Protecting the press from privacy.

• Author: Fuson, John H.

INTRODUCTION: HAS THE PROMISE OF THE FREE PRESS FAILED?

"And that's the way it is...."

--Walter Cronkite(1)

Walter Cronkite's direct yet comforting closing to the evening news evoked the idyllic American image of journalism: the facts, plain and simple, honestly presented, without spin or dirt.(2) The romanticized promise of First Amendment protections for a free press(3)--that dutiful reporters would keep citizens informed about important public matters so that they might exercise a sound and reasonable check on the powers of government at the ballot box(4)--was captured in that simple phrase.(5) The confidence Cronkite stirred,(6) however, is all but absent from current public sentiment toward the press.(7) Instead of enjoying the public's trust, the press is the target of deep cynicism.(8) Far from heroic, it is widely perceived as dangerous, often obnoxious, and most always unprincipled.(9)

Popular loathing of the press may derive from disgust with the tactics of the vituperative talking heads who fill news outlets--in print, on radio or television, and over the Internet--with what consumers perceive as angry words, hair-splitting arguments, and above all, a lot of noise.(10) "Journalism," as the public popularly believes Cronkite to have practiced it,(11) seemingly has been replaced with a new, sleazy, and vitriolic form of entertainment.(12) Stories that now pass for "news" appear tilted toward topics that previously would have been presented, if at all, only in brown paper wrappers.

This perception grows as the major networks fill prime-time programming slots with newsmagazines like 20/20, Dateline, 48 Hours, and 60 Minutes II,(13) each with its own voracious appetite for late-breaking (and ratings-grabbing) headlines. Similarly, daytime soap operas have given way to talk show hosts like Leeza Gibbons, Montel Williams, Jenny Jones, and Jerry Springer,(14) who pose as journalists(15) while brazenly exploring the sultry backwaters of popular culture.(16) Even such repositories of traditional journalistic values as the New York Times and the Washington Post have become preoccupied with the lurid details of the President's private life.(17) Thus, media are not limited to fictional dramas to satisfy the public's taste for sleaze. The news offers similar plot lines with an added twist of enticement: the stories and people are real.

Taken together, popular perceptions about the direction of journalism leave many with the state of mind of legendary anchorman Howard Beale in the movie Network who cried out, "I'm as mad as hell and I'm not going to take it anymore."(18) Americans generally, and perhaps pathologically, turn to the law whenever institutions irritate them, whether by brewing the coffee too hot,(19) not finishing the paint with a professional edge,(20) or leaving passengers locked in airplane cabins when weather socks in an airport with insufficient gates.(21) Unlike McDonald's, BMW, and Northwest Airlines, however, the press's exposure to legal rules is sharply restricted by the First Amendment. Indeed, in the 1960s and 70s, the courts responded to legal assaults against the press by reinforcing the barriers to the classic remedies for obstreperous journalism: libel judgments,(22) prior restraints,(23) and citations for contempt.(24)

Seeking ways around First Amendment restrictions, irritated plaintiffs and irritable juries have sought out other causes of action, both old and new, from breach of contract to intentional infliction of emotional distress.(25) Fed by a century of academic hypothesizing,(26) as well as a trickle of actual lawsuits dating back to the early 1900s,(27) no area is more ripe for the entry of the media-scourges' Trojan horses than the various renditions of the purported privacy torts.

The desire to protect the personal privacy of citizens from a prying government is understandable, indeed constitutionally required, as the Fourth Amendment makes clear.(28) Protection of personal privacy from private individuals or institutions bent on using personal information to perpetrate fraud or blackmail also is laudable. Using privacy protection as a shield to keep secrets from the public or as a club to suppress the truth about newsworthy events, however, is another matter. Appropriate in some contexts, perhaps,(29) but unless closely tethered, it is a dangerous weapon against the democratic values and individual rights embodied in the First Amendment. Keeping the tether tight is not typically a great concern, however, for those who would use the privacy torts to punish or get even with rascally members of the press. Given journalists' low standing in public opinion polls,(30) attacks on the press are far more likely to draw cheers than jeers.

We live in a society that already enjoys broad privacy protections. Laws exist that protect against harassment and trespass as well as defamatory speech.(31) Furthermore, we often live in secluded suburbs with large yards separating us from our neighbors.(32) We work in vast cities through which we move with relative anonymity.(33) We commute in the seclusion of our personal automobiles.(34) We communicate via e-mail using imaginary screen names,(35) and increasingly, we shop over the Internet from the solitude of our homes.(36) Indeed, one writer has observed that "[f]ar from disappearing, [the right to be let alone is] exploding.... [W]e're flat-out drowning in privacy."(37)

This Comment explores recent developments in California that illustrate the problems pervading efforts to use tort law to expand privacy and limit access to personal information.(38) First, the California Supreme Court handed down decisions in Shulman v. Group W Productions, Inc.(39) and Sanders v. American Broadcasting Co.(40) broadening the scope of civil claims for intrusion. The media, the court held, may not "play tyrant to the people by unlawfully spying on them in the name of newsgathering."(41) Second, the California legislature enacted a new "paparazzi law," Senate Bill 262,(42) which amended the state's privacy protection statute.(43) In the words of its author, the bill is aimed at deterring "`paparazzi-like' behavior by photographers, reporters, and the press."(44)

This Comment does not seek to diminish the obvious importance of privacy in all its various permutations. We must not, however, use it as an all-purpose weapon to silence news reporting we find distasteful.(45) Regrettably, the court's decisions in Shulman and Sanders and the legislature's actions against paparazzi bring us a little bit closer to that result.

Theodore Roosevelt once noted that "It]he men with the muckrake are often indispensable to the well-being of society, but only if they know when to stop raking the muck."(46) As this Comment seeks to explain, it is impossible to draw a universal line in the sand--or the muck--that protects privacy entirely without unduly compromising other social values.

1. THE SHULMAN DECISION

   Shulman v. Group W Productions, Inc. centers on a broadcast segment from On Scene: Emergency Response, a television program produced by the defendant that follows the real-life experiences of emergency rescue teams.(47) In June 1990, Mercy Air, an operator of rescue helicopters, dispatched a helicopter to the scene of a serious automobile accident involving the plaintiffs, Ruth Shulman and her son.(48) The helicopter carried a pilot, a medic, a flight nurse, Laura Carnahan, who wore a small microphone, and a video camera operator, Joel Cooke, who worked for the defendant.(49)

   Carnahan treated Shulman at the accident scene before transporting her to a hospital with her son on the Mercy Air helicopter.(50) She suffered severe injuries that left her paralyzed from the waist down.(51) Cooke shot extensive footage at the scene and on the flight back to the hospital.(52) The microphone recorded Carnahan's conversations with the pilot, with other emergency personnel at the scene, and with Shulman.(53) The producers then compiled the audio and video footage to create a nine-minute segment for television broadcast.(54) The following extended description of the program is included to illustrate both the newsworthiness of the material and the privacy concerns that it raised.

   The segment is an intense, tightly edited piece. It begins with the dispatch and flight of the helicopter to the scene.(55) The viewer first learns about the accident and potential victims from the narrator who reports that "a family car has flown off the freeway and landed upsidedown, trapping a mother and her son."(56)

   At the scene, Carnahan hears a report from an emergency medical technician, who describes the situation and instructs Carnahan to extricate Shulman and her son from the car.(57) Carnahan then discusses the situation with several firefighters.(58) Gasoline has leaked from the car and she wants to assure the safety of others at the site.(59)

   Three minutes into the program, the viewer hears Carnahan speaking to Shulman for the first time.

   Carnahan: "Can you speak to me, ma'am?"

   Shulman: "I can talk."

   Carnahan: "Can you talk? Good girl. Can you--Tell me how old you are, ma'am."(60)

   Carnahan investigates the situation under the car.

   Shulman: "I'm old."

   Carnahan: "How old?"

   Shulman: "Forty-seven."

   Carnahan: "Forty-seven? Well, it's all relative--you're not that old."(61)

   Carnahan then asks Shulman what year it is, and it becomes apparent that Shulman is disoriented and unable to respond.(62)

   The firefighters now use a tool called the "Jaws of Life" to extricate Shulman and her son from the car. The narrator explains that Carnahan will climb into and under the car, which is leaking gasoline, in order to reach her patient.(63) A brief shot of Shulman's bloody knee protruding from the car is seen while the viewer hears Carnahan and the medic struggle to keep contact with the patient.(64) The narrator explains the danger: there is no way to access the car battery and thus the electrical...