Celebrities, politicians and other soughtafter sources of news would appear, by their routine claims that members of the media have violated their privacy, to understand precisely what is private and what is public, or newsworthy, information.
Journalists, however, often possess different notions of privacy and newsworthiness, and know that the question is more complicated. Reporting news stories in a way that serves and informs the public will often entail publicizing facts or displaying images that will embarrass or anger someone.
To make privacy matters even more difficult for journalists, courts constantly redefine what is private based upon interpretations of the elusive legal standard of a "reasonable expectation of privacy." For example, the California Supreme Court recently introduced into the equation the question of whether the claimed intruder is a member of the news media - thus allowing privacy claims based upon the fact that an individual expected not to be observed by a member of the news media, rather than the fact that the individual expected not to be observed in general. See Sanders v. American Broadcasting Cos., Inc., 978 P.2 d 67 (Cal. 1999).
The U.S. Supreme Court's scolding of the media in the 1999 "ride along" cases for a perceived inattention to the privacy rights of the people featured in the news most likely reflects the current attitude of many judges and lawmakers and, thus, underscores the importance for journalists to be aware of general privacy principles.
In the context of determining that law enforcement officers who permit the news media to accompany them across the threshold of a home while serving a search warrant violate the Fourth Amendment's prohibitions against unreasonable searches and seizures, the Supreme Court expressed disdain for the media's arguments in favor of access to information related to the execution of warrants, but alleged by the subjects of those warrants to be private.
Writing for the Court, Chief Justice William Rehnquist said that the presence of the news media did not further the objectives of an authorized intrusion by law enforcement officers into a home to execute a search or arrest warrant. The ostensible benefits of media presence - accurately informing the public about law enforcement efforts to control crime, minimizing police abuses, and protecting officers from violence by the subjects of searches and arrests by recording those events - were outweighed by the privacy interest of homeowners.
The assertion that media presence during the execution of a search warrant can serve a legitimate law enforcement purpose "ignores the importance of the right of residential privacy at the core of the Fourth Amendment," the Court held.
The California Supreme Court has taken a similar position on media presence and privacy and in two cases decided in 1998 and 1999, allowed the subjects of broadcast news pieces to hinge the parameters of their expected privacy on the nuances and gradations of their surroundings.
In June 1998, California's highest court concluded that two people injured in a car accident could sue for invasion of privacy based on the fact that a cameraman recorded emergency aid given in a rescue helicopter. The accident victims, the court held, could claim a reasonable expectation of privacy in the rescue helicopter, even if they did not expect their conversations in the helicopter would notbe overheard and could not claim a right to privacy at the accident scene prior to being moved to the helicopter. See Shulman v. Group W Productions, 955 P.2d 469 (Cal. 1998).
A year later, the California Supreme Court held that even an employee who knows a conversation in an open office space will be overheard by coworkers can pursue an invasion of privacy claim if that conversation is recorded by a reporter's hidden camera. The case involved "telepsychic" hotline workers who were secretly videotaped by an undercover reporter, and writing for the court,justice Kathryn Mickle Werdegar rejected the notion of privacy as an "all-or-nothing" concept and described an "expectation of limited privacy. …