Journalism

Privacy in the United States means many things, although it was perhaps best summed up by Judge Thomas Cooley as the “right to be let alone.” Privacy torts—areas of law enabling individuals to sue for monetary damages because of intrusions or communications harmful to privacy—originated in part from perceptions of journalistic misbehavior, making it possible for individuals to sue journalists, advertisers, and others for “invasion of privacy.”
In 1890 two Boston law partners—Samuel D. Warren and future Supreme Court justice Louis D. Brandeis—published the Harvard Law Review article “The Right to Privacy.” The article did not advocate a constitutional right, but rather argued that a new, independent legal action for invasion of privacy could be found by taking pieces of existing tort law, including trespass to property and defamation. Warren and Brandeis wrote in a famous passage, “The press is overstepping in every direction the obvious bounds of propriety and decency.” They asserted that gossip was a trade pursued with “industry as well as effrontery. . . . Modern enterprise and invention have, through invasions upon privacy, subjected . . . [modern man] to mental pain and distress far greater than could be inflicted by mere bodily injury.”
In 1890 a brash invasion of privacy led to a famous early lawsuit. Abigail Rober-son sued the Rochester Folding Box Co. for $15,000 after she found a picture of her face decorating a box of Franklin Mills flour along with the slogan “The Flour of the Family.” New York’s highest court ruled that Roberson could not collect damages because there was no law protecting privacy, adding that the legislature could create one. New York’s legislature responded to the public dismay and to newspaper editorials denouncing the Roberson decision by passing a statute in 1903 that made it a tort and a misdemeanor to use someone’s name or likeness without the person’s permission for “trade purposes.” Other states did not wait for legislative action. In 1905 the Georgia Supreme Court ruled in a case involving an unauthorized testimonial in an advertisement for life insurance that there is a legal interest preventing the use of pictures of individuals without their consent.
Privacy in the twentieth and early twenty-first centuries has been a continuing concern and political issue. Since 1905 legal definitions of privacy torts expanded haphazardly, sometimes by legislative enactment and often by judicial or “common law” adoption of the concept. In 1960 Dean  L. Prosser of the University of California School of Law, America’s foremost torts scholar, wrote a remarkably influential California Law Review article, “Privacy,” defining four somewhat overlapping areas of law in a manner readily accepted by both state and federal courts: intrusion, false light, appropriation, and publication of private matters.
Intrusion on a person’s physical solitude includes trespass, eavesdropping, and wiretapping or other interception of electronic communication. Prosser included window peeping in his definition, but his view from 1960 could not foresee all of the problems that would come to be associated with the use of increasingly sophisticated electronic devices, including “bazooka microphones,” miniature cameras, computers, cellular telephones, and the Internet. This Prosser category, by the late twentieth century, had assumed a journalism-specific label, “newsgathering torts.”
The key intrusion precedent involves a Life magazine reporter and a photographer who made an unethical deal with authorities to entrap an unlicensed medical practitioner. The Life staffers got into the practitioner’s home under false pretenses, with the woman reporter claiming that she had a lump in her breast. The reporter had a transmitter in her purse, which broadcast her conversations with the practitioner, a plumber named A. A. Dietemann, to a nearby automobile, where representatives of the district attorney’s office and of the California State Department of Health listened and made a tape recording. Life published an illustrated article, and the information gathered by the reporter and photographer was used to convict Die-temann of the unlicensed practice of medicine. Dietemann then sued the magazine for invasion of privacy.
Life attorneys argued that electronic devices and hidden cameras are indispensable tools of investigative reporting. Writing for the U.S. Court of Appeals, Ninth Circuit, in Dietemann v. Time, Inc. (1971), Judge Shirley Hufstedler upheld a small jury award of $1000 against the magazine for invasion of privacy. The award was small, but the message was clear: “investigative reporting is an ancient art,” existing long before electronic devices and miniature cameras. The First Amendment, Hufstedler declared, provides journalists with no immunity from torts or crimes committed in the gathering of news.
That principle applies to journalists and others who invade privacy by means of old-fashioned eavesdropping, or who use high-tech means to intercept cell phone messages, voicemails, or electronic mail messages via the Internet. Photographers and videographers are permitted to capture images in public spaces; they are not permitted, however, to intrude into private spaces or to use sophisticated telephoto lenses or microphones that can pick up conversations at a distance far beyond the range of human hearing. The egregiously aggressive shadowing of celebrities by “paparazzi” photographers, even on public thoroughfares, can be banned by judicial order. There are no trustworthy legal defenses if the tort of intrusion occurs. In this and other privacy torts, if a jury is convinced that a plaintiff’s legitimate “expectation of privacy” has been violated, a verdict against the media is likely.
False light (fictionalization) was defined by Prosser as placing someone in a false but not necessarily defamatory light in the public eye. This is the privacy tort closest to defamation of a person’s reputation, and it is the only area of invasion of privacy law where proof of truth is a viable defense. The key precedent here involved a woman, Margaret Mae Cantrell, who was included in a reporter’s story even though he had not spoken with her. The reporter gave the impression that he had talked to her about her life six months after her husband had been killed (along with 43 others) when a bridge collapsed. The story for the Cleveland Plain Dealer said that the reporter saw the woman “wearing the same mask of non-expression” that she had worn at her husband’s funeral. The Supreme Court of the United States agreed that this constituted an actionable knowing and reckless falsehood.
Media employees’ deceptiveness with sources is related to the false light tort. For example, the producers of NBC-TV’s Dateline news magazine convinced a truck driver and his employer that the program was going to focus positive attention on the trucking industry. Instead, the program declared that American highways are a trucker’s killing field. A U.S. Court of Appeals allowed the case to go to trial for negligent representation and false light.
The false light tort’s similarity to defamation is illustrated by a lawsuit against Life magazine by the James J. Hill family. The Hill family had been held hostage for a day by three escaped convicts, who terrorized but did not harm the family. A best-selling novel based on a highly similar situation, The Desperate Hours, was made into a play, and a Life photo-essay headlined “True Crime Inspires Tense Play” depicted actors from the play in their roles as the son and one of the convicts. The Supreme Court found that individuals who bring false-light lawsuits involving newsworthy accounts must meet the libel standard of proof set in New York Times v. Sullivan (1964); that is, the plaintiffs claiming “false light” in a situation of public interest must prove “actual malice”—publication with knowing falsity or with reckless disregard for the truth. As Justice J. Brennan, Jr., wrote for a divided Court in Time, Inc. v. Hill, 385 U.S. 374 (1967), “Material and substantial falsification is the test.”
That ruling, however, might not withstand courts’ twenty-first-century impatience with broad claims of First Amendment rights for news media. Also, there is concern over the false-light tort because it overlaps reputational interests protected by defamation law. As of 2005 all but 10 states recognized false light. In 1994 a convict’s whimsical lawsuit gave the Texas Supreme Court the opportunity to renounce the tort. Clyde Cain sued Hearst Corporation’s Houston Chronicle for reporting that Cain might have killed eight people. Cain sued because he had killed only three. This led the highest civil court in Texas, by a 5-4 vote in 1994, to abandon the false-light tort because it duplicates the tort of defamation “while lacking many of its procedural limitations.”
Celebrities have property rights in their likenesses or images. Successful suits have been brought by baseball players for unauthorized use of their likenesses on baseball “trading cards” or for videotaping, without permission, entertainment performances (including being shot from a cannon, in the case of Zacchini v. Scripps-Howard Broadcasting (1977). Entertainers provide fertile grounds for parodies, but courts have not been uniformly protective of heavy-handed social commentary or humor. A jury awarded $403,000 to TV celebrity Vanna White of the Wheel of Fortune game show, finding that a Samsung Electronics advertisement featured a robot too closely resembling White.
“Sound-alike” ads also cause problems. When entertainer Bette Midler—”the Divine Miss M”—refused to perform a song from her repertoire for a Ford Motor Company advertisement, Ford’s advertising agency (Young & Rubicam) hired a singer to mimic the star’s voice. Ms. Midler won $400,000.
The general rule in privacy lawsuits, as in libel law, holds that “the dead can’t sue.” However, the estates of deceased celebrities, including Elvis Presley, mystery author Agatha Christie, rock star Janis Joplin, and Rev. Martin Luther King, Jr., have on occasion successfully asserted “descendibility.” That means that a celebrity’s estate can at times control and profit from the commercial exploitation of aspects of the famous dead person’s appearance or performances.
Prosser defined this tort as the revelation of private information violating ordinary decencies, for which truth is no defense for the developer. Newsworthiness, however, can be a potent defense, as Oliver Sipple learned from his effort to sue the San Francisco Chronicle. In 1975 decorated U.S. Marine veteran Sipple became a national hero and made international news while watching a parade featuring President Gerald Ford. When Sarah Jane Moore pointed a pistol at the president, Sipple grabbed her arm, defeating her assassination attempt. A Chronicle columnist wrote that San Francisco’s gay community was proud of Sipple’s courage. Sipple argued that publication of his sexual orientation invaded his privacy, suing the Chronicle and the Los Angeles Times for damages totaling $15 million. His lawsuit failed when a California appellate court found that Sipple was such a newsworthy subject of public interest that he could not pursue his claim of invasion of privacy.
If private facts about a person become part of an official public document, disclosure of those facts will not support a lawsuit against the news media. Even disclosure of a rape victim’s identity—the kind of revelation that reputable media organizations generally avoid on ethical grounds—is not actionable if the information is gained from an official public record, the U.S. Supreme Court held in Cox Broadcasting Corp. v. Cohn, 420 U.S. 469 (1975), a ruling later broadened in Florida Star v. B. J. F. (1989). Although private-facts lawsuits are difficult to win against news media, growing judicial impatience with intrusive news media procedures and public concerns over the evaporation of privacy may well make both judges and juries more supportive of privacy lawsuits. In the 1980s, the Oakland (California) Tribune published a truthful but tasteless gossip column revealing that Toni Diaz, the first woman student body president at the College of Alameda, was born Antonio Diaz and had undergone a sex change operation. After the case languished for years in the California courts, an appellate judge ruled that the question of newsworthiness in this matter should have been submitted to a jury. The newspaper ended the lawsuit with a six-figure out-of-court settlement to Ms. Diaz.
In the search for new weapons to use against the media, “intentional infliction of mental injury,” sometimes styled “negligent infliction,” appeared to be a powerful legal concept in the mid-1980s. The ancient law of libel has developed hard-to-overcome defenses, as have the far newer privacy torts. Larry Flynt’s Hustler magazine published a scurrilous parody advertisement, clearly marked “ad parody—not to be taken seriously,” asserting that Rev. Jerry Falwell’s first sexual experience took place in an outhouse with his mother when both were drunk. Falwell sued for intentional infliction of mental injury. He also added the more traditional tort areas of defamation and invasion of privacy to his petition.
The jury in the Falwell case decided that the parody ad was not libelous because no one would believe it. The jury likewise found that the parody was not an invasion of privacy, but concluded that Rev. Falwell should be awarded $200,000 for intentional infliction of mental injury, an outcome upheld by the Fourth Circuit U.S. Court of Appeals.
The U.S. Supreme Court, however, found that First Amendment values protected even this repugnantly offensive parody advertisement involving a public figure. Writing for a unanimous Court in Hustler v. Falwell (1988), Chief Justice  H. Rehnquist concluded that any system of civil damages that might be used to teach Flynt a lesson also would endanger the long American tradition of political cartoons or speech critical of public officials or public figures. This decision discouraged attempts using emotional distress lawsuits against the media to leap over established defenses in libel and privacy law.