Inside the Media
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To order Winning with the News Media:
Below are excerpts from the Privacy chapter of
Winning with the News Media
By Clarence Jones
Get Out of Here . . .
And Leave Me Alone
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.
An Evolving Legal Concept
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.
Law Lags Behind Technology
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.
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Where Cameras Can Go
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.
No Privacy in Public
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
Notice in this chapter — even more than in the Libel chapter — how often I use fudge words like probably — apparently — in most cases — in all likelihood.
Because every case is different, and the law so new. The outcome will depend on how judges and juries react to the facts and conflicting values.
Special Media Access
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.
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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.
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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.
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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.
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Public People: Less Privacy
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 —
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.