Invasions of privacy by journalists
Journalists are protected by "freedom ... of the press" that is explicitly mentioned in the First Amendment to the U.S. Constitution, while privacy rights of individuals are not explicitly mentioned in the Constitution. A public figure has great difficulty recovering for defamation (i.e., publication of false statements). N.Y. Times v. Sullivan, 376 U.S. 254 (1964); Restatement (Second) of Torts 580A. See also Time, Inc. v. Hill, 385 U.S. 374 (1967)(Require finding of "knowing or reckless falsity" before plaintiff can recover under state privacy statute for false portrayal). There would presumedly be even less protection for publication of true statements (i.e., inventory of a garbage can) of a public figure. For the same reasons, a public figure can not recover for "intentional infliction of emotional distress" caused by a parody or satire. Hustler Magazine v. Falwell, 485 U.S. 46 (1988).
In 1910, William Sidis, a child prodigy, was a public figure. Many years after he became a recluse, a reporter for The New Yorker located Sidis in 1937 and wrote an article that described in detail Sidis' current activities. Sidis sued the publisher for invasion of privacy, what would now be called "unreasonable intrusion on seclusion". The Court of Appeals held that Sidis' life was still of public interest, therefore The New Yorker could publish an article about him. Sidis v. F-R Pub. Corp., 113 F.2d 806 (2d Cir. 1940). This famous case is typical of many subsequent decisions: journalists have the right to report anything that is arguably of interest to their readers. Courts do not want to get involved in evaluating whether the reader's interest is in good taste, socially decent, etc. Still, I am concerned that Sidis' right to solitude his right to be let alone was violated because of a nosy public's curiosity about Sidis as a freak. Sidis had done nothing around 1937 that would make his personal life a legitimate public issue: he had not asked for donations of money from the public, he was not a politician who was asking for votes, he had not made any recent publications, he had not harmed anyone.
Courts do not always protect the press. A newspaper in Alabama published a photograph of a woman whose dress was lifted by jets of air at a Fun House at a county fair. The court ruled that the photograph, which showed her panties, had no "legitimate news interest to the public" and upheld an award of $4166 to plaintiff, for invasion of her privacy. Daily Times Democrat v. Graham, 162 So.2d 474 (Ala. 1964). The facts are mentioned in the Restatement (Second) of Torts at 652B, illustration 7, but without a cite to the actual case.
There are several television programs in the USA that show paramedics or firemen rescuing people. When someone calls for emergency assistance and a television camera crew also appears and enters their house, the victim is in no condition for either consent or protest to this invasion of his/her privacy. There have been several reported cases in which the victim later sued the television program for invasion of privacy.
Shulman v. Group W Productions, 59 Cal. Rptr.2d 434 (1997);
Miller v. NBC, 232 Cal.Rptr. 668 (1986);
Anderson v. Fisher Broadcasting, 712 P.2d 803 (Or. 1986).
In commenting on the dearth of precedents for similar intentional trespasses and invasions of privacy, the court in Miller noted
There is little California case law based upon facts showing actual physical intrusion to assist us in making this determination, probably because even today most individuals not acting in some clearly identified official capacity do not go into private homes without the consent of those living there; [FN6] not only do widely held notions of decency preclude it, but most individuals understand that to do so is either a tort, a crime, or both.
FN6. There are surprisingly few cases in other jurisdictions as well, probably for the same reason. There have been some hospital intrusion cases where the person whose privacy was invaded was ill or dying; see, e.g., Barber v. Time, Inc., 159 S.W.2d 291 (Mo. 1942); Estate of Berthiaume v. Pratt, M.D., 365 A.2d 792 (Me.1976); Froelich v. Werbin, 548 P.2d 482 (Kan. 1976); and see, in a different privacy context, Bazemore v. Savannah Hospital, 155 S.E. 194 (Ga. 1930), where hospital authorities summoned the press to take pictures of a deformed infant who had died in the operating room. In California there is Noble v. Sears, Roebuck & Co., 109 Cal.Rptr. 269 (1973) where the investigative efforts on behalf of defendant Sears led to intrusion into a hospital room (not a privacy case at all). Many of the fact patterns involved in the above-cited cases are bizarre, and not accidentally so; all involve intrusions generated by a curiosity or misplaced zeal that most persons eschew.
Miller v. NBC, 232 Cal.Rptr. 668, 678-679 (1986). [citations edited to conform to modern Blue Book format]
It is not yet clear exactly where the boundary between "freedom of the press" and privacy of individuals should be drawn. Miller made clear that a film crew entering a home with paramedics (not only was the film crew uninvited, but they never asked permission from the homeowners) was an intentional trespass that is actionable in tort. The court in Shulman held that victims did have a reasonable expectation of privacy inside an ambulance, however this case is currently under review by the California Supreme Court. review granted 934 P.2d 1278 (Calif. 1997). These two cases describe the law only in California.
The U.S. Court of Appeals for the Ninth Circuit declared
The First Amendment has never been construed to accord newsmen immunity from torts or crimes committed during the course of newsgathering. 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.
Dietemann v. Time, Inc., 449 F.2d 245, 249 (9th Cir. 1971).
In my opinion, there are similar issues here and in medical experiments on human beings without informed consent. Both the journalists and physicians obtain fame and fortune, while their victims suffer. Not all journalists are unethical. Not all medical researchers are unethical. But there exists the potential for exploitation of victims.
A "public figure" does have the right to control commercial exploitation of his/her name and likeness. But here there is no conflict between the freedom of the press and the privacy rights of individuals. Haelan Laboratories v. Topps Chewing Gum, 202 F.2d 866, 868 (2d Cir. 1953); Arnold Palmer v. Schonhorn Enterprises, Inc., 232 A.2d 458 (N.J.Super. 1967); J. Onassis v. Christian Dior-New York, Inc., 472 N.Y.S.2d 254 (1984).
The entire act of a circus performer was filmed and showed on a televised news broadcast in 1972. This was not a misunderstanding: the day before the surreptitious filming occurred, the performer had asked the reporter not to film the performance. The performer sued the television station for "unlawful appropriation" of his performance. The U.S. Supreme Court and the Ohio Supreme Court held that the television station had no immunity under freedom of the press. Zacchini v. Scripps-Howard Broadcasting, 433 U.S. 562 (1977); 376 N.E.2d 582 (Ohio 1978).