The Privacy Paradox: Introduction
Bedrick, Benjamin, Lerner, Barbara, Whitehead, Bryan, News Media and the Law
Newsgathering and reporting are hampered by an ever-increasing wall of restrictions erected in the name of protecting personal privacy. The
result may be a loss to the public good greater than the protections gained.
The news media in the United States have a long-standing history of revealing things that some people would prefer to keep private.
"The press is overstepping in every direction the obvious bounds of propriety and of decency," complained Samuel Warren and his former law partner Louis Brandeis in 1890. "Gossip is no longer the resource of Warren and Brandeis were hardly the last unhappy subjects of American journalism, nor were they the last to propose that the law be used to restrain the media. Throughout American history, individuals have launched innumerable schemes to require journalists to see them as they see themselves, whether by limiting access to embarrassing information or by punishing the press for publishing. Any such effort is necessarily limited in some way, however, by the simple command of the First Amendment: "Congress shall make no law . . . abridging the freedom of speech, or of the press."
Despite the absence of the term "privacy" in the text of the Constitution itself, the Supreme Court has recognized at least some constitutional protection for a "right to privacy." This sometimes nebulous concept protects the right of people to make their own decisions about birth control, vocation, travel and other issues without government interference. The Constitution also provides explicit protection for certain types of privacy, such as the Fourth Amendment's prohibition of unreasonable searches and seizures. However, the Constitution's prohibitions are directed at state action. Nowhere does it explicitly protect individuals from invasions of privacy committed by private actors, persons and organizations unsupported by the power of the state. Thus, those who wish to manipulate public perception by controlling what others say about them must usually look elsewhere for legal restrictions on what may be learned, spoken or printed.
In recent years, legislatures and courts have been all too willing to impose such restrictions. Newsgathering and reporting, protected though they are by the First Amendment, are hampered by an ever-increasing wall of statutes and court decisions erected in the name of protecting personal privacy. Accordingly, journalists must be aware of new restrictions imposed by these laws and how they operate to limit news coverage.
An exaggerated concern for privacy is also seriously interfering with the ability of the media and the public to gain access to personally identifiable information held by the government, weakening the presumption of openness that forms the foundation of freedom of information laws. …