Part 1, Module 5: Freedom of the Press and the Right to Privacy
Module 5: Freedom of the Press and the Right to Privacy
Background of Freedom of the Press
As Thomas Jefferson said: “Our liberty depends on the freedom of the press, and that cannot be limited without being lost.” When the Bill of Rights was written, of course, the authors were talking about newspapers and magazines. Today, the media landscape includes a staggering number of media platforms. But, while media technology may have changed, the fundamental ideas imbued in freedom of the press have not. The principle remains: unless otherwise restricted for constitutional reasons, anyone can publish (or hit “send” on) anything in any media platform. The word “publish” in this context means any data that is deliberately made available to the public through any media or by any means.
As an adjunct to freedom of speech, freedom of the press allows people to access the information that free speech in public forums creates. Organizations as disparate as the American Civil Liberties Union and the Charles Koch Institute have written of the central place that freedom of the press has in creating a forum of open discussion and in holding government accountable to the people.
And in the words of Supreme Court Justice Hugo Black in the Pentagon Papers case: “In the First Amendment, the Founding Fathers gave the free press the protection it must have to fulfill its essential role in our democracy. The press was to serve the governed, not the governors."
It could be argued that restriction on a free press was one of the primary motivating factors of the American Revolution. Before the thirteen colonies declared independence from Britain, the British government engaged in censorship of any publication critical of its policies or antithetical to the reigning religious views of the time. These restrictions were some of the most basic reasons that the Revolution was fomented in the first place.
The first book known to be banned in the colonies was The Meritorious Price of Our Redemption by William Pynchon, published in 1650. Libel laws against political dissent were promulgated in the colonies in the 1730’s. Publishing opinions against the British government was made libelous. It was also one of the root causes of the Revolution.
In 1734, John Peter Zenger was prosecuted for libel in New York for criticizing the governor. But public sentiment was on the side of press freedom and Zenger was acquitted by a jury.
In the runup to the Revolution, a collection of essays called Cato’s Letters was distributed through the colonies and had a profound influence on the thinking of the Founders. These 144 essays contained many of the ideas that made their way into the Constitution and Bill of Rights, including freedom of the press.
Virginia was the first state to specifically grant freedom to the press in its 1776 Declaration of Rights. Virginian James Madison borrowed from that declaration when writing the First Amendment.
Few rights under the Constitution are absolute, and there are limits on press freedom. For example, while criticism of the government is protected, publishing false information about private citizens is not.
The term “defamation” refers to spoken or written words that “are injurious to others.” The term given to written defamation (or defamation widely publicized by oral broadcast) is “libel” and the term given to spoken defamation is “slander.” To constitute defamation, a statement must be false and must cause harm — generally by hurting a person’s reputation.
Truth is always a defense to a defamation lawsuit. Only lies can be defamatory.
Defamation laws date back at least to the Norman conquest of 1066. The remedy for defamation at that time was an apology. Over time, these laws evolved through common law courts and all defamation laws are state laws (there are no federal defamation laws). Defamation laws apply to all publications, from newspapers and magazines to blogs and tweets to oral statements.
Defamation generally consists of four elements:
1. The defendant made a statement of fact to one or more other people;
2. The statement was about the plaintiff;
3. The statement was defamatory and false; and
4. The statement injured the plaintiff’s reputation and/or caused economic damages.
Defamation laws applied to all people and publication under all circumstances until 1964. Until then, defamation was not held to be protected speech under the First Amendment.
New York Times v. Sullivan and subsequent cases changed the field of defamation by setting a new standard for defamation cases brought by public officials. Sullivan was the police commissioner of Montgomery, Alabama. An ad in the New York Times painted the city police in a false light, and Sullivan sued the Times and won at trial and on appeal.
However, the Supreme Court overturned the Alabama case, stating that these state common law defamation torts were “constitutionally deficient for failure to provide the safeguards for freedom of speech and of the press that are required by the First and Fourteenth Amendments in a libel action brought by a public official against critics of his official conduct.”
The case set a new standard for criticism of a public official: that of “actual malice.” Falsity was no longer good enough grounds for public figures to sue newspapers. Actual malice was required, and this was defined by the Court as knowledge of the falsity of the statement or that the statement was made with “reckless disregard” for the truth.
In 1967, two cases expanded the actual malice standard from statements targeting “public officials” to “public figures,” which includes famous people. To determine who is a public figure, the Court created three categories of public figures:
1. An “all-purpose” public figure whose presence is ubiquitous (such as a movie star or a professional athlete);
2. A “voluntary, limited purpose” public figure who decides to thrust herself into the limelight or public discussion (such as, perhaps, “Joe the Plumber” who found his 15 minutes of fame during the 2008 presidential election); and
3. An “involuntary” public figure who is only in the public eye because of the defamatory statements themselves.
The first two categories were considered public figures, but the last was not, and plaintiffs could sue under traditional defamation standards.
What constitutes actual malice in a given case is a matter for the trier of fact to determine.
2017 parties to defamation cases included Melania Trump (in a British case, which was settled), Sarah Palin (lost), ABC News (lost and then settled); Rolling Stone Magazine (lost and settled); and a $247 million New Hampshire case that was the largest in state history.
Protecting Confidential News Sources
Journalists often use confidential sources to write their stories. But they do so at their own peril in many cases. Journalists have no specific constitutional right to protect confidential news sources from judges or grand juries, and numerous reporters have gone to jail to protect their sources.
In Branzburg v. Hayes, the Court held in 1972 that reporters did not have the right to use the First Amendment as a shield against having to testify in grand jury proceedings and to name sources. Still, the language of the Branzburg decision indicates that there may be some reporter testimony that could be protected and that to force testimony, the government must “convincingly show a substantial relation between the information sought and a subject of overriding and compelling state interest.”
But Branzburg remains the only Supreme Court case that has reached this issue. Because of that, various federal and state court decisions and state laws have created an inconsistent area of law.
Many courts cite Branzburg to find that there is some kind of “qualified” First Amendment privilege to protect sources, and have developed tests for such a right that uses a four-pronged test to determine if a source should be protected in court:
- the relevancy of the information in question,
- whether there is a compelling interest in obtaining it,
- whether there is an alternative source for it, and
- whether a reporter promised confidentiality.
Each case is decided individually, and one judge can decide in ways that are markedly different from those of another judge.
Some states have passed “shield laws” protecting journalists and their sources. Most of them are limited in scope. For instance, freelance writers are generally not protected. The Department of Justice requires the Attorney General to sign off on any subpoena given to a reporter. There have been a few attempts in Congress to create a national shield law, but none have been successful.
The Right to Privacy
There is no right to privacy per se written into the First Amendment or any part of the Constitution. To the extent that a right of privacy exists, it is a right that has been created by various Supreme Court decisions, other court decisions or state law. Various constitutional theorists in the 19th and 20th centuries wrote treatises calling for the creation of a right to privacy. In particular was an 1890 article in the Harvard Law Review by Louis Brandeis that he wrote after experiencing a Peeping Tom at his house.
The right to privacy made its first appearance in Supreme Court jurisprudence in the 1965 Supreme Court case Griswold v. Connecticut. A case about contraception, the Griswold case gave people autonomy over their bodies that led to the protection of abortion less than 10 years later in Roe v. Wade. Having established this right, the Court then began to expand it, or at least to clarify it in other contexts.
Shortly after the Griswold decision, the Court began to make distinctions between the right to privacy in public and the right to privacy in one’s own home. There is, of course, a greater right to privacy in one’s home than in public. Two cases often read together to establish this principal are Stanley v. Georgia and In Stanley, the Court held that, even though pornography was not protected by the First Amendment, the defendant could nonetheless not be arrested for viewing it in his own home because he had an “expectation of privacy” in his home. The Pacifica case (which was the George Carlin Seven Dirty Words case) held that the FCC regulating what a station could broadcast dealt with material that was out in public, even though it was listened to in a home. Therefore, that content could be regulated.
That expectation of privacy can extend to vehicles. However, this expectation comes under Fourth, not First Amendment, protections. As it currently stands, vehicle owners have a right to privacy in their vehicles when parked in their own driveways but that right is greatly reduced when they are parked elsewhere.
At the same time, this right to privacy can clearly clash with First Amendment rights. In one landmark case, the Court held in 1971 that freedom of speech outweighed privacy concerns of people in a public space. In that case, the Court ruled that displaying an obscene word on a jacket did not sufficiently disturb other people’s privacy rights to outweigh rights to freedom of expression.
Invasion of Privacy is a very old tort that complements defamation. Where defamation covers published lies, invasion of privacy cases can cover published truths. There are several varieties of privacy torts under various state statutes: physical intrusion into a person’s private life (such as hiding a camera in another person’s bedroom), public disclosure of private or confidential facts (such as private medical information), appropriation of another’s name or image for commercial purposes and publishing technically true information that puts a person in a false light.
When newspapers are involved, that tort has to be balanced against First Amendment rights. The issue here is to what extent people have a right to live their lives uninterrupted by media scrutiny. Note that publication of information otherwise obtainable by the public, such as court records, is protected, and can be done by anyone.
For invasion of privacy claims based on false light brought by public figures the “actual malice” standard set forth in New York Times v. Sullivan must be satisfied. For example, the standard was applied to an intentional infliction of emotional distress case brought against Hustler Magazine by Rev. Jerry Falwell. There, the Court found that Falwell was a public figure, and that actual malice was not proved against the magazine when it published a satirical ad.
Another noteworthy case arising from the publication of private facts was Hulk Hogan’s case against Gawker Media that destroyed the defendant company. Hogan won by proving that the videos (a sex tape) in question were true, but that they were not newsworthy and that they were offensive. Courts have held in various cases that writing about such tapes was not an invasion of privacy, but that actually showing them was.
The Supreme Court has also ruled that “ride-alongs” where the press accompany police officers on arrests violate privacy rights, but there are still a number of television shows that use the technique.
As we all know, technology is getting more and more intrusive by the day. Future courts will be wrestling with Internet-based image appropriation, drone journalism, “war driving,” hacking and all the rest. Privacy laws will be at the forefront of this invasion of our lives by technology.
Thank you for participating in LawShelf’s video-course on the First Amendment’s freedom of speech and expression. We hope this course has helped you understand the scope of the protections of the First Amendment and how they have been applied. We encourage you to take advantage of other LawShelf video-courses as well and we welcome your questions or feedback.
 Letter from Thomas Jefferson to James Currie, Jan. 28, 1786.
 New York Times Co. v. United States, 403 U.S. 713 (1971).
 Black’s Law Dictionary (“Libel”).
 e.g. , 315 U.S. 568 (1942), the Court spoke of categories of speech “the prevention and punishment of which has never been thought to raise any Constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or ‘fighting’ words — those which by their very utterance inflict injury or tend to incite an immediate breach of the peace.”
 New York Times v. Sullivan, 376 U.S. 254 (1964).
 Curtis Publishing Co. v. Butts, 388 U.S. 130 (1967); Associated Press v. Walker, 389 U.S. 28 (1967).
 Chief Justice Earl Warren wrote for the Court: “Increasingly in this country, the distinctions between governmental and private sectors are blurred” and that many people who are not public officials are “intimately involved in the resolution of important public questions” and “often play a role in ordering society.” Because of that, anyone in the public eye should be held to the same standard.
 Gertz v. Robert Welch, 418 U.S. 323 (1974).
 Although a plea for punitive damages still needs to prove actual malice.
 Branzburg v. Hayes, 408 U.S. 655 (1972).
 Griswold v. Connecticut, 381 U.S. 479 (1965).
 Roe v. Wade, 410 U.S. 113 (1973).
 Stanley v, Georgia, 397 U.S. 557 (1969).
 FCC v. Pacifica Found., 438 U.S. 726 (1978).
 Freedom from a warrantless search.
 Collins v. Virginia, 138 S. Ct. 1663 U.S. (2018).
 Cohen v. California, 403 U.S. 15 (1971).
 Cox Broadcasting Corp. v. Cohn, 420 U.S. 469 (1975).
 Time Inc. v. Hill, 385 U.S. 374 (1967).
 Hustler Magazine Inc. v. Falwell, 485 U.S. 46 (1988).
 Gawker Media, LLC v. Bollea, 129 So. 3d. 1196 (Fla. DCA 2014); 170 So. 3d. 125 (2015).
 Wilson v. Layne, 526 U.S. 603 (1999).