Debate brews over balancing test between privacy and press rights

By Phillip Taylor
Special to freedomforum.org

The U.S. Supreme Court's majority opinion in the 1989 case Florida Star v. B.J.F. so disturbed Justice Byron White that he drafted a stern dissent urging a more equitable recognition of personal privacy rights.

"If the First Amendment prohibits wholly private persons (such as B.J.F.) from recovering for the publication of the fact that she was raped, I doubt that there remain any 'private facts' which persons may assume will not be published in the newspapers or broadcast on television," White wrote.

White conceded that a right to privacy should not stand absolute, but he questioned the right's poor showing before the court.

"Resolving this conflict is a difficult matter, and I fault the Court not for attempting to strike an appropriate balance between the two, but rather, fault it for according too little weight to B.J.F.'s side of equation, and too much on the other."

And therein lies the rub: Finding the balance between the public's right to know and an individual's right to be left alone.

Press advocates, of course, endorse a scale that tips in favor of the First Amendment. But they advise journalists to reconsider some of their tactics — specifically hidden cameras and deception — or risk more laws and lawsuits over privacy.

Meanwhile, privacy expert Amitai Etzioni, author of Limits of Privacy, contends that the actual balancing test between press and privacy rights is a deceptively simple one. First, determine if there was an invasion of privacy. If not, the ruling should fall in favor of the press. If there was, then it must be determined if the public's right to know was of greater importance.

But there's debate over the details of such a test … and over the conclusions.

What about truth, newsworthiness and an overriding public concern? Should judges and juries consider reporters' and photographers' intent as they deliberate? And if they should, where should they draw the line when assessing the primacy of press rights or personal privacy?

While White wrote in Florida Star that he would have placed "the line higher on the hillside" — high enough to protect people like B.J.F. — others such as First Amendment attorney Bruce Sanford say such matters should not be left to the courts.

Sanford refers to the 9th U.S. Circuit Court of Appeals ruling in the 1975 case of Virgil v. Time Inc., in which the court cast a wide net in determining what might be deemed newsworthy.

In that case, Mike Virgil, a daredevil known for his bodysurfing antics at a dangerous California beach called the Wedge, agreed to an interview. But before the story ran, he withdrew his consent.

Sports Illustrated published the story anyway, and Virgil sued for invasion of privacy.

The appeals court faulted the magazine for not honoring Virgil's wishes. But it sided with the magazine in its final ruling, because it deemed that the exploits of the bodysurfer might be of interest to the public.

"If that's newsworthy, then that means all kinds of things are newsworthy," Sanford told freedomforum.org "The newsworthiness standard can work quite well if you interpret it in that vast, broad way."

But he worries about the judiciary trying to define "news."

"It doesn't give the media and the First Amendment any degree of reliability or predictability," Sanford said. "And they end up being timid or cautious."

Robert Ellis Smith, founder of Privacy Journal, says he supports newsworthiness as a defense. But he says he wonders if programs such as those that feature only true-life videos really count as "newsworthy."

"News programs that do nothing but that, don't care much about newsworthiness," Smith told freedomforum.org "Those that do nothing but ride-alongs want to do it for entertainment value. It causes problem with court analysis. I think the courts have to make a distinction here."

Smith says he would prefer that news media draw the line, but he isn't holding his breath. Too often, he says, the media defend their actions by saying they were making a "judgment call."

"That's really a seat-of-the-pants, ad hoc decision," Smith said. "I'm really disappointed that the press refuses to develop principles to guide them in the future on this."

But newsworthiness doesn't always trump privacy, as press advocates learned last May with the Supreme Court's decisions in Hanlon v. Berger and Wilson v. Layne.

In the two cases — the former involving a Montana raid by fish and wildlife agents who were accompanied by CNN; the second, a Maryland raid by federal marshals and local police who allowed The Washington Post to observe — the court ruled that law enforcement agents violate constitutional rights when they invite the media along on raids of private property.

In the majority opinion, Chief Justice William Rehnquist scarcely mentioned the First Amendment, saying the decision in both cases had to be based solely on the Fourth Amendment right against unreasonable search and seizures.

In a case settled before it could reach the Supreme Court, the California Supreme Court determined in Shulman v. Group W Productions that a car-accident victim had a reasonable expectation of privacy once she was inside a medical helicopter.

"Courts have said, 'Sorry, it really doesn't matter if you were chasing the story,' " said Jane Kirtley, a journalism professor at the University of Minnesota School of Journalism and Mass Communication. "Basically, the only way out of it is if the person doesn't have a reasonable expectation of privacy."

And as with newsworthiness, Kirtley says it would be impossible to come up with a truly objective standard concerning "expectation of privacy."

"This gets to the point of a 'reasonable' and not a purely subjective standard," Kirtley told freedomforum.org "Can you differentiate between Bill Clinton's expectation of privacy and Joe Blow's? And there are different situations. That's why privacy experts always talk about Princess Diana. That's so fact-and-situation specific."

Journalists have learned, too, that truth as a defense — the stalwart argument against libel and, to some degree, false-light cases — doesn't fly with most invasion-of-privacy claims.

"It may be perfectly true that nobody in the case disputes the truth," Kirtley said. "But that makes it all the more damaging, because it is true. It's personal information they didn't want to give out."

Truth, for example, was never disputed in Food Lion v. Capital Cities/ABC Inc. In 1997, a federal jury awarded the grocery chain $5.5 million in damages for fraud, trespass and breach of loyalty associated with a "PrimeTime Live" hidden-camera expose. Last October, the 4th U.S. Circuit Court of Appeals whittled the damages to only $2.

Even the actual-malice standard developed in New York Times v. Sullivan in 1964 doesn't always stand, particularly when private figures are involved.

Although the Supreme Court weighed its first privacy case, Time Inc. v. Hill, in 1967 using the actual-malice standard, it dismantled the standard — at least in regard to private figures — seven years later in Gertz v. Welch. The court determined that a lawyer who had sued a John Birch Society magazine for labeling him a "Communist" only had to prove that the magazine was negligent.

Perhaps the only solid, certain defense against invasion-of-privacy claims remains consent. Even Samuel Warren and Louis Brandeis, in their landmark "The Right to Privacy" article, bluntly stated that: "The right to privacy ceases upon the publication of the facts by the individual or with his consent."

While privacy advocates have made small strides in intrusion cases, they have made great leaps in restricting access to government-held documents that contain personally identifiable facts.

Despite the passage of the federal Freedom of Information Act, press efforts to open records — or just keep them open — haven't always been successful. Particularly troublesome to news organizations was the Supreme Court's 1978 ruling in Houchins v. KQED Inc. Writing for the majority, Chief Justice Warren Burger noted that the court "has never intimated a First Amendment guarantee of a right of access to all sources of information within government control."

Eleven years later, the court held in Department of Justice v. Reporters Committee for Freedom of the Press that federal agencies may withhold "rap sheets" — compilations of arrests, indictments, convictions or acquittals — on private citizens, even though the information is public at its original source.

Since then, the court has cited privacy concerns in allowing federal officials to close records concerning refugees returned to Haiti in Department of State v. Ray (1991) and in denying union organizers access to addresses of government employees in Department of Defense v. Federal Labor Relations Authority (1994).

More recently, the court heard arguments in Reno v. Condon, a case involving the constitutionality of the federal 1994 Driver's Privacy Protection Act, which bars states and their employees from releasing most personal information about drivers. But the court is considering that case on 10th Amendment states' rights grounds and not on First Amendment or privacy claims.

Legal problems aside, press and privacy advocates agree that news organizations must reconsider how they do their job or risk further restrictions. Besides recent court actions, the press has found new obstacles erected by congressional and state legislators.

Members of Congress and several state legislatures have already considered so-called "paparazzi" bills designed to punish newsgathering efforts which intrude upon an individual's privacy. Last month, Sen. Herb Kohl, D-Wis., called for the formation of the Privacy Protection Study Commission to study the Freedom of Information Act as it pertains to privacy rights.

"The press has to get its house in order, because it has made some serious misjudgments and missteps when it comes to this area," said Don Pember, a communications professor at the University of Washington and author of Privacy and the Press.

First Amendment attorney Victor Kovner says too many news organizations use hidden cameras when such a practice should only be a last resort. Kovner cites ABC's reporting in the Food Lion case as a perfect example of a story that could have been told with regular news footage and without covert tactics.

Kirtley agrees that the news media must think seriously before relying on hidden cameras or the use of deception to get a story. She questioned why one network news operation bothered with hidden cameras to reveal movie theaters selling tickets to R-rated movies to children when they probably could have captured it in the usual way.

"It's not about censorship," she said. "It's about doing the story a different way."

Many advocates for both press and privacy agree that if news organizations improve their newsgathering and reporting efforts they may head off efforts by the courts and Congress to carve out a space for privacy.

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