Privacy versus the Right to Know

One of the basic rights of all Americans is the right to privacy.

(Ed. Note: Check out the accompanying article: When is it Legal to Film People Without their Permission, also in this issue)

This right normally derives from the Fourth Amendment to the Constitution, which states:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

This right "to be secure" has consistently been interpreted to mean that people have a right to privacy in their homes and other nonpublic places, as well as a right to safety. This right applies to those whom you might want to record for a story as much as it applies to you.

Balancing each person's Fourth Amendment right to privacy is the media's First Amendment right to report. The First Amendment reads:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

This right to freedom of speech and freedom of the press has consistently been interpreted to mean that news organizations have the right to print or broadcast the news without fear of censorship, even if a report puts a person in a negative light—as long as it is true and relevant. Remember that libel occurs when that negative portrayal is wrong. If the report is true, the news organization may have a defense. The next section explores the media's defenses against libel. Non-news organizations, such as entertainment companies, also have a First Amendment right to script their stories without fear of government censorship. The legal concerns of nonnews organizations will be explored in the subsequent section.

ENG: News Productions

Broadcast journalism has a great many freedoms under the law that other types of video production do not enjoy. How the end product is used is very crucial to the rights of the makers as well as the subjects. Because news is a public service, and the right of a free press is guaranteed, there are very few ways to stop someone from covering an event or showing a particular picture or scene on a newscast. However, if the news staff does not understand the subtleties of balancing free speech against people's right to privacy; the results can range from loss of prestige to high-priced civil suits. Being wrong can be costly to you and to your employer. When a case of libel is brought against a news organization, the defense—if there is one—usually falls into one or more of four categories: (1) the public's right to know, (2) truth, (3) consent, and (4) public property. Additional factors can influence each case as well: (5) context, (6) public figures, (7) trespassing, (8) hidden cameras, (9) names and numbers, (10) police orders, and (11) other legal considerations.

The Public's Right to Know

The courts have made it very clear that the public's right to know is one of our most secure freedoms. This right generally applies to anything that could be considered interesting to the public, is in the public eye, or affects any portion of the populace. The public's right to know allows the news to show the victim of a car crash, the President on vacation, or the unsanitary conditions inside a poorly run meat-packing plant. However, this does not mean a news broadcast has the right to libel or slander someone or otherwise misrepresent the pictures shown or the words read.

For example, some years ago Las Vegas singer Wayne Newton sued NBC News for linking him to known organized crime figures, thereby damaging his public image. He alleged that NBC's combination of words and pictures created a defamatory impression. Newton won a large judgment ($19 million) in a local court, though a higher court later lowered the amount. NBC argued that it had a legitimate reason for doing a story about Mr. Newton because he is a public figure. However, Mr. Newton was able to demonstrate that the story was false and, moreover, that the reporter knew it was false.

Ed. Note:  Next month:  Truth and Consent