Will the Bubble Burst on Our Right to Privacy?

by Hans Rollman

19 February 2015

A legal scholar and former journalist warns that if modern media pushes the envelope too far, we could all wind up losing.
 
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The First Amendment Bubble: How Privacy and Paparazzi Threaten a Free Press

Amy Gajda

(Harvard University Press)
US: Jan 2015

Imagine there’s an assassination attempt against the US President.

And just in the nick of time, an ex-US Marine in the crowd leaps forward, tackles the would-be assassin and knocks the gun out of their hand, saving the President’s life.

Now imagine it’s the early ‘80s when all this happens (yes, that is Julio Iglesias and Willie Nelson singing a duet on the radio), and homosexuality is still stigmatized in public media. And imagine that it turns out the citizen-hero who saved the President’s life is gay. News media broadcast the fact widely, outing the man despite his wishes, and costing him personal relationships, including those of family members and work colleagues he’d kept his gay identity secret from.

Has his privacy been violated? He himself asked the press to keep his gay identity quiet. But, argue members of the press, it was newsworthy, and they used the incident to point out how bigoted and incorrect anti-gay stereotypes are. They portrayed him as a courageous, daring hero who saved the President. Moreover, the fact the President didn’t immediately offer an adequate public thanks to the man—and later only sent a brief note—does that indicate homophobia? And if indeed the President was homophobically refusing to thank the man who’d saved his life, wouldn’t that be newsworthy?

This very scenario in fact happened. Oliver Sipple was the hero who averted an assassination attempt against President Gerald Ford. Courts sided with the press, dismissing Sipple’s lawsuit against them for outing him and invading his privacy. 

This is just one of several cases former journalist-turned-law-professor Amy Gajda analyzes in her provocative and well-researched study The First Amendment Bubble: How Privacy and Paparazzi Threaten a Free Press. She looks at other cases over the course of the 20th and early 21st centuries—from intrusive reality television programs to Gawker’s defiant publishing of the Hulk Hogan sex tapes—to demonstrate that US courts have, historically (and with some notable exceptions), by and large adopted a liberal and expansive interpretation of First Amendment rights, often siding with the media over private individuals. This tendency reflects the court’s acknowledgement of the important public role played by media and journalism in informing and shaping our understanding of the world. More specifically, it reflects a belief that courts are not there to determine what is in good taste and what is not, and what is newsworthy and what is not. That’s up to the journalists, who ought to have the discretion to use their professional judgement in determining what to broadcast or publish, and what not.

But in the recent explosive Internet era—with its unprecedented array of social media, technologies, and quasi-journalistic websites like Gawker competing for increasingly scarce ad revenue—all that may be about to change.

Gajda’s book serves as a warning that courts may be losing patience with repeated appeals from media organizations—which may or may not properly be considered journalistic—claiming that their right to broadcast increasingly intrusive and personal material is of newsworthiness, and in the public interest. Her argument is that these profit-driven, sensationalistic efforts to push the limits of the First Amendment will wind up spoiling press freedoms for the professional mainstream press, by setting court precedents that chip away at First Amendment rights for everyone. Her analysis “suggests a First Amendment bubble, not unlike those seen in other contexts, such as housing, the tech industry, and financial markets, where heedless expansion ultimately proved unsustainable…[until] First Amendment freedoms so far exceed their original foundation that they are at risk of a calamitous collapse, jeopardizing all future protection.”

It’s a timely intervention, and Gajda carries it off convincingly. The first half of the book demonstrates the shift in how courts have treated the media’s First Amendment rights over roughly the past century: from the ‘golden age’ of the post-war, pre-internet era when journalists were given broad respect and discretion by the courts to operate on their own judgement, to the turn of the century shift in which courts appear to have begun reigning in the excesses of internet-based reporting and other forms of journalism and pseudo-journalism. Gajda charts this shift by drawing on dozens of cases, explained in sufficient depth for both readers with legal expertise as well as those without.

The second half of the book shifts to a deeper analysis of journalism itself. What it offers is a trenchant critique of contemporary journalism, squeezed on the one hand by shrinking budgets and growing demands for profit, and on the other by the complicated opportunities afforded by new technologies and social media. Reality television programs, revenge porn websites, even comment sections on mainstream news websites have all posed challenging questions around where to draw the line on privacy rights as pitted against public interest, free speech and press freedoms. The problem is how to interpret media rights in such a way as to distinguish reporting that follows professional standards and ethical guidelines, from ‘reporting’ that is intrusive, unethical and profit-driven. In an era of rapidly changing technology, however, even the question of what is ‘ethical’ generates an increasingly diverse range of responses.

Meanwhile, even so-called professional journalists feel pressures to bend or relax their ethical standards. The public expects reporters to live-Tweet from newsworthy events, where the reporter has no ability to fact-check, verify information, do research or provide broader context and analysis—precisely the opposite of what professional journalism teaches. Emails from editors letting reporters know which stories received the most online hits and shares each week send subtle cues that make journalists question how to balance their ethical and professional standards with the expectation that they are supposed to produce content that will appeal to readership and advertisers.

Gajda targets what she refers to as ‘quasi-journalists’. The category loosely draws together publishers that operate in such a way as to assume some of the forms and appearances of mainstream reporting, and that lay claims to the rights of the press, yet operate outside of the professional standards and ethical norms of mainstream journalism. It is, of course, this group which threatens the rights of the ‘professional’ press. Every time quasi-journalists such as Gawker push the envelope and trigger lawsuits, the wide impact of a ruling designed to rein in Gawker (or others) could have implications for mainstream journalism, as well. Some of the country’s most respectable newspapers have found themselves in the situation of filing court briefs in support of quasi-journalist legal defenses not because they support something like the Girls Gone Wild video series, but because they fear a ruling against the program could restrict their own ability to broadcast film from public gatherings or obtain the names of lawsuit parties.

Might it already be too late? Gajda closes her book by chronicling several recent cases that suggest courts have already begun raising privacy rights over First Amendment rights. This might come as good news for those fearful of their own eroding privacy in an era where the law seems barely able to keep up with technological advances. But it could have negative implications for society more broadly. When the press is unable to share accurate reporting about the issues that shape our lives and our society, we become disenfranchised and alienated from our own democratic institutions. Moreover, it removes an important check on government and corporate power. Watergate came about because a bold and confident team of journalists knew they could fearlessly pursue a story that challenged power. But if court rulings undermine the rights and freedom-of-activity of journalists, it becomes less likely that a Watergate-style investigation would be initiated, let alone successfully pulled off, in the modern era.

Compelling though Gajda’s argument is, it raises broader questions. There’s a danger in the argument that the press should govern itself more strictly; this could result in the very chill that might deter journalists from fearless reporting in the public interest which the First Amendment was designed (arguably) to protect in the first place. The question of what constitutes ‘legitimate’ pushing of the envelope becomes one of perspective. Gajda’s argument is that we ought to rein in and avoid bursting the free speech bubble. Yet the cases she analyzes also demonstrate the presence of a very strong and articulate counter-argument that advocates pushing the bubble further; or perhaps even that there is no bubble and that freedom of expression and press rights can and should be expanded as far as they will go. A review article by Garrett Epps (also a journalist and law professor) in the Columbia Journalism Review suggests Gajda’s case is over-stated, and the danger is not as great as she suggests (”How the First Amendment applies to Jennifer Lawrence”, 29 October 2014). Either way, it is a thought-provoking conundrum. But one with the potential for significant real world impact.

Other questions also arise. Does critique of new forms of media that ‘push-the-envelope’ and break conventional norms merely represent a fear of new technology and changing social norms on the part of established interests? Perhaps our understanding of privacy has changed forever, and perhaps there will be no reining in of new technology and new privacy-invading initiatives, much as the courts may try. Given the slow pace of legal change, and the intensifying pace of technological change, is the resulting gap between the two even surmountable? Is it even in the public interest for the courts, whose benches are necessarily filled by older generations, to cling to ideals and ideas that may no longer be remotely practicable in a changing world? It may be a disquieting thought, but history suggests that society eventually finds a way to incorporate new technologies into social behaviour; sometimes that requires adapting our social behaviour as much as it does controlling the use of technology.

A further problem is posed by the growing tendency of governments to allow themselves a different standard when it comes to privacy rights over their citizens—on grounds of national security, for instance. If security agencies are monitoring the public with all the new technologies available, and with little to no judicial oversight, it hardly sets an example for other individuals and groups in society, who are told they must constrain their behavior and abide by a different standard. What results is a two-tier society, in which some (government security agencies) are able to use the new privacy-invading methods and technologies freely, while others are not. This is hardly a recipe for a healthy, stable or harmonious society.

Critique of our society’s sometimes self-destructive curiosity and incautious deployment of new technology ought also to be balanced with a consideration of the benefits that can result. Sometimes seemingly radical change can in fact represent an effort to strengthen traditional values by reformulating them. Quasi-journalists may indeed be eroding the traditional role and identity of mainstream journalism. But sometimes those who break away from the pack also represent an effort to improve the style. Some independent and alternative forms of journalism established themselves precisely because they felt mainstream journalism had strayed too far and been co-opted by the interests of capital and other vested powers.

Some advocacy-oriented and independent journalism initiatives in fact self-govern themselves with even more stringent ethical codes than the traditional mainstream press; others experiment with community-based interactive models designed to democratize news reporting in a fashion that is more responsive and accountable to the community than the celebrity journalists who have become increasingly alienated from those they report on. New methods always cause controversy: consider the compelling argument that the appearance of early 20th century ‘muckrakers’—with their fearless and thorough investigative reporting in the name of social reform—were made possible by the envelope-pushing albeit sensationalistic and profit-driven techniques of ‘yellow journalism’ which preceded them.

James Fallows, in his excellent 1996 study Breaking the News, offers critiques that mainstream journalists increasingly consider themselves more elite than working class; a recent shift that raises concerns for accountability. Fallows quotes Charles Peters, an editor with the Washington Monthly: “It is a major problem that journalists have come to identify with the rich or upper middle class rather than with the poor…It has a tremendous effect on what they’re interested in reporting. Because they are identifying up, their first thought is how the situation would look from the top rather than how it would look from the bottom.” Similarly, the perspective of judges is likely to represent the view ‘from the top’; quasi-journalistic sites the view ‘from the bottom’.

To be fair, Gajda, and many others, would probably conclude that a balance somewhere in the middle is what’s needed. Indeed, she devotes her final chapter to recommendations for change, which involve a balance of more clearly articulating the definitions, terms and scope of the concepts at stake (‘journalism’, ‘privacy’, ‘freedom of the press’) and better education on these issues for journalists, the legal establishment, and the broader community (including quasi-journalists). She offers other useful suggestions as well, including the idea that journalists and the legal establishment ought to engage more closely so as to understand each other’s perspectives. Yet the danger identified by Fallows emerges here as well: sometimes familiarity can breed uniformity, and perhaps vigorous yet respectful disagreements, maintaining distance and pushing the envelope, can bolster democratic rights as much as jeopardize them.

Such questions are part of a larger debate, however. Gajda deserves credit for moving that debate forward and framing the important issues and challenges that First Amendment rights, and the free press, will face in the 21st century. This is a book well worth reading, one that ought to give pause for thought to both the legal and journalistic establishments, and hopefully influence how the broader public critically engages with the media.

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