University of Buffalo law professor Samantha Barbas discusses the conflict between the individual right to privacy and freedom of the press and public interest, and the history of legal thinking regarding that conflict
For centuries, and in particular during modern American history, a tension has existed between the right to privacy and the right of the press. This lesson explores the history of that tension, including some of the relevant landmark Supreme Court cases and the photography of celebrities.
Preliminary Discussion Questions/Writing Prompts:
Which of these quotes do you more strongly agree with? Why?:
The Supreme Court has consistently held that the press has a high degree of protection when reporting on “matters of public interest” What do you think defines a “public interest”? Why?
Do you think the rise of social media changes the right to privacy? (i.e. If people are voluntarily sharing information about themselves online, can they really still claim that they have privacy rights with regard to that information or related information?) Explain your position!
What privacy rights do you think should exist for public figures? Why? When do you think tensions first began to arise between the paparazzi and celebrities?
Privacy and the Press: Legal History of the Conflict
Video Clip 2: The Right to Know (2:41)
Video Clip 3: Landmark Privacy/Press Court Cases (5:18)
Privacy and the Press, Celebrity Style: It’s Not New News (1998 Flashback)
Video Clip 4: 1998 House Judiciary Committee hearing on the privacy rights of public figures (3:38)
Video Clip 5: Michael J. Fox testifies about the impact of celebrity photographers on his life and his family (9:08; can be truncated if time constraints require)
Discussion Questions/Writing Prompts:
“Translate” the following quote (reword it in modern, non-lawyerly language), indicate what you think it means, and assert whether or not you agree with it and why “Those who won our independence believed . . . that public discussion is a political duty, and that this should be a fundamental principle of the American government. They recognized the risks to which all human institutions are subject. But they knew that order cannot be secured merely through fear of punishment for its infraction; that it is hazardous to discourage thought, hope and imagination; that fear breeds repression; that repression breeds hate; that hate menaces stable government; that the path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies, and that the fitting remedy for evil counsels is good ones. Believing in the power of reason as applied through public discussion, they eschewed silence coerced by law -- the argument of force in its worst form. Recognizing the occasional tyrannies of governing majorities, they amended the Constitution so that free speech and assembly should be guaranteed.” - Mr. Justice Brandeis, concurring opinion in Whitney v. California, 274 U.S. 357
Generally speaking, public officials are granted legal protection for statements made in the course of their duties. The Supreme Court asserted in New York Times v. Sullivan that, in the interest of fairness, an equal protection needed to be given for those criticizing that official conduct (excerpt below). Do you agree with this conclusion? Why or why not? "Such a privilege for criticism of official conduct [n21] is appropriately analogous to the protection accorded a public official when he is sued for libel by a private citizen. In Barr v. Matteo, 360 U.S. 564, 575, this Court held the utterance of a federal official to be absolutely privileged if made "within the outer perimeter" of his duties. The States accord the same immunity to statements of their highest officers, although some differentiate their lesser officials and qualify the privilege they enjoy. [n22] But all hold that all officials are protected unless actual malice can be proved. The reason for the official privilege is said to be that the threat of damage suits would otherwise "inhibit the fearless, vigorous, and effective administration of policies of government" and "dampen the ardor of all but the most resolute, or the most irresponsible, in the unflinching discharge of their duties." Barr v. Matteo, supra, 360 U.S. at 571. Analogous considerations support the privilege for the citizen-critic of government. It is as much his duty to criticize as it is the official's duty to administer. See Whitney v. California, 274 U.S. 357, 375 (concurring opinion of Mr. Justice Brandeis), quoted supra, p. 270. As Madison said, see supra p. 275, "the censorial power is in the people over the Government, and not in the Government over the people." It would give public servants an unjustified preference over the public they serve, if critics of official conduct did not have a fair equivalent of the immunity granted to the officials themselves.
Extension Activity Options:
Press on the Press: Write or tape an editorial piece detailing what you believe to be the appropriate ethical limits on press use of information about either private citizens or elected officials. Your editorial should acknowledge the constitutional limits before moving on to your desired ethical limitations.
Shielding Celebs from Privacy Invasion: Design and create a print ad for a Captain America-style shield that would protect public figures from intrusion. Your ad should include the features of the shield (what will it do to provide protection) and a tag line that could be used to market it.
Press Play-list: Create a playlist related to the tension between privacy and the press. Your playlist can be directed toward either side of the debate, or can reflect both sides. Include both your song list and an explanation of why you chose the songs therein.
Privacy Poster Child: Take an iconic movie poster and repurpose it to communicate the tension between privacy and the press.