View Full Version : 1st Amendment vs Personal Privacy-Lawyers Welcome
10-27-2003, 08:06 PM
I'm trying to understand where the line between the 1st Amendment and a person's right to privacy is. Tonight in my Intro to Political Science class we just started covering mass media and very briefly mentioned the incident about The Pentagon Papers. I tried to talk to my teacher after class but she wasnt very clear in her answers. The way she made it sound a member of the Press could steal my mail or break into my house, hack into my computer, and publish any documents he found without any reprecussions (a la The Pentagon Papers). So my question is, obviously, where is the line?
Also, what about medical information? Suppose a person had some condition, lets make one up and call it Bob's Disease. Now suppose they hadn't made the fact that they have Bob's Disease public and you couldn't tell to look at them, it wasn't like a broken leg or anything. This brings up two questions, 1) Can the papers just start running stories about the person having Bob's Disease, regardless how they got the information? Wether they stole the records or what not? 2) What if you had a close friend and you told them, them being so close and all. If you piss em off can they go on TV and tell everybody or go blab to the papers and then they run a story? It seems to me that people have no real privacy, at least thats how my teacher made it out. In fact she told me after class, "They can write whatever they damn well please." Can anyone shed some light on the facts of this matter?
10-27-2003, 11:50 PM
I'll leave most of this to the constitutional lawyers in the group (I know you're out there!), but I can certainly comment on this:Originally posted by ChronosGF
...a member of the Press could steal my mail or break into my house, hack into my computer, and publish any documents he found without any reprecussions.... Stealing your mail is a Federal crime, whether it's done by a member of the Press, or by an identity thief, or by the mischievous neighborhood kids. Breaking into your house is a state crime, usually a felony. Hacking into your computer is also a criminal offense.
The First Amendment gives the Press a lot of leeway when it comes to publishing information, but it doesn't give them a free pass when it comes to violating the law in the course of obtaining the information.
10-28-2003, 12:24 AM
I'll give this one the old law school try.
Early Out's answer is correct, but not particularly on target. While mail theft and breaking & entering are crimes, the issue the OP asks about is whether the victim has a private remedy.
He surely does, as the thefts are torts as well, namely conversion, trespass, and probably a whole bunch of other stuff as well.
The real interesting issue is whether publication of illegally obtained information is itself a tort. Consider:
1) A breaks into B's home, steals B's papers and does nothing. B sues.
2) A breaks into B's home, steals B's papers, and publishes information obtained from them in the New York Times. B sues.
Are the damages different? I'm not really sure. Perhaps the invasion of privacy attaches as parasitic damages to the underlying torts? If so, then consider situation 3:
3) A breaks into B's home, steals B's papers, and obtains information from them. A then passes info on to C, who neither knows nor has reason to know that A obtained the information tortiously or illegally. C publishes the info in the NY Times. Is C liable?
Probably not, but it's not certain. In Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 95 S.Ct. 1029 (1975), the Supreme Court struck down a statute providing that names of rape victims not be published. The Defendant had obtained the names from public records and published them.
But, the Court declined to take a stance on the issue of whether one could ever be held liable for publishing the truth.
So if you tell a friend a deep, personal secret--absent some sort of contract not to tell or reliance upon him maintaining confidentiality or privilege or fiduciary duty--and he blabs to the world, well, you're probably SOL. Best to heed the words of Benjamin Franklin: Three people can keep a secret...if two are dead. Don't tell to anyone anything you don't want everyone to know.
10-28-2003, 01:09 AM
Hmmm... pardon my pessimism but it doesn't sound like anyone really has any privacy, ever. Hypothetical: The press wants a story so some reporter gets someone to break into someone's house and steal some information. Now if you can't ever prove the reporter was behind it then he can go about his way claiming he "didn't know it was obtained illegaly". I apologize for the cynicism but this is the first I've ever really heard of this type of situation and I find it down right revolting. What do they care if they steal someone's mail? If no one can prove it then get off scott free. Add to that the fact that once they run a story the damage is done. Not like some piddly amount of money would make up for it, either. What is to stop reporters from doing anything and everything, even commiting murder, to get some information and then just claiming they "didn't know it was obtained illegaly"? Also, the other night I was watching the USA movie about the D.C. Sniper. There was a scene where a SWAT team was preparing to raid an apartment and a news helicopter flew over, alerting the suspect to their prescence via the TV. Say one person or even the entire SWAT team was killed because of the news crew. This is excusable because of Freedom of the Press?
10-28-2003, 08:33 AM
There is a common law action for invasion of privacy. One branch you describe pretty well, unreasonable intrusion into one's affairs or seclusion, such as wiretapping, reading one's mail, repeated telephone calls, and so on. There's no 1st Amendment issue because publication is not an element. The damage is done when the intrusion is made, not when it's communicated to a third party.
Another branch of invasion of privacy is public disclosure of private facts. If an individual has certain aspects of his or her life that a reasonable person would not wish to be made public, are not part of any public record, and are not of any legitimate public interest, public disclosure of these facts can be actionable and the 1st Amendment will provide no protection. In Cox Broadcasting the rape victim's names were both in the public record and judged to be a matter of public interest.
As to what's to stop reporters from committing crimes to obtain information, well, the same thing that stops you from committing crimes to obtain money; threat of criminal prosecution. If a reporter commits a crime to get a story or interferes with the police in the performance of their duties, the 1st Amendment isn't going to keep them out of jail.
10-28-2003, 08:38 AM
There are several privacy torts that originated in the common law, including appropriation, false light, and public disclosure of embarrassing private facts. You very well might have a cause of action under one of these theories. However, with regard to the last one, you have to establish that the facts in question are truly "private." In the recent Carafano case in California, it has been ruled that one's name, address, and telephone number are not private. There is a pretty good chance that if you've told somebody, then you risk losing that "private" status.
Note that these things will not apply to matters of public interest. So if we are talking about your conduct related to your duties as a public official (as in the case of the Pentagon Papers), well, those things just aren't private. In addition, if you are a public figure, then you only have a cause of action if the statements published about you are false and you can demonstrate actual malice.
Getting back to one aspect of the OP, the first big case regarding the Pentagon Papers involved "prior restraint". The USG wanted to prevent the NYTimes from publishing the material. The courts said no, once they were published, then the USG can go after them for printing classified information, etc., but you can't stop them ahead of time. The feeling was that otherwise the USG could order everyone everywhere to get approval ahead time to publish any story. I.e., government censorship.
10-28-2003, 01:16 PM
You are really confusing 2 issues - your 4th amendment right to be free from government intrusion and your 1st amendment right to speech.
"Rights" to a lawyer in the constitutional sense mean nothing more than a limit on government or state action. Generally, these are not absolute.
In the 4th amendment sense, this means the executive branch generally needs a warrant before they search your house, although case law has established numerous exceptions. To get a warrant, they generally must show throught admissable evidence that you probably committed a crime.
In the first amendment sense, your right to speak is not absolute. Govt can generally regulate the time, manner and place but not the content of your speech. I don't agree with the scope of time manner and place limits - I think this guts the protection - but that is where we are at. Applied to a protestor, this may mean you need a parade permit, can protest the white house from across the street only during business hours, etc. Applied to a newspaper, the govt generally can't restrain your speech before you speak.
National defense is a common exception to many limits on govt power. It rarely if ever has worked in prior restraint cases.
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