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Many suits against the media now claim invasion of privacy, not libel. Jurors have strong feelings in this area. So do judges. Privacy cases focus on personal, emotional beliefs in conflict with each other.

Appellate courts take widely different views of similar cases, depending on the judges’ personal experience and attitudes about the news media. Jurors are swayed more by an attorney’s appeal to their outrage than by the law and legal precedent.

Today’s technology gives the media powerful new tools for intrusion into private lives. Cameras are smaller and easier to hide. Conversations are easily recorded surreptitiously. Computers and the Internet provide the ability to rummage through the closets of your life in ways that have never before been possible.

Personal privacy is a relatively new legal concept in this country. It is still evolving.

The Bill of Rights protects citizens against unreasonable search and seizure. But that is a protection from government intrusion — not media corporations, or individual journalists.

We inherited criminal trespass from British Common Law. But that protects your real estate from intrusion. The idea of a right to privacy in your personal life was not even conceived until the 1890s, when newspapers became more sensational with stories of gossip and sexual scandal. They even published pictures.

The law has generally lagged well behind the technology. In the 1950s, the old statutes forbidding wiretaps became ineffective. Better ways had been invented. It was no longer necessary to physically tap into telephone lines. Electronic "bugs" and inductance devices were widely used to pick up conversations and were technically not an illegal "tap."

A comprehensive federal statute to protect the privacy of conversation was not adopted until 1968. There still is no statutory privacy protection from the telephoto lenses of the news media.

Let’s go back now to trespass — physical intrusion — and work forward to the latest electronic eavesdropping.

A photographer has the same freedom of movement as anyone else. If you can walk down the sidewalk, so can a television or print photographer.

We have public places in this society where anyone can legally go, unless a state of emergency is declared. Places like streets, parks, subways, beaches, public buildings.

Privacy decisions in court often hinge on what is reasonable and customary. Customs, and what seems reasonable, change.

Generally speaking, you have little or no right of privacy from the media if you are in a public place. So long as everybody in that public place can see you, the media can photograph you, write about what you did there, and publish the pictures. You have no legal recourse.

If you don’t want to be seen, don’t go out in public.

Off-Limit Public Places

There are some public places which by custom are not truly open to the public.

A public school classroom, for instance, is a public building, paid for with tax dollars. The teacher is a public employee.

But custom says you can’t just barge in and interrupt the class. Even if your child is a student there, you’re expected to check in at the principal’s office and get permission.

Reporters and photographers are expected to do the same thing, and would probably lose a lawsuit if they suddenly entered, cameras rolling, disturbing the teacher and the students.

It All Depends

We sometimes give the news media special access so they can represent the public and report what happens. At a major trial, for instance, seats are reserved for the media and many spectators are shut out. There’s just not enough room for everybody.

Reporters and photographers are customarily allowed beyond police lines at disasters so they can see, record and photograph the victims and the rescue effort.

Later in this chapter I’ll cover cases where journalists accompanied government authorities with special power into people’s homes. Can reporters and photographers go with them? For years, the courts said yes. The U.S. Supreme Court now says no.

Cameras in Congress

There are some public places where citizens are welcome but cameras and microphones are barred. Television cameras were not allowed to cover proceedings in the U.S. House of Representatives until the 1970s.

The U.S. Senate allowed television camera coverage of its committee hearings as early as the 1950s (McCarthy & Kefauver committees) but did not allow daily, continuous coverage of proceedings in the Senate chamber until 1986.

Cameras in Courtrooms

Almost all American trials are open to spectators. Because the Constitution guarantees a right to trial by a jury of your peers, case law has almost always said the public has a right to be represented by the media to make sure the justice system is working properly.

But news cameras are not welcome in many courts. Almost all federal trial courts forbid cameras.

News cameras were barred from the trial of Oklahoma City Federal Building bomber Timothy McVeigh. But the trial was televised, through a closed-circuit system, to a room where survivors of the bombing and families of the victims could watch.

That was made possible by a special law Congress passed after survivors and family members pleaded for access. Security was extremely tight, to make sure the news media did not acquire any of the pictures.

The chapter continues by examining the O. J. Simpson trial, its news coverage, and what that did to attitudes about cameras in courtrooms. It provides current statistics on cameras in federal and state courts.

Back to personal privacy. The next areas in which the media can intrude on personal privacy are semi-public places. Privately owned, but open to the public. Stores, restaurants, bars, offices. Anybody can walk in. There is an understood, open invitation.

In a truly public place, a reporter or photographer cannot invade your privacy unless they physically harass and intimidate you. When they walk into a semi-public place, the rules shift.

Most cases now seem to indicate still photographers or TV camera crews can come in shooting, but must leave if the owner of the semi-public place tells them to. If they don’t leave, they become trespassers. This increases the likelihood a court will decide they also invaded personal privacy. This would apply to almost any place of business.

The chapter looks closely at a series of landmark court cases that indicate where the state of privacy law is at the moment, including a new U.S. Supreme Court decision banning media entry into homes with law enforcement officers who have a search warrant.  It then moves into the history and current status of laws forbidding wiretapping and electronic eavesdropping -- "bugs."

Simply stated, federal law says if you participate in a conversation, you may record it. But if you plant a microphone, tape recorder, or bug to intercept a conversation you cannot hear, then you have committed a serious federal crime.

It is the interception — the listening in — that constitutes a crime in most laws against eavesdropping — not the recording.

Under this law, police agencies must get court approval to intercept conversations if they — or their informants — are not participants. The court approval is an electronic search warrant.

Electronic Search Warrants

If a police officer goes before a judge with sworn information that you have contraband hidden in your home, the judge issues a search warrant. It gives the police the right to go into your home or office and search for evidence of a crime.

In the same way, if a police officer has sworn information that you are about to have a conversation that would become evidence of a crime, the judge can give the officer a warrant to search for that conversational evidence electronically. The officer must certify that conventional investigative techniques will not work; that the eavesdropping is a technique of last resort.

State Eavesdropping Laws

Federal law gives states power to pass more stringent eavesdropping regulations, if they choose. A few states have laws that make it a crime to secretly record conversation, even if you participate in that conversation.

In those states, it is a felony to record your telephone calls — to record any conversation whatsoever — unless everyone whose voice is intercepted knows the microphone or "bug" is picking up what is being said.

In states that have not adopted more stringent laws and use the federal standard, you may record your telephone calls without telling the other person, if you use a suction cup or other inductance pickup that does not physically tap into the telephone wires. You can wear a small recorder to tape conversation.

In those states, reporters can secretly record what you say and use it later in their stories.

In the more stringent states, reporters cannot secretly record your voice. If a recorder is in use, they must tell you.

The chapter shows how the law can be skirted, where a TV audience can read your lips in on a videotape secretly recorded, even though they can't hear your voice. It goes into what the law calls "an expectation of privacy;" covers the use of telephoto lenses by both law enforcement and the media, and computer hacking as a form of privacy invasion.

Intrusion into the secret details of your personal life is another matter. It may involve some kind of physical trespass to obtain those details, but not necessarily.

The concept was first proposed in December, 1890, in a Harvard Law Review article written by two young lawyers who had roomed together in Cambridge — Samuel Warren and Louis Brandeis.

Brandeis would later become one of the legendary justices of the U.S. Supreme Court. Warren’s family was prominent in Boston society. They threw lavish parties. Press gossips constantly pestered the family and tried to spy on their parties.

The Right To Be Left Alone

Warren and Brandeis published their novel idea in a Harvard Law Review essay. "Instantaneous photographs and newspaper enterprise," they wrote, "Have invaded the sacred precincts of private and domestic life."

Remember now, this was more than 100 years ago.

It is time, they said, to create a new area of law in America that would guarantee the right of personal privacy. Their definition is still used today:

Personal privacy is the right to be left alone.

The chapter continues with a look at the Jackie Kennedy Onassis case, where a judge ruled that a pesky photographer had invaded her privacy in public places; an examination of the human decency reaction by the police and the public when the media intrude on people in deep grief; case law that weighs "public good" against personal privacy; how published facts from your life that are true cannot libel you, but may give you grounds for a successful privacy lawsuit; public figures and their rights to privacy, with examples of famous people whose private lives and careers have been altered by media exposure; how much that concept changed in the period between the presidencies of Franklin D. Roosevelt and Bill Clinton.

The rule of thumb seems to be: the higher in government, and the more contact with the public, the less privacy you have. Judges, police officers and school teachers probably have less privacy than government auditors or secretaries, on the theory that their character can affect the quality of their public work.

Outside government, the more visible and newsworthy you are, the less privacy you have. Officers of a major labor union or corporation give up some of their privacy. Lawyers who represent famous clients can become public figures, along with journalists, entertainers and professional athletes.

We are still trying to determine how far the media should be allowed to go in invading private lives.

The lines are difficult to draw. Verdicts in one state disagree with those in another. It is new law, growing and being reshaped each time a jury wrestles with the facts in a specific case.

Recap Libel & Privacy

Let’s recap —

	If the story is true, you can’t win a libel suit
	If the story is false, public officials and a public persons can win a libel suit only if they prove the story is false; and was published with malice and/or reckless disregard for the truth
	Libel cases have determined that one sure indication of malice is to know a story is false — or to have serious doubts about the facts — and run the story anyway
	True or false, a story can invade your privacy
	You have almost no privacy from a camera in a public place
	If you are in a private place, a news photographer outside, shooting with a telephoto lens, does not invade your privacy
	Broadcasting or publishing what is shot with a telephoto lens can invade your privacy if a court decides your privacy outweighs any public good served by the publication or broadcast
	Photographers can come into a privately owned place where the public is invited, but may invade privacy and become trespassers if the owner asks them to leave and they refuse
	Federal law does not prohibit secret recording of telephone conversations by people who participate in those conversations, but some states have more stringent laws that prevent all secret interception and/or recording by private citizens
	Spreading facts about your past — and intimate portions of your present — may do more personal damage than public good, and therefore become an invasion of your privacy
	Invasion of privacy verdicts are often returned when a jury feels:

	They shouldn’t do that.
	I wouldn’t like it if they did that to me.
	That person had a right to be left alone.

In the near future, court cases could decide that people have a right to privacy, even in public places, during moments of deep grief or other emotional stress.

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