From east to west, north to south, the press is hot on the trail of a story. Cameras and microphones shoved into stunned faces. Words and images captured for perpetuity. We’re simultaneously enticed to tune-in, to read, yet repulsed by such avaricious behavior. The press is waging war on privacy to further their objectives. The media is using us, our legislatures, and our courts to achieve their goals.
Reporters and photographers haven’t left us a place to call our own outside the walls of our homes. The Duchess of Cambridge on a private estate. Non-stop TV coverage of Hurricane Sandy and Sandy Hook. Publicizing names of gun owners.
You assume you can sunbathe au naturel on private property without being photographed from a half a mile away. You expect that your tear-streaked face will not be plastered on the evening news when you are picking up pieces of your life or mourning a loved one. You take for granted that only the authorities will have access to your personal information when you comply with the law and register your rifle.
Media Motive for the Privacy War
Mass media violates our privacy again and again, despite pleas to go away and leave us in peace. What does the press gain from torturing people? You can’t blame those sadistic photographers and reporters.
What media corporations gain is money. According to one media comparisons study, people cite TV ads as an impetus for consumer spending.
Advertising generates a whole lot of income. The more a program is watched, the more money broadcasters can make. If more newspapers and magazines are bought, the more printed media can charge for advertising.
Ratings are everything in advertising. A company won’t buy time in a slot that does not reach people, so Nielsen Ratings are important. Newspapers and magazines with low circulation likewise don’t get the word out. It would be a waste of money, since no-one would see the ads.
Over 50% of commercial broadcasting revenue and print income comes from advertising. In 2011, CBS’s 2011 television advertising income was 63% of its total operating income; NBC’s 2011 advertising revenue was 58% of broadcasting income.
Sensationalizing the news and publicizing the story non-stop allows advertisers to count on human nature. The public tunes in and/or buys the newspaper. Media networks bet that if you get hooked on the drama, the personalities of the reporters, you will keep watching or buying the particular outlet for your news. High viewership and readership increases the likelihood of advertising sales.
The media wages a privacy war for money.
The media’s war on our privacy is a three pronged preemptive strike to safeguard their prime objective. The fronts are opened based on our own definitions of privacy, of our legislators’ submissive status, and the protections afforded by our Constitution.
Privacy War’s 3 Prong Attack
It is critical to understand the media’s methods to invade privacy. Knowledge of the tactics allows us to circumvent attacks on our right to carry on with life out of the camera’s eye.
In the words of Justice Hugo Black, “’Privacy’ is a broad, abstract, ambiguous concept”. The media takes advantage of the elusive definition. They use our concepts of privacy, our legislators, and our courts to chip away at our freedom to be left alone.
1. Privacy Definition
Our disagreement on privacy’s definition creates a weak link. If you asked 1,000 people to define “privacy”, in all likelihood you will get 1,000 different responses. Things that one person thinks is confidential information or private moment, the next person may not.
For example, your land is not your private domain in Hawai’i. Others may walk across your property to get to a beach or a grocery store. You did that in Texas, you might be forcibly stopped by the landowner. You may view your electronic correspondence as private, but the government, media, and your employer view your emails, chats, and Facebook page as public since the documents are out in cyberspace.
Our views on privacy vary from person to person and region to region. When enough people agree on a privacy issue, legislators pass statutes to protect our confidentiality. We have federal privacy laws for communication, financial information, medical records, education rights, and children’s privacy.
2. Privacy Legislation
Federal privacy laws protect our personal information that is in public domain, but no laws ensure our personal space outside the home. Legislators must agree to pass a bill into law. This takes a 2/3 majority in the House and a simple majority in the Senate.
The idea of personal space, of what constitutes privacy, varies greatly between the regions of our country. Once a bill is introduced, it is usually changed substantially so that lawmakers can reach a consensus.
The media knows that they can exert pressure on Congress by providing coverage, good or bad. Coverage depends on how the proposed bill will affect their seemingly “right to intrude” on our private space. They also know that lawmakers depend on “good” press to keep their jobs.
State and municipal governments are more responsive to our needs for privacy. When our outrage becomes intense, usually when someone gets hurt or dies, local governments move. State lawmakers try to protect us from the media’s invasion into personal space.
California Civil Code 1708.8 defines where a person’s individual privacy begins; many states probably have similar provisions to protect our seclusion. Municipalities pass ordinances such as requiring groups to stay a certain number of feet away from an event on public property.
It’s almost a sure thing that either a suit will be brought against the press by an outraged citizen or that a media heavyweight will challenge the constitutionality of state law that it views as restricting its freedom to report the news. State courts generally uphold state law. Mass media has deep pockets and can afford the appeals process.
3. Privacy, the Constitution, and the Supreme Court
While the press has protection from the 1st amendment (freedom of speech and press) and the 14th amendment (prohibiting laws that interfere with citizens’ Constitutional rights), a right to privacy is not expressly stated. Sometimes liberty is interpreted to include a right to privacy, but this interpretation is usually brought up in court deliberations or in dissenting opinions.
There have been very few findings against the media in federal appellate courts. Federal appellate courts review decisions of state courts for errors of law. Errors of law are the misinterpretation or misapplication of a federal statute or Constitutional amendment by the state courts.
Most state appellate court decisions have been overturned by federal courts based on “prior restraint”. Prior restraint means that governments, both state and federal, cannot pass laws that ban expression of ideas prior to publication.
Never mind that a bigoted, incendiary publication may cause an outbreak of violence (Near v. Minnesota). It may be irrelevant that the media’s actions may infringe on another person’s constitutional rights (Nebraska Press Association v. Stuart). State statutes protecting the privacy of a rape victim or the victim’s family become unimportant (Cox Broadcasting Corp. v. Cohn).
As early as 1890, Louis Brandeis and Samuel Warren, in “The Right to Privacy”, expressed the opinion that citizens’ right to be left alone should be protected.
“it has been found necessary from time to time to define anew the exact nature and extent of the individual’s protections of person and property, and that the scope of such legal rights broadens over time — to now include “the right to enjoy life — the right to be let alone.”
Reasonable expectation of privacy is subject to interpretation. The Supreme Court’s rulings indicate that your privacy ends when you leave your home. The exception is closing a door while you are in public, such as the door to a phone booth, exhibits a reasonable expectation of privacy (Katz v. United States).
Can people mourning a loved one at a cemetery close a door? Yet, most reasonable people view funerals, the motorcade to the cemetery, and the actual burial service a private event. Private, yet it occurs in a public area.
Dissenting Court opinions note the ambiguity of reasonable expectations of privacy. Some dissents go as far as to consider that the press is being given freedoms that extend far beyond the intentions framed in the Constitution.
The implications of federal court decisions are not lost to the press. The Reporters Committee for Freedom of the Press, a not-for-profit organization providing free legal advice and resources to journalists, goes out of its way to detail state and federal court rulings concerning privacy. It’s a primer on how to invade our personal space in public and not get into trouble with the law.
There is little that we can do to win the privacy war. We can carefully consider state statutes to protect ourselves, but must be prepared that they will be found to violate the first amendment. A plausible alternative to state laws would be hitting back hard and not tuning in or purchasing publications from media outlets that we find too intrusive on others’ personal space. The only problem that must be solved is finding a consensus on a concrete definition of what constitutes “privacy”.