Assessing When and Whether the Media Goes Too Far

Amy Gajda, University of Illinois College of Law, has published “Privacy, Ethics, and the News,” as Illinois Public Law Research Paper No. 07-19. Here is the abstract.

In November 2006, a Texas prosecutor shot himself as police entered his home to arrest him on child sex solicitation charges. Waiting outside were journalists from NBC’s To Catch a Predator program, persons who had initially worked with police in the sting operation. In February 2008, a federal judge ruled that NBC’s behavior in covering the events preceding the suicide could be tortious, based in part on what the court decided seemed to be a violation of journalism ethics. The plaintiff had argued that her brother’s would-be arrest was not news, but a sensationalistic move by NBC to raise its ratings. The court, calling the event a public spectacle, effectively agreed.

Courts, John Marshall famously declared, must say what the law is. Increasingly, however, courts are also called upon to say what the news is. When subjects of unwanted publicity sue, journalists commonly argue that the challenged disclosures were privileged as newsworthy. Traditionally, courts minimized constitutional concerns by deferring heavily to journalists’ own sense of what qualified as news. Recently, however, courts have grown decidedly less tolerant, driven by mounting anxiety over the loss of personal privacy generally and by declining respect for the press specifically. Ironically, an emerging tool used by courts to police news outlets is journalists’ own codes of professional ethics. By measuring editorial decisions against gauzy internal ethics standards, courts give the appearance of deference to the profession while aggressively scrutinizing editorial judgments.

This Article demonstrates the growing threat to press freedom posed by these emerging trends. It places the conflict in historical context, explains how recent developments have undermined judicial deference to journalism in defining the news, examines the implications of the nascent resurgence of tort regulation of journalism, and concludes by suggesting that courts return to a more deferential approach in assessing newsworthiness.

Download the entire paper from SSRN here.