ACJ Review: Journalism and the Debate Over Privacy

Volume 7, Issue 2004

Journalism and the Debate Over Privacy

LaMay, Craig (Ed.)

Mahwah, NJ: Lawrence Erlbaum Associates, 2003
176 pages
Cloth
ISBN 0-8058-4626-3
US $39.95

Reviewed by: Ronald Bishop, Drexel University
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Reviewing this book could not have come at a better time: I recently began a class titled “Journalism, Courts, and the Law,” where I teach how to cover civil and criminal litigation against a backdrop of the legal issues that shape the craft of reporting. My review of LaMay’s extremely valuable collection of essays also comes as we struggle with dire threats to our civil liberties, including the right to privacy – the right “to be let alone,” in the words of Justice Louis Brandeis.

Frederick Schauer leads off the book with a discussion of how the contours of privacy are changed by technological advances. Noting that email, cell phones, and PDA’s have changed our lives is only half an argument, he clams; privacy is socially constructed, and as such, has to change right along with us.

Schauer raises another key point, one that runs through several of the essays: how does privacy change when so many of us are doing all that we can not to be private? How does our expectation of privacy change when so many seemingly clamor to appear on reality shows?

Randall Bezanson answers Schauer in a thorough, but at times hard to follow exploration of how the press grapples (and sometimes mangles) the distinction between private and public acts. His thought-provoking discussion of Food Lion’s suit against ABC for a Prime Time Live broadcast that revealed unsafe food handling practices made me rethink how I teach the case. I tell my students to consider using a hidden camera only if all other means of newsgathering have failed. I knew, but had only discussed in passing, that ABC had not exhausted their options before sending in producers to gather evidence for their story. The public benefit justifies the means, I argue. Fair enough. But what about sitting on that evidence until sweeps month, as ABC did? I believe that deception is a valid tool in the journalist’s arsenal, but should only be employed if that journalist immediately shares the information he or she uncovers. Boy, will I change that lecture.

The essays collected by LaMay come from some of the most eminent writers on the subject. Perhaps the book’s most poignant essay is its shortest: former New York Times columnist Anthony Lewis notes that while he a staunch First Amendment advocate, and believes in “a cantankerous press, an obstinate press, a ubiquitous press” (the words of Murray Gurfein, the judge who ruled in the Pentagon Papers case), journalists should not “treat the interest of privacy with contempt” (p. 67). Our lives would collapse if we expressed – or if journalists revealed – every thought, every feeling.

The Supreme Court hasn’t always bought into this idea; in 1967, the high court reversed a judgment for James Hill and his family, who had sued Life magazine for covering the play that had turned their 19-day hostage ordeal into a public spectacle. Inflicting “needless, heedless, wanton, and deliberate injury” (p. 64) is not a valid tool in the journalist’s arsenal, especially when private, otherwise obscure individuals (like the Hills) are the victims. Reversing the jury award, the Court, applying the newly-minted “reckless disregard” standard developed in New York Times v. Sullivan (1964), ruled that the Hills could not recover because Life did not incorrectly report the story.

None of this means that journalists should not report accurate information about an individual who prefers that the facts remain private, or that they should never employ covert means to gather information, as Anita Allen notes in an essay that provides a compelling counterpoint to the contributors mentioned so far. She makes a helpful distinction between “duty” stories (p. 84), where the public will surely benefit from the information gathered despite possible damage to privacy, and “optional” stories whose value to the reader is limited, and cannot support an invasion of privacy.

But what if journalists can’t get at the information they need? Jane Kirtley suggests that the Supreme Court has, in two recent decisions, given public officials the ability to circumvent the ideally that a journalist can use information as long as it is legally obtained. Treating all databases – even formerly public databases – as a commercial property – encourages officials to put procedural hurdles in the path of reporters.

While the Supreme Court has never recognized an absolute right to privacy, it “has recognized valid privacy interests in certain circumstances,” as Kirtley notes (p. 109). LaMay’s contributors suggest that journalists need a crash course in recognizing these circumstances. His collection of essays would be a perfect text for that course.