Press advocates worry that privacy will trump First Amendment rights

By Phillip Taylor
Special to freedomforum.org

For nearly 100 years, news organizations successfully staved off most claims of invasion of privacy in court. But two seemingly unrelated circumstances may have altered the balance between First Amendment press freedoms and a burgeoning belief in the "right to be let alone."

One was the tragic death of Princess Diana; the other, the ongoing computerization of government records.

Diana's death in 1997 following a high-speed paparazzi chase fed public anxiety about the intrusion of news media into private lives. Easy electronic access to public records raised heightened fears about who can view such documents.

These events among others, press advocates say, have forced courts and lawmakers to reconsider many privacy issues. Recent developments related to two privacy torts in particular – public disclosure of private facts and intrusion – have many worried.

Don Pember, a University of Washington communications professor, says intrusion has developed more significantly than any of the other three privacy torts in the 25 years since he wrote Privacy and the Press.

"Intrusion has skyrocketed," Pember told freedomforum.org, noting that his book scarcely mentioned the tort. "A fundamental change has occurred. Information-gathering, reporting strategy and processes are becoming much more of a concern to the public. Courts are not at all sensitive to the First Amendment in this area."

And neither is the public, particularly in the wake of Diana's death.

The "chase, the stakeouts, the ambushes, the interviews done with misplaced prosecutorial zeal, the crush of photographers and videographers 'doing their job' are all ultimately self-defeating," Bruce Sanford writes in his book Don't Shoot the Messenger. "They have given journalists the image of vultures."

So, even though hidden cameras and similar techniques may reveal poor food-handling practices, fraudulent business practices or medical quackery, the public isn't sympathetic when the media get slapped with an invasion-of-privacy lawsuit.

Both Pember and Sanford cite the case of Food Lion v. Capital Cities/ABC, Inc., which stunned some because it appeared to open a new line of legal attack against hidden-camera journalism. Instead of tackling the accuracy of an undercover report that alleged gross mishandling of food at the stores, the grocery store chain sued for fraud, breach of loyalty and trespass.

Last October, the 4th U.S. Circuit Court of Appeals threw out a $315,000 judgment for punitive damages against ABC over the 1992 "PrimeTime Live" story about the Food Lion chain — an award that a judge had earlier reduced from $5.5 million. The ruling left intact only $2 of the jury's original award.

"That's got to be viewed as a shot across the bow," Pember said of the jury's ruling in the Food Lion case. "The public clearly is getting upset about this kind of press."

And while many press experts praise the 4th Circuit's ruling in Food Lion, others, like Jane Kirtley, note that the appeals court let the loyalty and trespass claims stand.

"Of course, the monetary damages were small, but look at how much it cost for ABC to litigate this," said Kirtley, a journalism professor at the University of Minnesota. "Most plaintiffs are not looking for money damages. They want the news organization to stop doing these kinds of stories.

"Food Lion is an ominous decision because the court refused to adopt a rule that would give newsgathering greater protection," she told freedomforum.org "Since the case flowed on privacy theory or some version of the theme, that's what we've got to worry about."

But Robert Ellis Smith, founder of Privacy Journal, describes the Food Lion case "as a simple case of fraud and misrepresentation" having nothing to do with privacy.

Sanford disagrees, saying Food Lion demonstrates how the privacy interests of a corporation trumped the public's right to know that a leading national grocery chain might have been selling spoiled meat.

"Completely lost in this whole issue is: Is the public interest satisfied?" he said.

While reporting done in the name of the public interest has been a key issue of debate, it has not been a strong defense in the courtroom.

Last year, the California Supreme Court ruled in Shulman v. Group W Productions that a production company could be sued for videotaping a car-accident victim while she was being transported in a medical helicopter without her consent.

That case has since been settled.

"This is one of those situations where the press just wasn't going to convince the court that there was an overriding public interest [for] the cameraman being there in the helicopter with this woman," Kirtley said. "What happened in the ditch was public domain, but in terms of being inside the helicopter … we could talk until we're blue in the face about that one."

Amitai Etzioni, author of The Limits of Privacy and a professor at George Washington University, says he agrees that it was fair to videotape the woman at the accident scene but not necessarily after paramedics placed her in the helicopter.

"In the case of the woman in the car accident, I will go as far as possible to make room for the First Amendment," Etzioni told freedomforum.org "But I don't see what is to be gained here. What do we know when we follow the woman into the helicopter?

"There's no gain as far as I'm concerned, except for getting more people to watch the news," he said.

He says he feels the same about media ride-alongs, a once-common practice in which reporters ride with law enforcement officials. The Supreme Court in a unanimous decision last May in two cases, Wilson v. Layne and Hanlon v. Berger, determined that police violate the Constitution when they invite the media along to witness raids on private homes.

"Public damage is done because of the police, which change their conduct not for the public but because the cameras are on," Etzioni said.

Victor Kovner, a First Amendment attorney who includes CBS among his clients, says that while many have characterized the decision as adverse to press interests, it involved Fourth Amendment rights against unlawful search and seizure, not First Amendment ones.

"That in itself is a signal," Kovner told freedomforum.org "First Amendment rights will not always trump Fourth Amendment rights."

But Kovner says he finds it troubling that the high court refused to intervene recently in the privacy-related case of two newspapers which are being sued because they reported details of an illegally recorded telephone conversation after the tape was played at a news conference.

Kovner worries that even though the newspapers obtained the information legally, the justices declined to hear the newspapers' appeal in Central Newspapers Inc. v. Johnson. He says the court should have spared the newspaper owners from having to defend themselves at trial.

While the courts have become more receptive to privacy arguments, Congress and state legislatures have engaged in more efforts to expand the intrusion tort.

Within months after Princess Diana's death, Congress considered a variety of privacy bills, including one sponsored by the late Rep. Sonny Bono, R-Calif., that would have imposed stiff penalties for "persistently physically following or chasing a victim, in circumstances where the victim has a reasonable expectation of privacy and has taken reasonable steps to insure that privacy."

None of the bills passed this term.

While the intrusion tort has sparked significant interest over the past decade, the concept of false light — labeled "libel lite" by some because it seeks a negligence standard instead of the tougher malice standard from New York Times v. Sullivan — has fallen by the wayside.

Nor do news organizations generally worry about the tort of appropriation, even though a judge awarded actor Dustin Hoffman $3 million after Los Angeles Magazine used his image from the 1982 film "Tootsie" in a fashion article.

Kovner said the Hoffman v. Capital Cities/ABC Inc. decision is troubling for the press but doesn't change the privacy landscape much. He and others expect a higher court will eventually overturn the decision.

Press experts, though, remain anxious about how privacy concerns will affect the public's access to government records in the future.

Twice this decade, Congress approved legislation restricting the release of driver's license records. Last October, the Department of Health and Human Services proposed health-privacy rules that would close many records.

"I think in the use-of-data area, there will be increasing restrictions," Kovner said. "The new technology enables people to assemble an incredible amount of data that becomes available now at the click of a mouse. To some extent the press will be affected."

Kirtley agrees: "Moveable type scared people too. The tendency is always to try to rein it in."

She said the Supreme Court's decision in Los Angeles Police Department v. United Reporting Publishing Inc. earlier this month didn't bode well for the public's right to know. The court upheld a California law that forbids release of police-blotter information to companies that use the data for commercial purposes.

Freedom-of-information advocates say the court's decision might prompt more governments to shut down access to other records traditionally open to the public.

The decision, some say, may foretell how the court will decide Reno v. Condon, a challenge to the 1994 Driver's Privacy Protection Act, a federal law aimed at closing off access to driver's license information.

While many expect the court to invalidate the law, they predict the justices will determine that the law intrudes upon the power of the states instead of ruling on the constitutionality of closing records. Presumably, such a decision would allow the states to decide for themselves whether such records should be open or closed.

"These are not favorable signs in terms of trying to strike a balance between open access to government and so-called privacy concerns," Kirtley said.

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