Journalistic freedom and privacy: a case of relative compatibility.

• Author: Lewis, Anthony
• Position: The First Annual Symposium of the Masterman Institute on the First Amendment and the Fourth Estate

it is a privilege for me to give the first Masterman institute lecture. Edward Masterman has been an inspiring leader of the bar. He and his wife, Sydell, funded the institute to explore the freedom of the press and its limits. i think that is a wise combination of subjects. The press often sounds as though there are no limits on what it can do--as though all its problems can be solved by crying, "First Amendment." But that is not true and never has been. In my judgment, the press will be strengthened in its great functions if it understands that limits--responsibilities--go along with its freedom.

My subject today is privacy and how that value intersects with and limits the vital interest of press freedom. I shall begin by describing an actual series of events, asking you to consider where lines should be drawn. On June 24, 1990, Mrs. Ruth Shulman was driving on a California freeway when her car was hit by another and rolled down an embankment. Mrs. Shulman was gravely injured and was trapped in the car. A rescue helicopter was called to the scene. (1)

Technicians got into the car, removed Mrs. Shulman, and put her in the helicopter. As they flew toward a hospital, and before that as she was rescued from the car, a nurse talked with her and encouraged her to persist in the face of great pain. Unknown to Mrs. Shulman, the nurse was wearing a microphone and recorded her words and groans. Someone else in the helicopter filmed her with a video camera, also without Mrs. Shulman's knowledge. Bits of the sound and video were broadcast on a television program. (2)

Mrs. Shulman sued the makers of the program for invasion of her privacy. (3) As an emotional matter, there can be no doubt that her privacy was invaded and that she felt injured by the invasion. But legally the result was not so sure. That is because the various kinds of injuries to privacy that are covered by privacy law have not fared well in the courts in recent years. Judges have been wary of letting the value of privacy stand in the way of the freedom of the press, whose protection by the First Amendment has grown greatly because of broad and, in my judgment, wise judicial decisions.

Emboldened by its First Amendment gains, the press and its lawyers have argued that it should never have to pay civil damages for what it publishes so long as it is true. No matter how painful a public disclosure of private life may be, if the matter published is true, the damage to the interest of privacy cannot be compensated. That is the claim.

The conflict between privacy and press freedom was resolved in the Shulman case by a divided California Supreme Court. The majority, in an opinion by Justice Kathryn M. Werdegar, decided that Mrs. Shulman could maintain her lawsuit. (4) What the broadcasters had done, she held, had intruded into a zone where Mrs. Shulman had a reasonable expectation of privacy. Justice Werdegar recognized that government cannot generally dictate what the press may or may not do, but "neither may the media play tyrant to the people by unlawfully spying on them in the name of news-gathering." (5) Justice Werdegar went on to say:

A jury could reasonably believe that fundamental respect for human dignity requires the patients' anxious journey be taken only with those whose care is solely for them and out of sight of prying eyes .... A reasonable jury could find that defendants, in placing a microphone on an emergency treatment nurse and recording her conversation with a distressed, disoriented and severely injured patient, without the patient's knowledge or consent, acted with highly offensive disrespect for the patient's personal privacy.... (6) In many cases judges have held that the First Amendment protects the rights of the press to cover newsworthy events. (7) The dissenting judges in the California court wrote that this principle should have protected these broadcasters. (8) The majority, however, said the principle had to yield when the method of coverage was "highly offensive to a reasonable person." (9)

As we look at those facts now, how do we as citizens feel about them? Shouldn't the press be free to cover newsworthy events no matter how repellent its methods? After all, the heroic tradition of reporters was created in plays like The Front Page (10) where the reporter conceals an escaped murderer in a rolltop desk to get an exclusive story. or do we think that the press must pay a certain respect, as Justice Werdegar said, to human dignity?

My vote is for human dignity--which is to say, respect for privacy when it is subject to brutal intrusion. And I think we can say that the broadcasters in the Shulman case suspected that a jury would take that view. After the California Supreme Court decision, the defendant broadcasters could have insisted on a jury trial, but they settled the case, paying Mrs. Shulman an unstated amount in damages. (11) My guess is that they thought a jury would not be happy about the tactics that were used.

Nowadays a frequent cause of conflict between claims of freedom and privacy is a decision by a newspaper or broadcaster to name an individual as a likely suspect in a crime. The crime may well be a grave one, and the publication may well go beyond pointing to a suspect to virtually convicting him of the crime.

That was the situation involving Nicholas Kristof, a New York Times columnist and a one-time colleague of mine. In the wake of the terrorist attacks of September 11, 2001, envelopes containing anthrax powder were mailed to prominent individuals. The results were not just injury and death, but widespread panic. The Federal Bureau of Investigation began a high-powered inquiry, but it seemed to get nowhere. In the spring and summer of 2002, Kristof wrote a series of columns criticizing the F.B.I. investigation. (12) He said the agency had failed to explore evidence about a scientist he called "Mr. Z." Investigators raided the home of a scientist named Dr. Steven Hatfill, tipping off television networks so that cameras would be there. Dr. Hatfill then said that he fit the description of Mr. Z but had nothing to do with the anthrax mailings. Dr. Hatfill became the subject of...