IN 1890, THE Harvard Law Review published a passionate
defense of the right to privacy by Louis D. Brandeis and his law
partner, Samuel Warren. Inasmuch as Brandeis went on to be one of
the great Supreme Court justices, the article remains holy writ for
people who think that the press should be stopped from publishing
essentially private information or punished for doing so.
"The press is overstepping in every direction the obvious
bounds of propriety and of decency," the authors wrote, adding that
"To satisfy a prurient taste the details of sexual relations are
spread broadcast in the columns of daily papers." "Triviality
destroys at once robustness of thought and delicacy of feeling,"
they concluded. "No enthusiasm can flourish, no generous impulse
can survive under its blighting influence."
Sound familiar? For many Americans, those sentiments, set down
more than a century ago, describe perfectly tabloid television, the
supermarket tabloids and, for some, even the mainstream press, such
as the paper you are now reading.
The passages quoted here were noted in passing by Supreme Court
Justice Byron White in an opinion in 1975. A Georgia man had sued a
television station for broadcasting the name of his daughter, who
had been raped and murdered. A state law prohibited the press from
revealing the names of rape victims. Although the TV reporter got
the name from open court records, the father claimed his privacy
had been invaded. Georgia's Supreme court agreed.
But the U.S. Supreme Court reversed the decision. "We are
reluctant to embark on a course that would make public records
generally available to the media but forbid their publication if
offensive to the sensibilities of the supposed reasonable man,"
White wrote for the majority. ". . . The rule would invite timidity
and self-censorship and very likely lead to the suppression of many
items that . . . should be made available to the public."
These divergent views, from Brandeis-Warren and White, preface
this discussion of the widespread efforts now under way to restrict
the press' ability to publish information from public records. The
crime bill recently passed by the Senate would outlaw the release
of personal information from motor vehicle records. A similar
measure is pending in Missouri.
The Missouri General assembly also is considering legislation
to impose onerous fees on the dissemination of state records. Those
willing or able to pay the cost for obtaining open records could do
so; those unable or unwilling would have to do without. In
addition, a bill would make it a felony to publish information from
closed court records - a form of prior restraint presently unknown
anywhere in the United States.
To some extent, such measures are simply attempts to raise
money at the expense of the media and other users of information
that, by definition, the state already has determined belongs to
the public. …