Amy Gajda is a law professor at the Tulane University Law School, and is recognized internationally for her expertise in media law, torts, information privacy and higher education law. Her book, The First Amendment Bubble: How Privacy and Paparazzi Threaten a Free Press, was published in January 2015 and explores judicial oversight of journalism news judgment. Gajda spoke with New England First Amendment Coalition intern Amanda Palmeira about her book, the shifting focus of the courts from the First Amendment to privacy and what that means for journalism.
What does the title of your book, The First Amendment Bubble, refer to?
The First Amendment was once very protective of a lot of speech, but because more journalists and non-journalists raise the First Amendment as a level of protection for harmful speech, or harmful written words that invade privacy, for example, courts are responding negatively to that. So the title refers both to the belief that the First Amendment will be protective, but also acknowledges that courts are responding negatively to those sorts of arguments.
As you say in your book, courts are taking a more protective stance of individual privacy rights. What do you think has contributed to this new outlook on the First Amendment?
A lot of it has to do with what is happening on the Internet today. As I write in my book, it used to be that mainstream publishers, mainstream newspapers, mainstream journalists were the ones who decided what sort of privacy-invading information would be published. And before they would publish anything that was privacy-invading, they would look to ethics codes and try to grapple with the ethical questions raised by whatever they were going to publish. At times, journalists would and still do decide not to publish something that is decidedly newsworthy because there’s too great a chance that someone’s privacy is going to be invaded in an unreasonable way.
You include many examples in your book of courts neglecting the idea that the First Amendment protects the marketplace of ideas even if that means sacrificing some individual privacy interests.
Right, and I think that’s why ethics is such an interesting part of the equation. As more publishers have pushed the envelope either in publishing things like revenge porn or publishing really, truly emotionally harmful information about others, they are less likely to be protected by the First Amendment.
And so, even though we do have this marketplace of ideas, the marketplace of ideas was very different pre-Internet. It was easier to embrace such a marketplace when we didn’t have publishers of revenge porn, when we didn’t have publishers of mugshots of people not yet convicted of anything. That’s what I find so interesting now: Yes, the marketplace of ideas is wonderful, but at some point we have to recognize that there’s emotional harm done to others by certain information put into the marketplace against their will.
What effects do you think this new approach to the First Amendment will have on media?
My worry is that it could become very easy for a judge to say, “That is not newsworthy. I don’t see any news value in that particular bit of information, therefore I’m going to decide in a legal sense that it is not newsworthy.” To me, as a former journalist, this is very troubling because there is a lot of very difficult privacy-invading information that is in fact newsworthy and important for the public to learn. So I worry about judges who are not trained in journalism; judges who, I think quite frankly, often don’t appreciate the difficulty involved in deciding what is news and the ethics issues that journalists grapple with when they make a difficult news judgment.
Another thing that makes this more difficult today is that when we use words like “media” and “news,” we often encompass many publishers, including mainstream journalism, reality television shows, and publishers who just happen to have websites. My concern is that if judges draw that line of newsworthiness too closely in favor of privacy, it will impact all of media, including mainstream journalism, because of what less ethical media is doing.
The economics of journalism now makes this an interesting area because mainstream media may embrace clickbait-type tactics that make them look like the quasi-journalists that you describe in your book. Have you seen the economics of news reporting playing a role in court decisions?
I think that the economics of journalism could have legal implications, and that’s why I argue that journalism needs to embrace those ethics principles that it once did and continues to abide by in most coverage, and not be led away from that high-mindedness. If mainstream journalism does not do so, there’s the very real potential for judges to reject any special “you are the press, you get to decide what is news” dispensation for publishing decisions that are privacy invading but newsworthy.
Regarding mainstream journalism in a practical sense, the number of editors has dwindled, and so we have instantaneous publishing today on a number of mainstream news websites. If a reporter makes an error that is defamatory regarding an average person, then courts will need to grapple with what negligence means under those circumstances. It’s likely going to be more difficult to argue that the journalist deserves protection when an editor hasn’t looked at anything and when the decision to publish was made instantly. Older cases have protected journalists, especially when there’s some sort of editorial oversight involved. Well, that’s not happening anymore, and you’re not going to get any sort of language that lauds the editorial process like you once did.
One of the cases that struck me the most in your book is Conradt v. NBC. The court in that case applied the Society of Professional Journalists Code of Ethics as its legal test to determine whether the tort of intentional infliction of emotional distress had been committed.
The SPJ Code, because it’s an ethics code followed by a lot of journalists, is an easy demarcation point for courts to use to decide liability. But it’s also a very difficult line for publishers to live up to, because the SPJ Code is decidedly aspirational and also contradictory. Non-journalists would see violations of the SPJ Code in almost every news story because they don’t understand exactly how the code operates — it’s not law, but guidance for journalists. That’s another point that I try to make in my book: If we’re going to say that something newsworthy is protected, then someone has to decide what is newsworthy. The best person to make that call, I think, is someone who’s been trained in journalism ethics. In that way, I do think that ethics codes can be valuable to courts. But I worry that journalism ethics codes will be used by judges who don’t fully understand the aspirational nature of an ethics provision and that it must be read in conjunction with other provisions — and that sometimes even then a decision to publish trumps all privacy-related concerns.
In Massachusetts, the public records law is under criticism for being too weak and the state recently had a hearing on improving access to court documents. While there are great points made about the value these documents have to the public and to the press, many individuals express concern about the interests of minors or of people who are arrested and then acquitted, for example.
That’s right, and if you read further on in the book, I make that point about Freedom of Information Act requests. There have been a few cases in which websites have requested public documents like mugshots, accident reports, and those sorts of documents that were once made readily available to mainstream journalists. But when these quasi-journalistic websites ask for the same information, because these websites exist to publish things that will embarrass people, courts have decided that the information should be protected and not released. So that’s been a pretty interesting development: It used to be that police and government agencies would know that even if they released some information to the press, the press would protect the privacy of the individual at issue unless the information was newsworthy. Today, we have websites that exist solely to publish mugshots and to mock people. So you can see where a court might suggest that maybe mugshots shouldn’t be released because of the real potential for harm to the individual, harm that was once tempered by a journalist making a news judgment.
Having an awareness of the First Amendment “bubble” that your book discusses, what do you recommend as the best approach for judges, attorneys and journalists going forward? What would you say is the best mindset to have in each of those positions?
One of the most important things for judges to recognize is that not all media is the same. And, therefore, it’s important to avoid sweeping language that condemns all media when such language affects ethics-abiding journalists in addition to the privacy-invading media that the court wishes to condemn. As for lawyers, most lawyers already know that they need to be aware of lower-court cases. There may be some, though, who focus only on United States Supreme Court jurisprudence and fail to recognize that there’s an awful lot of stuff happening at lower-level federal courts and state courts regarding the press and media today. Those cases are interesting and, I think, are becoming increasingly relevant for media practice today. For journalists, I think that journalists and all publishers need to recognize that not all truthful information will be protected today. Just because publishers decide that they want to publish something truthful, doesn’t make it right in an ethics sense and doesn’t make it protected in a legal sense. Part of my argument is that journalists and all publishers should recognize that it remains important to consider codes of ethics because they help to maintain the dignity of the individual and that, ultimately, is important no matter what a court decides in a legal sense. Publishers who publish truthful information without considering the privacy of the individual at issue risk ruining protections for everyone.
Amanda is a second-year law student at New England Law | Boston and was a summer intern for NEFAC. She can be emailed at firstname.lastname@example.org.
NEFAC was formed in 2006 to advance and protect the Five Freedoms of the First Amendment, including the principle of the public’s right to know. We’re a broad-based organization of people who believe in the power of an informed democratic society. Our members include lawyers, journalists, historians, academics and private citizens.
Our coalition is funded through contributions made by those who value the First Amendment and who strive to keep government accountable. Donations can be made here. Major Supporters of NEFAC for this year include: The Robertson Foundation, The Providence Journal Charitable Foundation, The Boston Globe and Boston University.