Chapter 5 notes

Harassment and Stalking (-Intrusion and Trespass)

- Although recording is allowed in public places, it does not include right to interfere with law enforcement or overzealous surveillance or harassment. (No paparazzi car chase.) - Galella v. Onassis (aggressive journalism can cross over to illegal harassment. Galella did too much, bumping on kids, spying using telephoto lens, and impersonating family employees, thus invaded Onassis's "right to be left alone.") - Superior Court judge in California declared that anti-paparazzi law is unconstitutionally overbroad because it imposed criminal penalties on constitutionally protected newsgathering activities. - Andrews's stalker

Consent

- Can be both explicit and implicit. - People who talk to the reporter give implied consent for use of their names because they should anticipate publication. - However, if the reporter fails to notify the people that he or she is being interviewed or just for with the fact that the people is talking to a reporter consent might not be implied. - Media may invade individual's privacy if they exceed the bounds of the consent granted.

The Public Domain (Private Facts)

- Can only sue for private facts if the information is PRIVATE. - When the information that is PRIVATE is released in a public domain, the information is no longer PRIVATE, thus, cannot sue. - Howard v. Des Moines Register (cannot sue because involuntary sterilization was done at government home[public record]). - Cox Broadcasting Corp. v. Cohn: The court established nearly complete First Amendment protection for media to report information from official records available in open court. (If PRIVATE information was revealed in an open court, there is no protection under private fact law.) - Court are reluctant to forbid publication of public record that might offense a reasonable man because punishing above can cause "self-censorship" that can lead to suppression of many items.

First Amendment Right to Record Police (-Intrusion in Public and Quasi-Public Places -Intrusion and Trespass)

- Citizens may employ audio and video equipment to record what occurs in public places without first seeking permission. (U.S. Court of Appeals for the First Circuit). - Glik v. Cunniffe (Glik had First Amendment right to record police officers in action from 10 feet, clearly visible and in public place.) - Law enforcement officers must permit, "videotaping that memorializes, without impairing, their work in public spaces." - American Civil Liberties Union of Illinois v. Alvarez - "Making of an audio or audio visual recording is necessarily included within the First Amendment's guarantee of speech and press tight as a corollary of the right to disseminate te resulting recording." (Seven Circuit Court) - Re: Christopher Sharp v. Baltimore City Police Department (Sharp recorded a video of the police officers arresting his friend) - Court strongly agrees to recording public events, including recording law enforcement officers on action, under the First Amendment right but question is still open.

Private Facts

- Defined in 'Restatement (Second) of Torts, a summary of a common law. - (as) a publication of private information that "(a) would be highly offensive to a reasonable person and (b) in not of legitimate concern to the public." - simply put. involves disclosure of very personal information and the disclosure is not justified by the newsworthiness of the information. - Not public concern. - Usually media has much right to publish truthful information that is of public importance. - Truth is not what this law protects, it is protects against plaintiffs personalities. i.e in successful cases, plaintiffs sue for shame, humiliation, and mental anguish. - Also, should show that a wide audience was exposed. Tort of publicity (평판).

Spatial Privacy

- Government cannot search homes and personal spaces - Fourth Amendment, Common law, and statues already implies this.

Receiving Stolen Information

- Journalists are not liable if they recieve the fruits of someone else's trespass. - Pearson v. Dodd. Pearson was not held liable for obtaining private information about Senator Thomas Dodd, information Pearson knew was stolen by the senator's staff. Conversion was denied because Dodd was not deprived of use of his file. And also the file was not a "property" since the confidentiality of it did not create value. - def of Conversion. Unauthorized exercise of ownership rights over someone else's property, usually denying the owner use of his or her own property.

Third-party Monitoring (-Intrusion in Private Places)

- Law enforcement need valid search warrant in order to legally bug a room, secretly monitor telephone conversations, or gain access to paper or computer document. - Third-party monitoring of conversations is particularly intrusive monitoring because in may intrude "upon the privacy of those not even suspected of crime and intercepts the most intimate of conversations." (Justice Douglas) - Foreign Intelligence Surveillance Court(FISC): Secret court authorized to issue warrants in national security cases more quickly and with less evidence of suspected criminal activity that civilian American courts require. BUT Bush authorized warrantless wiretapping on American citizens after 911. - Clapper v. Amnesty International USA (lawyers, journalists, and human rights researchers who have overseas clients or contracts connected to terrorism could not sue claiming the secrecy law injures them. Also, cannot prove that they are being surveillanced. Third-party is anyone who is not included in the conversation, this means that the private citizen is also prohibited under the Fourth Amendment to not wiretap, bug, and eavesdrop. - Electronic Communications Privacy Act is kinda old and does not effectively protect Internet communication. (e-mails over 6 months, governments can access.) - Disclosure of illegally intercepted communication is prohibited under federal law and many state law. (And WTF Google.) - BUT disclosure of legally acquired information that is illegally intercepted is OK IF the information is of GREAT PUBLIC IMPORTANCE. (i.e. Journalist who publish or broadcast that he or she obtained legally that was collected through illegal manner is OK.) - Bartnicki v. Vopper (The information, about teacher pay raise, was left in the mail box anonymously.) - Smith v. Daily Mail - Florida Star v. B.J.F. - To deter unlawful recording, in is better to punish the interceptors than the journalists who innocently acquire and disseminate the recordings. (Justice Stevens) - Bartnicki principle: First Amendment protects disclosure of lawfully acquired conversations of public importance even if they are unlawfully recorded. - Hacking, in order to acquire previously recorded conversation, is illegal. - Pretexting: gaining phone records through a false identity. Illegal.

Accompanying Offials

- Long history of following public servants at a close range. - It is acceptable to gather information when they are on duty in public areas but when they enter the private place, recently, in is becoming more not accepting. - This trend starts with the case FLORIDA PUBLISHING COMPANY . FLETCHER. Story of a 17 year old girl that died in fire was published. Was ok because it was a major CATASTROPHE and the property owner was absent. - BUT in other cases, journalist entering private property with public officials are considered trespass. - Anderson v. WROC-TV. Animal cruelty, property owener, Anderson, was home and denied journalists accompanying the official, Storm. NY court said the authority of officials to enter private property to preform their duty "does not extend by invitation, absent an emergency, to every and any other member of the public, including members of the news media." - Not only might journalist trespass when they accompany the officials when they enter private places but they also can be considered as an officials themselves - acting under color of law - who violate citizens' rights of privacy under the Fourth Amendment.

Participant Monitoring (Intrusion in Private Place)

- Occurs when at least one party to a conversation is aware of a secret recorder or transmitter. - Investigative reporters, like police informants, can cerry secret recorder or transmitter to document wrongdoing. - BUT participant monitoring in particularly private places may still be a tort in common law. -Federal Law: Permits one party to conversation to record or transmit a conversation without telling the other party. (Cuz it's just like saying what you heard.) BUT doctors, lawyers, and ministers are prohibited by law divulging confidential conversations with their clients. Section 2511 of the federal wiretap statute forbids participants secret recording intended to commit a crime or a tort. Journalists are allowed to gather info secret participant recording even if the resulting news story may contain defamation. FCC requires telephone companies to gather agreement from the subscribers when recording the conversations. Broadcasting has to notice when secret participant recording but not to broadcast it is ok, just like citizens. - State Prohibitions: 38 states permits participant monitoring like federal law. but rest of 12 states prohibit participant recording. - Secret Recording as a Tort: If subterfuge is used to bring electronic eavesdropping equipment into a private place, such as home. - Dietemann v. Times (Journalists' electronic intrusion into a private place is not allowed.) - The First Amendment is not a license to trespass, to steal, or to intrude by electronic means into the precincts of another's home or office.

Officials' Liability

- Officials inviting the journalists to accompany them into private places while executing a warrant is a violation of citizens' Fourth Amendment. - Wilson v. Layne. "Operation Gunsmoke" in order to arrest Wilson's son, who was not there. Good relations for the public is not enough and minimizing police abuses and protecting suspects and the officials are not plausible. But the officials are not liable because they did not know (1992). - Hanlon v. Berger. Similar with Wilson v. Layne case, officers were immune from liability cuz they did not know (1993). CNN about eagle killing. Journalists accompanying officials act under color of law and therefor may also be liable for violating a citizen's Fourth Amendment. But not lialbe or punished unless they violate the constitution of the federal law. To act under color of law, a journalist must act in "collusion" with or willingly participate in joint activities with state officials. - Conradt v. NBC Universal. Jouralist's unreasonably intrusive search in violation of Fourth Amendment and may have recklessly contributed to the suicide in violation of Conradt's civil rights. Conradt was a respected public servant that practiced law for 30 years. Dateline crew worked with the police force closely to dramatize the situation. This also may have caused emotional distress resulting in Conradt's suicide.

Newsworthiness Over Time (Private Facts)

- Once people are newsworthy, they may remain newsworthy. - Old public records that retains newsworthiness, even it has little newsworthiness. - 'Iberville South' - Roshto v. Hebert

Intrusion in Private Places

- Peeping through the window, opening someone's window, pressing ears to the door may be trespass, intrusion, or both.

Matters of Public Importance (Private Facts)

- Private facts in information not of legitimate concern to the public. - Cox v. Cohn - Florida Star v. B. J. F. (Information about B. J. F.'s rape was important to the public.) - lawfully acquired truthful information that is in the interest of the public is protected under the First Amendment, according to the Supreme Court. - If the government wishes to keep information confidential it should establish stronger safeguards on disclosure, not the press.

Decisional Privacy

- Protect individual's ability to make decision. i.e. marriage, birth control, and abortion.

Newsworthiness (Private Facts)

- Protection for publication of an ever-widening range of newsworthy in formation. - Newsworthy topic: crime, official actions, and events of significant public importance. - Even what is newsworthy is embarrassing to an individual it is ok to publish if it is newsworthy. - Sipple v. Chronicle Publishing (newsworthy because Sipple breaks the negative stereotypes of homosexuals.) - Cape Publishing, Inc. V. Bridges (Newsworthy because shows domestic violence.) - Newsworthiness is an elastic term. - Def of "News." - Michael v. Virgil

Forth Amendment

- Protection from government searching of citizen's homes and property. And if someone wants to ("search and seizures") they, the government, need a warrant.

Intrusion and Trespass

- Sue for the newsgathering technique. - Common law protects citizen from intrusion into private places. - Tort of intrusion is said to be a highly offensive physical, electronic, or mechanical invasion of another's solitude or seclusion. - Includes secretly recorded conversation, the overly aggressive surveillance, and long-distance photography. - Intrusion is a prt of the privacy law because it violates the right for the individual to be left alone and to control information about themselves. - Intrusion is a tort of information gathering, not a tort of disseminating information by publishing or broadcasting. - No matter what the information is learned or whether the information is published or broadcasted, information gathered secretly can be liable for intrusion.

Informational Privacy

- The ability to control information about oneself. - Important in electronic information era.

Highly Offensive Disclosure of Private Information (Private Facts)

- The information has to be PRIVATE - (and) the information have to be HIGHLY OFFENSIVE to AVERAGE PERSON. - Media is most likely to be held responsible is the information is about illness, mental disorder, intimate medical procedures, and hospitalization without the consent of the subject. - Time magazine v. Dorothy Barber - Social media have no privacy claim since the information is mostly posted willingly. i.e. fb drinking pictures. - Students or employees should not be subjected to discrimination or bullying depending on the information disclosed on social media. i.e. religion posted on Twitter or persistent friend request is sexual harassment. - Employers google employees and limit job oppertunities if media was used unprofessionally, but must not discriminate based on gender, race, sex, or ethnicity. - "Drunken Pirate" v. Pennsylvania University (Drunken lost) - Concordia University: Assume responsibility of what people post on social media. - South Carolina Supreme Court: talking to the reporter does not mean consent in publishing story about the individual that was interviewed. (Hawkins v. Multimedia)

Trespass (Intrusion and Trespass)

- Trespass def. requires a physical invasion of someone's private property without consent. - Simply going in to private property without consent can be considered as trespass even if they did not attempt to make a recording. - Federal court in the Midwest extended trespass law to theInternet. (Le Mistral, Inc. v. Columbia Broadcasting Sys. Sending out unsolicited e-mails is against the law. Violation of federal Computer Fraud and Abuse Act.) - Tenant may grant or deny access to an apartment or rental house, regardless of the wishes of the property owner, because the person who rent the property also "possess" the property. -But access for policemen or firemen are acceptable in emergencies. - When journalists enter the private property to ASK QUESTIONS, they gain an IMPLIED CONSENT to remain if the property owner agrees to talk. - BUT when they are misrepresented or use false identity it is not allowed. - HOWEVER, misrepresenting in order to collect information from public businesses is controversial. - Desnick v. ABC. Dismissed the claims against ABC for secretly gathering informations even if they agreed not to do so. Deception occurred when the the reporters agreed not to "ambush" interviews or "undercover" surveillance. - Food Lion v. Capital Cities/ ABC. Appeals Court punished the journalist for violating their duty to their employer, secretly gathering information for report about low quality meat. But $2, because based on the false information on the job application. And collecting loss caused by the broadcasting was denied because broadcasting was not on trial in the suit over newsgathering practices.

Cyberbullying (-Intrusion and Trespass)

- With the growth of the internet it became easier to harass through online. social media like Facebook and twitter allows them to harass, threaten, or embarrass the victims.) - Cyberbullying is not a legal term, it is a broad range of antisocial Internet communications. - def. sending or posting of cruel or harmful material or engaging in other forms of social aggression using the Internet or other digital technologies. - Federal cyberstalking law makes it a crime to use interactive computer service to kill, injure, harass, intimidate or cause substantial emotional distress BUT publishing tweet message on issue of public importance is allowed even if the tweets are offensive or obnoxious. - U.S. v. Cassidy (Cassidy said shit about Zeoli, a Buddhist leader, but was ok because even though Cassidy's speech may have caused emotional stress her speech was protect since it addressed religious matter and the viewers could simply not look at the content.) - After Lori Drew, who resulted in the death of the victim, computer fraud statute included cyberbullying. - Internet Service Provider(ISP) is not liable for the content they have under the Section 230 of the Communications Decency Act. - Section 230 immunizes ISP from editorial decisions because ISP's are not publishers or speakers under the federal statute.

News

- all events and items of information that are out of the ordinary humdrum routine, and which have 'that indefinable quality of interest which attracts public attention.

Intrusion in Public and Quasi-Public Places (Intrusion and Trespass)

- depends whether the person has a reasonable expectation of privacy. - Generally, the more public the surroundings, the less the expectation of privacy. (tape-recording in a public meeting is not an intrusion.) (Photography taken in the restaurant is not a intrusion since a restaurant in open to the public.) - Dempsey v. National Enquirer, Inc. (National Enquirer did not intrude since photo was taken in the restaurant, a public place. And also, while it was "annoying," it was not "highly offensive.")

Origin of Privacy Law

- developed largely during 20th century. - Due to technological advancement, Instant shooting camera and new print. - Samuel Warren and Louis Brandeis. - "right to be let alone." (core)

Due Process

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Narrowly Tailored

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Newsworthiness

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