Scholars Gather for NEFAC-Sponsored ‘First Amendment Bubble’ Discussion at New England Law

By Amanda Palmeira

Amy Gajda, author of the “The First Amendment Bubble: How Privacy and Paparazzi Threaten a Free Press,” was the keynote speaker at a symposium last month that centered on her book and how courts’ desire to protect privacy rights has affected First Amendment protections of media. The New England First Amendment Coalition sponsored the event.

Gajda was joined by Clay Calvert of University of Florida’s College of Journalism and Communications, and Sonja West of Georgia School of Law. (Read a previous interview with Gajda here.)

The symposium, held at New England Law | Boston and organized by the New England Law Review, began with Gajda describing the thesis of her book and how recent news items have illuminated that thesis.

“My scholarship looks at the times media has been punished for trying to report truthful things,” Gajda said. “My thesis is courts are becoming distrustful of media and are deciding that media is not publishing newsworthy material.”

She directed the audience’s attention to the recent sex tape involving Hulk Hogan published by Gawker, using the language from her book that casts Gawker and non-traditional media like blogs “quasi-journalism,” or “push-the-envelope media.”

This type of media, Gajda said, forces courts to have a different conversation about the First Amendment because of the privacy interests often involved and the lack of newsworthiness in things like the Hulk Hogan sex tape. Gajda also proposed that websites like The Dirty have forced courts to deliberate where the line between privacy rights and media publishing protections should be drawn.

Historically, Gajda said, courts considered privacy rights as secondary to a journalist’s assessment of what was newsworthy. This was at a time where journalists adhered to codes of ethics, and events like Watergate and the Vietnam War were covered with journalistic integrity and zeal.

“As push-the-envelope media grows, courts begin to distrust media,” Gajda said. “[It] has the potential to affect future protections of newsgathering.”

Gajda also told of how she recently was viewing a Mardi Gras parade in New Orleans, where she lives, and she was astounded that one of the parade floats was recording the crowd to capture a 3D recording of the crowd for audience viewers to experience the parade in virtual reality. Though such an experience might be enjoyable for Internet users far from New Orleans, “it’s not so great for someone like me, and students I assume were participating in ways one would not want future employers to see,” Gajda said.

Because of these new utilizations of Internet publishing, Gajda explained, courts are forced to make decisions to protect individual privacy rights “that harm the news.” This is because determinations of what is newsworthy, and thus protected by the First Amendment, now include considerations of personal privacy causes of action, like intentional infliction of emotional distress.

Gajda gave examples of new court challenges to the balance between individual privacy interests and newsworthiness. These included a recording crew that went to accident scenes with intentions of selling footage to television news outlets.

“Courts are grappling to decide what to do with citizens who film police activities,” Gajda said.

With these challenges that arise from evolving media, “courts should hesitate to question the news judgments of media,” Gajda proposed as a guiding principle for the problem her book illustrates. “[But] I think we all suffer if Gawker can publish [a sex tape] and get away with it.”

Clay Calvert used Gajda’s remarks as a jumping off point for discussing newsworthiness. The distinction of what is newsworthy, Calvert said, has been historically entrusted to journalists who abide by codes of ethics.

“But the Gawkers of the world,” Calvert said, “they don’t follow these rules, they’re out on their own.”

Because of this, Calvert said, Gajda’s book is correct in proposing that now is “not time for First Amendment absolutism” that would give protection to all publishers.

Calvert illustrated what the title of Gajda’s book means: “By accepting everyone under the First Amendment’s bubble of protection for media, including the Gawkers of the world, it’s going to burst.”

The solution, Calvert proposed, is that the courts give deference to journalists about what is newsworthy.

“Deference plays a role in determining whether to restrict the speech in question,” Calvert explained. “Journalists used to have the benefit of vast deference in the past, but that level of deference is being lost.”

Calvert spoke about the Hulk Hogan example Gajda gave, calling it a measuring stick of where journalists draw the line. Calvert noted that the ethics-code-following mainstream media, a category of publications separate from Gajda’s push-the-envelope media, did not publish Hulk Hogan’s sex tape, and such publications “have a sense of ethics.” This difference shows the line that courts should take note of, Calvert said, pointing to Gajda’s book as having done a great job proposing a line between newsworthiness and privacy.

Sonja West responded to Gajda’s thesis and Calvert’s statements, calling Gajda’s book important and something she loves to talk about.

West first discussed the line that courts and journalists are being forced to draw between individual privacies and newsworthiness. The state of journalism now, she said, has made many question the “free press absolutism” that members of the media and media-law attorneys used to adhere to. This approach, which West defined as one that treats all speech the same, seeks to protect “even fringe speakers.”

“I completely agree with Amy,” West said. “News media should not be embracing free speech absolutism.”

The absolutist approach, West said, must be adjusted for the different types of harm and values that today’s media publications deal with.

“The media’s perceptions about how to defend these rights needs to change since courts are,” West said. “The stubborn refusal to separate press from non-press leads to a diminished view of a real, newsworthy press.”

West called for traditional media to step back from their love of speech and protection for all, though commendable, and to instead protect only themselves. This must come from an understanding that though citizen journalists are more enabled with smartphones that have cameras, not everyone is a journalist.

“Courts are getting this, journalists aren’t,” West said.

When the panelists opened the discussion to questions, an audience member asked how everyday people should respond to the thesis Gajda raises in her book.

“People will come to understand that the First Amendment doesn’t protect all publications. . . . A lot of cases suggest that having a camera does not make you a journalist,” Gajda replied, echoing West’s assertions.

Gajda called for better education on what the First Amendment does and does not protect, especially in undergraduate colleges.

“I have had law students who are shocked when they learn they can be sued for defamation for blogging,” Gajda said.

Another audience member asked what Gajda’s book meant for individual responsibility on the Internet, since many are uneducated about what is private and what is protected publishing, and whether this puts duties on Internet users or educators.

“I don’t know if we can condemn people for being people,” Gajda said. “I don’t want to condemn individuals because I would be worried that it would lead to a closed society. . . . The more we’re worried about privacy, the less we will be ourselves.”

Calvert replied as well, saying that even though technology is a game changer, protections should still be given so that it does not result in individual self-censorship on the Internet and in society.

West also replied to the question, stating: “People should expect we’re being filmed [in public], but our legal definition of privacy needs to adjust.”

Amanda is a second-year law student at New England Law | Boston and was a summer intern for NEFAC. She can be emailed at amanda.palmeira@nesl.edu.