Revisiting the Voyeurism Value in the First Amendment: from the Sexually Sordid to the Details of Death

• Publication year: 2003

SEATTLE UNIVERSITY LAW REVIEWVolume 27, No. 3WINTER 2004

Revisiting the Voyeurism Value in the First Amendment: From the Sexually Sordid to the Details of Death

Clay Calvert(fn*)

Introduction

In 1999, the author of this article first proposed for scholarly critique and criticism a new rationale for protecting freedom of expression that seemed to capture the tell-all, show-all spirit of the "post-modern, mediated visual age of television, the Internet and the hidden camera."(fn1) It was dubbed the "voyeurism value"(fn2) and was premised on the idea that "[t]he First Amendment(fn3) increasingly safeguards, or is called upon to safeguard, our right to peer and to gaze into places from which we are typically forbidden, and to facilitate our ability to see and to hear the innermost details of others' lives without fear of legal repercussion."(fn4)

The concept of a voyeurism value in First Amendment jurisprudence soon found its way into a leading constitutional law casebook(fn5) and more than a dozen different law journal articles.(fn6) And in the five years that now have passed since the proposal of a voyeurism value, the United States has witnessed an explosion in so-called reality television shows that pander to our voyeuristic tendencies.(fn7) The proliferation of those shows has "exacerbated the notion that everyone has something to come forward to tell"(fn8) and eroded notions of privacy.(fn9) And when there is no expectation of privacy, the result is legal voyeurism.(fn10) As the author wrote in 1999, an "individual's loss of privacy, of course, is the voyeur's gain"(fn11) and "[t]he question of the moment, of course, is whether the First Amendment freedom of the press will protect our desire to watch against claims of invasion of privacy and other intrusive newsgathering practices."(fn12)

This article takes a fresh look at that question and the fundamental tension between maintaining privacy and accelerating voyeurism, while addressing the notions of geographic privacy and newsworthiness that are critical in this conflict. In particular, this article surveys five specific and cutting-edge areas in the law that demonstrate the conflict between privacy and voyeurism and the legal system's struggles to reconcile the two concepts. Each of these is an area that has developed since the proposal of the voyeurism value in 1999. Ultimately and unfortunately, the clear pattern that is revealed across these areas is that of inconsistency-there is still ferment in the field. We are only minimally closer to resolving the legal issues that divide privacy and voyeurism.

Following this Introduction, Part I of this article examines the stepped-up efforts in 2003 of legislative bodies, including the U.S. Congress, to control the burgeoning phenomenon of hidden-camera video voyeurism(fn13) that often involves the prurient taping of women in various stages of undress, and in under-the-dress shots.(fn14) This part also critiques recent judicial opinions that have struck down some of these efforts, thus allowing video voyeurism to proliferate. Part II then turns from sex to death to explore the tension that has developed since the death of NASCAR driver Dale Earnhardt in February 2001: between keeping private autopsy photographs private and giving the press access to those images to learn more about what might have caused the deaths in question.(fn15) The Earnhardt death now has left a legacy of legislation and litigation, as well as a voyeuristic controversy that did not exist when the voyeurism value was proposed in 1999. Next, Part III turns to another area that demonstrates the tension between voyeuristic glimpses of death and the right to privacy: namely, the efforts of The New York Times to obtain what might be called impending death tapes-emergency 911 telephone calls made on September 11, 2001 by victims of the terrorist attacks on the World Trade Center.(fn16) Again, this is a new controversy taking place since the voyeurism value was initially articulated. Part IV shifts to a series of cases pertaining to the ability of the media-and, by extension, the general public-to obtain the sordid and private details about divorces and marital dissolutions involving high-profile figures.(fn17) Part V examines and analyzes the controversial practice of "perp walks" in which criminal defendants are publicly paraded by law enforcement officials before the voyeuristic lens of the media seeking to get a glimpse of the alleged perpetrators.(fn18)

Finally, this article features a discussion in Part VI, which attempts to synthesize these five areas, each of which highlights the dissonance between privacy and the voyeurism value.(fn19) In the end, the legal efforts to constrain voyeurism have proven only partially successful. As our appetite for voyeurism continues to grow-witness, for instance, that "the news media pitch its most elaborate tents around accused child molester Michael Jackson"(fn20)-the problems persist and continue to plague the legal system. One critical concept that needs to be re-examined, as the Discussion points out, is newsworthiness. It is this concept, concomitant with the concept of the public's right to know, that justifies voyeuristic activities when it can be said to exist; conversely, when the images or information in question are not newsworthy, privacy rights can trump voyeurism. A second key issue that must be addressed is the geographic notion of privacy that now hinders legal efforts to restrict the forms of sexual voyeurism discussed in Part I. Without a revised conception of privacy and, in particular, the setting in which individuals have legitimate and objectively reasonable expectations of privacy, sexually deviant voyeurism will continue to thrive.

I. Video Voyeurism and the Upskirting(fn21) of Privacy

When a made-for-television movie called Video Voyeur: The Susan Wilson Story debuted on the Lifetime cable channel, it brought to public attention one of the most vexing problems at the intersection of voyeurism and privacy-how to control the conduct of technology savvy Peeping Toms who prey on unsuspecting women.(fn22) The movie, which garnered a large audience(fn23) and starred Angie Harmon,(fn24) told the story of Susan Wilson, who was victimized by a neighbor in Monroe, Louisiana, who had installed surveillance equipment in the attic over her bedroom and bathroom.(fn25)

The problem for Wilson was that there was no crime, at that time, of secret videotaping in Louisiana.(fn26) Indeed, "[m]any wiretapping or eavesdropping laws regulate audiotaping or recording but are silent as to videotaping. If sound is not recorded when a videotape is made, then prosecutors must seek other remedies to punish video voyeurs."(fn27) It is not surprising, then, that "law enforcement officials have not been as successful in prosecuting these high tech video voyeurs. Numerous video voyeurs escape prosecution because the laws did not and some still do not address the crimes."(fn28)

While states such as Louisiana, Susan Wilson's home and the first state to make video voyeurism a felony,(fn29) have recently adopted video voyeurism laws,(fn30) others have not, thus allowing voyeurism to thrive and privacy to erode. The consequences for the victims of video voyeurism, in turn, are tragic. Consider, for instance, a July 2003 opinion by an appellate court in New Jersey that vacated the criminal conviction of a man who installed a hidden video camera in the bathroom of his residence in order, by his own admission, to see "naked" two female guests.(fn31) The defendant, Stephen Burke, was charged under a state statute which provides that:A person commits a crime of the fourth degree if, knowing that he is not licensed or privileged to do so, he peers into a window or other opening of a dwelling or other structure adapted for overnight accommodations for the purpose of invading the privacy of another person and under circumstances in which a reasonable person in the dwelling or other structure would not expect to be observed.(fn32)

The three-member appellate panel focused on the term "peers into" and concluded that the statute requires the peering "be from a location outside,"(fn33) and that it "requires an intrusion into the dwelling from a vantage point outside that dwelling."(fn34) The court thus concluded that "[t]he type of video voyeuristic surveillance that occurred here simply was not criminalized by the language or intent of this statute."(fn35) The appellate court also opined that it was not its role to stretch the meaning of the statute to apply to modern-day video voyeurism, writing that "[w]hether video voyeurism that surreptitiously occurs from inside a dwelling should be criminalized is a matter for the Legislature to address, not this court."(fn36)

The opinion, not surprisingly, was greeted by disgust from state officials. New Jersey Attorney General Peter C. Harvey called for the passage of a new video voyeurism law and remarked that "our statutes were written at a time when no one contemplated the type of technology now proposed. We have to tighten the law."(fn37)

Today, legislative efforts are being made in some states, including New Jersey where Stephen Burke was allowed to walk free,(fn38) to rein in video voyeurism and, conversely, to expand privacy.

For instance, in June 2003, New York Governor George Pataki "signed into law a measure that makes...