By David L. Hudson Jr., First Amendment Scholar
September 14, 2004
“Privacy is the battleground of the future.”
— Lee Levine, leading First Amendment attorney
Perhaps the greatest clash involving freedom speech has been the continuing collision between freedom of the press and the right to privacy. Many First Amendment advocates view this clash as the greatest threat to First Amendment freedoms. The press has been targeted for its intrusive news gathering techniques and for publishing information about people’s private lives.
The concept of privacy has roots in several constitutional provisions. The First Amendment protects privacy by ensuring protection from compelled disclosure. The Fourth Amendment, which protects people from unreasonable searches and seizures by government officials, protects privacy in the home. The Ninth Amendment, which ensures that the people have more rights than those listed in the Constitution, has been interpreted to protect privacy. The courts have also interpreted the word “liberty” in the 14th Amendment’s due-process clause to encompass protection for personal privacy.
However, perhaps the largest amount of jurisprudence regarding the right of privacy comes from common-law (or judge-made) tort actions — the focus of this article.
The tort of privacy is a relatively recent one compared to other torts, such as battery. In 1890 a young Boston lawyer named Samuel Warren was upset at local press coverage. Some sources report that Warren was upset at coverage of his daughter at a local party. Others believe his ire was reserved for the press’s reporting of a guest list at a Beacon Hill party. Whatever the source of his frustration, Warren believed that the so-called “yellow press” was overstepping its bounds. Together with his partner Louis Brandeis, who later became a United States Supreme Court Justice, Warren authored a landmark law review article, “The Right to Privacy,” published in the Harvard Law Review.
The article noted that traditionally torts protected people from physical harm. However, Warren and Brandeis reasoned that the law should evolve to protect people from emotional harms, as well. They reasoned that the law should protect people’s “right to be let alone” — a phrase they borrowed from Michigan justice and academic treatise writer Thomas Cooley.
Brandeis and Warren wrote:
“Recent inventions and business methods call attention to the next step which must be taken for the protection of the person, and for securing to the individual what Judge Cooley calls the ‘right to be let alone.’ Instantaneous photographs and newspaper enterprise 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.’”
According to Warren and Brandeis, “the press is overstepping in every direction the obvious bounds of propriety and decency.” They were concerned about two chief evils: (1) “numerous mechanical devices” and (2) the overreaching conduct of the press.
More than 100 years later, it appears that Warren and Brandeis were indeed prescient. Two of the greatest current dangers to privacy are technological advances and an overreaching press.
After “The Right to Privacy” was published, many courts began to recognize a cause of action for invasion of privacy. However, the courts did so slowly and without consistency. Then, in 1960, legal scholar William Prosser wrote a law-review article in which he characterized the invasion of privacy as four separate sub-torts. This article was also influential in legal circles. According to authors Caroline Kennedy and Ellen Alderman in their book, The Right to Privacy: “If the privacy tort was born in 1890, then it came of age in 1960, again because of a legal article.”
To Prosser, invasion of privacy consists of the following four distinct subtorts:
Most jurisdictions have recognized these four sub-torts of privacy. Some states recognize only some of them. For example, North Carolina recognizes only the appropriation and intrusion torts. Texas does not recognize the false-light tort.
The intrusion tort best represents the commonly understood meaning of privacy. As the California Supreme Court wrote in 1998, it is “perhaps the one that best captures the common understanding of an ‘invasion of privacy.’”
The Restatement (Second) of Torts § 652B defines intrusion as follows:
“One who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of privacy, if the intrusion would be highly offensive to a reasonable person.”
This tort poses special problems for the news media, because it can be used to attack the news gathering techniques of investigative reporters. The cases focus on whether the media defendant photographed or followed the subject in a public place or trespassed onto the subject’s personal property.
Pertinent factors in intrusion cases include the location of the subject, the intensity of the news gathering activities, and the use of technological devices (high-powered lenses or hidden cameras). John Wade, another giant in the field of torts, wrote in a law-review article that examples of intrusion can include “peering into windows, continuing the shouting of threats or insults into a person’s home or mailing repeated threatening letters to the home, and eavesdropping especially by electronic means or by wiretapping.” He further explains: “The tort generally does not apply to activities like the taking of photographs in public places; it may lie, however, if the conduct is distinctly harassing and persistent, or if the photograph is under especially embarrassing circumstances.”
Perhaps the most famous example of intrusion by a newsperson was the persistent following of Jackie Onassis by paparazzi photographer Ron Galella. A court actually instituted an injunction prohibiting Galella from coming within a certain distance of Jackie O. and her children. Although the 2nd U.S. Circuit Court of Appeals in Galella v. Onassis (1973) eased a lower court’s injunction against Galella, he was still prohibited from approaching within 25 feet of Jackie O., blocking her movement in any public place and engaging in “any conduct which would reasonably be foreseen to harass, alarm or frighten the defendant.”
Other examples of intrusion occur when the news media use trickery to enter a person’s home and secretly record conversations. In the 1971 decision Dietemann v. Time, Inc., the 9th U.S. Circuit Court of Appeals wrote: “The First Amendment has never been construed to accord newsmen immunity from torts or crimes committed during the course of news gathering. The First Amendment is not a license to trespass, to steal, or to intrude by electronic means into the precincts of another’s home or office.”
In 1998, the California Supreme Court reinstated an invasion-of-privacy intrusion claim based on the press’ recording of conversations inside a rescue helicopter. In Schulman v. Group W. Productions, Inc., the California high court explained that a journalist “might be intruding on a confidential communication when he recorded a seriously injured patient’s conversations with medical personnel.”
The false-light tort has attracted the most criticism of the four privacy torts, largely because of its similarity to defamation claims. The Restatement (Second) of Torts discusses false light as follows:
“One who gives publicity to a matter concerning another that places the other before the public in a false light is subject to liability to the other for invasion of his privacy, if:
(a) the false light in which the other was placed would be highly offensive to a reasonable person, and
(b) the actor had knowledge of or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the other would be placed.”
A false-light case requires that the defendant made false statements or falsely portrayed the plaintiff. For example, broadcasting a picture of a woman walking down the street during a documentary on prostitutes could put the woman in a false light by suggesting that she is a prostitute.
The U.S. Supreme Court has considered a few invasion-of-privacy cases. In the 1967 decision Time, Inc. v. Hill, the Court ruled that in order to hold the media liable for privacy invasion, based on conveying false impressions about a matter of public importance, the plaintiff would have to meet the “actual malice” standard from its 1964 libel decision New York Times Co. v. Sullivan. (Times v. Sullivan defined actual malice as publishing something with knowing falsity or with reckless disregard for the truth).
The Hill case arose from a Life magazine article about the play The Desperate Hours. The play dramatized a family of four who showed great heroism while being held hostage by three convicts. The magazine article reported that the play was based on the ordeal suffered by James Hill and his family.
However, in the incident, the perpetrators did not harm the Hill family in any way. In the play, the convicts beat the father and son and the daughter suffered a sexual insult. The Hills sued under a New York civil rights law protecting the right of privacy. Though the Time, Inc. v. Hill case involved a New York statute, the case is cited for the proposition that false-light plaintiffs must meet the actual-malice standard required in defamation cases involving public officials. Many courts require false-light plaintiffs to meet this high standard even if they are private persons merely caught up in a matter of interest to the public.
In the 1974 decision Cantrell v. Forest City Pub. Co., the Supreme Court addressed a pure false-light claim. The high court upheld a jury verdict for a woman and her eldest son based on “inaccuracies and false statements” in a news story. In December 1967, Margaret Cantrell’s husband was killed along with 43 other people when a bridge collapsed. A reporter for The Plain Dealer of Cleveland wrote a story about the impact of the tragedy on the victims’ families. The reporter then did a follow-up story and focused on the Cantrell family.
The reporter interviewed several of the Cantrell children but Margaret Cantrell was not in when the reporter went to her home. Nevertheless, the reporter wrote:
“Margaret Cantrell will talk neither about what happened nor about how they are doing. She wears the same mask of non-expression she wore at the funeral. She is a proud woman. Her world has changed. She says that after it happened, the people in town offered to help them out with money and they refused to take it.”
The story also misrepresented the Cantrells’ standard of living. They alleged that the story placed them in a false light by making them the objects of pity and ridicule with substantial misrepresentations in the story.
The Supreme Court upheld the jury verdict, finding that the jury had sufficient evidence to find actual malice because the reporter “must have known” of several inaccuracies in his story. The high court concluded that the reporter wrote some “calculated falsehoods” and the jury was justified in its ruling for the Cantrells.
This privacy tort concerns many First Amendment advocates because, unlike a defamation or false-light invasion of privacy claim, a defendant theoretically can commit this tort by publishing truthful information. Because of this, the U.S. Supreme Court has said that “it is here that claims of privacy most directly confront the constitutional freedoms of speech and press” (in Cox Broadcasting Corp. v. Cohn, 1975). The Supreme Court reiterated this principle in the 1979 decision Smith v. Daily Mail Publishing Co.: “State action to punish the publication of truthful information can seldom satisfy constitutional standards.”
The Restatement (Second) of Torts § 652D defines this tort:
“One who gives publicity to a matter concerning the private life of another is subject to liability to the other for invasion of his privacy, if the matter publicized is of a kind that:
(a) would be highly offensive to a reasonable person, and
(b) is not of legitimate concern to the public.”
The make-or-break issue in these cases is whether the disclosed information is really private. The courts have rejected numerous private-facts tort cases because the disclosed information was contained in a public record.
In Cox v. Cohn, the high court ruled that the press could not be punished for truthfully reporting the fact that plaintiff’s daughter was a rape victim when the press obtained the information from a public record. The high court wrote that “the First and Fourteenth Amendments command nothing less than that the States may not impose sanctions on the publication of truthful information contained in official court records open to public inspection.”
The theory is that once a document is placed in a public record, it is no longer private. In other words, the published or broadcast information must be truly private for a private-facts lawsuit to succeed. In the 2000 decision Green v. CBS Broadcasting Corp., a federal district court in Texas rejected a public disclosure of private facts claim stemming from a broadcast that revealed the name, identity and other facts about a lottery winner’s wife and daughter, including allegations that the daughter had been sexually abused. The court rejected the privacy claim partly because the sexual-abuse allegations were part of the divorce proceeding between the lottery winner and his wife. “Plaintiffs’ argument is untenable because it assumes a critical, but missing element of their cause of action, namely, that the published information is private,” the court wrote.
A private-facts plaintiff must also show that the “private” information disclosed is not of “legitimate concern” to the public. Many courts have applied a “newsworthy” privilege, especially when dealing with media defendants. The question becomes whether the released “private” information was newsworthy.
Courts apply the “newsworthy” notion differently. The Restatement (Second) of Torts says that “the line is to be drawn when the publicity ceases to be the giving of information to which the public is entitled, and becomes a morbid and sensational prying into private lives for its own sake” (§ 652D, comment h).
Courts will apply several factors in determining newsworthiness. For example, one court considered the following three factors: 1) the social value of the facts published; (2) the depth of the article’s intrusion into ostensibly private affairs; and (3) the extent to which the party voluntarily acceded to a position of public notoriety.
The first state supreme court to recognize an invasion-of-privacy claim was the Georgia Supreme Court. In its 1905 decision Pavesich v. New England Life Ins. Co., the state high court determined that a man had a valid invasion-of-privacy claim against an insurance company that used his name and picture in conjunction with a false testimonial talking about the benefits of purchasing life insurance.
The appropriation tort prohibits someone from using someone else’s name, likeness or personality for advertising, a commercial purpose or similar use. The Restatement (Second) of Torts § 652C defines the tort this way:
“One who appropriates to his own use or benefit the name or likeness of another is subject to liability to the other for invasion of privacy.”
Some legal commentators say that this tort really is a combination of two torts — misappropriation (for private persons) and the right of publicity (for celebrities).
The main concern of a private person alleging appropriation is compensation for mental anguish, while the main concern of a celebrity is the economic value of his or her name or likeness. Often, these concerns overlap. For a tort to be successfully claimed, the “commercial” use of a person’s name or likeness must have occurred. Thus, just because a magazine uses a plaintiff’s photo in a story without authorization does not mean the plaintiff can recover for appropriation. The magazine might argue that the plaintiff’s name and photo were in no way used to advertise the magazine.
An appropriation claim, above all else, requires that the defendant use the plaintiff’s likeness for a commercial purpose. In the 1990 decision Puckett v. American Broadcasting Companies, Inc., the 6th U.S. Circuit Court of Appeals rejected the appropriation claim of a nude dancer who was featured in brief background shots in a television piece. The court focused on the fact that the background shots of the plaintiff were incidental to the story and not used for a commercial purpose.
Warren and Brandeis were prescient in their forceful articulation for a common-law right of privacy. Americans may guard their privacy rights as much or even more than their First Amendment rights. Given ever-increasing technological advances, many believe that privacy rights need to be protected even more.
In the 2001 U.S. Supreme Court decision Bartnicki v. Vopper, which involved the news media’s disclosure of intercepted cell-phone conversations, Justice Stephen Breyer wrote in his concurring opinion: “The Constitution permits legislatures to respond flexibly to the challenges new technology may pose to the individual’s interest in basic personal privacy.”
However, this rush to protect personal privacy can infringe on the ability of the press to report on matters of important public interest. Ken Paulson, former executive director of the First Amendment Center and now editor of USA TODAY, may have said it best: “The challenge is to hold invasive technology at bay without handcuffing the news media. Concerns about personal privacy and a free press are on a collision course, and our nation’s priorities hang in the balance.”