued The New Yorker magazine after it published a 1937 article about him under the headline: "Where Are They Now? April Fool!"

The reclusive Sidis, who at age 39 worked as a clerk, argued that he was no longer a public figure and that The New Yorker had invaded his privacy.

A New York appeals court disagreed in 1940 and wrote in Sidis v. F-R Publishing Corp.: "Regrettably or not, the misfortunes and frailties of neighbors and 'public figures' are subjects of considerable interest and discussion to the rest of the population."

Seventy years after Warren and Brandeis' article first spawned the concept of the privacy tort, another law review article revived interest in it.

Dean William Prosser wrote in a 1960 California Law Review article titled "Privacy" that the invasion-of-privacy tort was really an assemblage of four distinct but related torts: intrusion, public disclosure of private facts, false light and appropriation of a person's name or image for commercial use.

Today, some or all of the torts outlined by Prosser have been recognized by all 50 states, the District of Columbia and the federal courts. Privacy cases against the press that once were settled or dismissed in the lower courts now began to reach the appellate courts.

In 1967, the first privacy case involving the news media reached the U.S. Supreme Court.

The case of Time Inc. v. Hill stemmed from a photo layout and accompanying text in the Feb. 28, 1955, issue of Life magazine that highlighted the opening of a play based on Joseph Hayes' novel The Desperate Hours. Hayes' book was based loosely on the story of a Connecticut family taken hostage in their home, so Life photographers set the photo session at the actual house.

James Hill, patriarch of the family held hostage, sued Life for invasion of privacy, arguing that the inaccuracies in the accompanying text had made the layout a piece of fiction. A jury awarded the family $75,000 in damages.

On appeal, a New York appeals court also ruled in Hill's favor, saying that "Life created a wholly fictitious display for commercial advertising and trade purposes, using plaintiff's name and family as the basis for a true-life thriller."

Robert Ellis Smith, who founded the Privacy Journal, cites the reporting that sparked Time Inc. v. Hill as "the beginning of gossip journalism. [ ] wrote the article knowing that the information was wrong."

But the U.S. Supreme Court disagreed. The court, citing the actual-malice standard it created in the 1964 case of New York Times v. Sullivan, ruled that a plaintiff who files a "false light" claim arising from an issue of public interest must prove that the defendant published the article with knowledge of its falsity or with reckless disregard of the truth.

Seven years later, the high court used the actual-malice standard again, this time to rule against The Plain Dealer of Cleveland, Ohio, for a feature article about the family of a West Virginia man killed when the Silver Bridge collapsed.

Margaret Mae Cantrell, whose husband died in the Ohio River bridge accident along with 43 other people, sued the newspaper for portraying her in a false light. In the article, the reporter implied that he had interviewed Cantrell even though he had not.

The court agreed with Cantrell that the newspaper had knowingly published falsehoods about her.

But the actual-malice standard in privacy cases didn't survive long, at least not when private figures were concerned.

In its 1974 decision in Gertz v. Welch, the Supreme Court ruled in favor of Chicago lawyer Elmer Gertz, who had sued the John Birch Society magazine for calling him a communist. The court said Gertz did not have to prove that the magazine had acted recklessly or knowingly in publishing false information about him.

The actual-malice standard the court developed in Times v. Sullivan now applied only to public figures. The Gertz decision freed state officials to develop their own standards for defamation of private figures, regardless of any interest the public might have in their stories. While the Supreme Court didn't explicitly create a negligence standard in Gertz, its decision spurred many states into adopting a less-demanding standard for false-light cases. Plaintiffs in false-light cases usually don't have to prove malicious intent or attack the accuracy of the contested publication or broadcast.

Despite the decisions in Gertz and Cantrell, the press fared better in privacy cases before the court for the rest of the 1970s and into the '80s.

In Cox Broadcasting v. Cohn (1975), Oklahoma Publishing v. Oklahoma County District Court (1977) and Smith v. Daily Mail Publishing (1979), the court upheld the concept that a newspaper that obtains its information legally is generally protected against state privacy statutes forbidding the publication of such information. The court used this reasoning in ruling in the press' favor in the 1989 decision in Florida Star v. B.J.F.

But press advocates today worry that courts now will side more often with privacy interests than with the press. They blame this shift — at least in part — on computers, which now hold data once only available on cumbersome paper records.

"With these databases, the records can now be used in an efficient manner," said Lucy Dalglish, incoming director of the Reporters Committee for Freedom of the Press. "And there are people out there who are very upset about it. There's an idea that any information about me, if other people had it, would somehow be harmful."

Such concerns have triggered legislation that closes many government documents, such as motor-vehicle records, that have been open to public scrutiny for years.

Dalglish says she understands privacy concerns, but "I'm far more worried when they come up with legislative changes where they close down access to records that have always been open."

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