Chapter 10: Gathering Information

Does the First Amendment protect the gathering of information?

It provides considerably less protection for gathering information than for speech and publication.

What conflict can arise when journalists gather information?

The journalist’s interest in gathering information may conflict with others’ rights, especially privacy.

What is intrusion in privacy law?

A form of invasion of privacy where the harm comes from how information is gathered, not from publication.

How is intrusion different from publicity to private facts, false light, and appropriation?

Those torts cause harm through publication; intrusion causes harm through the act of gathering the information.

What are the three elements of intrusion under the Restatement (Second) of Torts?

1. Intentional intrusion (physically or otherwise)
2. Into another’s solitude, seclusion, or private affairs
3. Highly offensive to a reasonable person

Is intent required for intrusion?

Yes, intrusion must be intentional. Accidental intrusions do not count.

Do you need to publish the information to be liable for intrusion?

No, liability arises from the act of intruding itself, not from publication.

Does the truth or falsity of the information matter for intrusion claims?

No, even true information can result in liability if obtained through intrusive means.

Give an example of physical intrusion.

Entering someone’s home or office without permission.

Give an example of non-physical intrusion.

Using hidden microphones, parabolic mics, telescopes, or telephoto lenses to spy on private spaces.

What was the Jennifer Aniston 2005 intrusion case about?

A paparazzo used a telephoto lens from 300 feet away to photograph her topless at home; she sued for intrusion.

What was the outcome of the Jennifer Aniston case?

The case was settled before trial; it demonstrates that intrusion need not involve physical entry.

What did the Barber v. Time (1939) case illustrate?

Photographing a hospitalized woman without consent can be intrusion if she has a reasonable expectation of privacy.

What does “reasonable expectation of privacy” mean in intrusion cases?

A normal person in the plaintiff’s situation would consider the place, conversation, or situation private.

Can intrusion occur in public places?

Generally no, unless the person is in a situation where privacy is reasonably expected (e.g., hospital room).

How do courts determine if there was a reasonable expectation of privacy?

They ask if the person was in a private place and could reasonably expect not to be observed.

Why is intent emphasized in intrusion compared to other privacy torts?

Because the harm comes from the act of intruding, so deliberate intent is necessary for liability.

Can intrusion liability exist if no embarrassing information is obtained?

Yes, the act itself is sufficient for liability regardless of what is found.

How does technology affect intrusion?

Tech-based surveillance, like telephoto lenses or hidden microphones, can constitute intrusion even without physical presence.

What are the key principles to remember about intrusion?

Intentional, privacy expectation, harm from gathering information (not publication), tech can count, examples include Jennifer Aniston and Dorothy Barber cases.

Do you need absolute privacy to sue for intrusion?

No, you only need a reasonable expectation of privacy.

What was the key issue in the California Psychic Marketing Group case?

Whether employees in a private office (not public) had a reasonable expectation that coworkers wouldn’t secretly record their conversations.

What did the California Supreme Court rule about Mark Sanders’ privacy?

He had a reasonable expectation of privacy because the office was private, even though coworkers could hear each other.

In the Iowa restaurant case, what affects a person’s expectation of privacy?

Location: public areas = low expectation; private rooms or less visible areas = reasonable expectation.

Do people have privacy in their trash?

Usually no. Courts often rule trash left for collection has limited privacy, especially for criminal suspects.

Main principle for reasonable expectation of privacy?

Courts consider context, location, and social norms; absolute privacy isn’t required.

Do people have an expectation of privacy in public?

No, public actions can usually be photographed, filmed, or reported.

What happened in the John Neff (Sports Illustrated) case?

Neff was photographed in public at a game; lawsuit dismissed because he was in full view of the public.

What lesson comes from Flora Bell Graham’s county fair photo case?

Even in public, photos can invade privacy if they humiliate someone and aren’t newsworthy.

What did the courts decide about Ronald Galella and Jackie Onassis?

Aggressive or threatening public behavior (stalking, harassing) can be invasion of privacy despite being in public.

What did the Inside Edition / Wolfson case show?

Surveillance for entertainment or drama, even on public property, can be ruled invasion of privacy.

What should journalists avoid even in public spaces?

Harassment, stalking, humiliation, or interfering with emergency workers or law enforcement.

Can journalists be arrested while covering protests?

Yes, even with press credentials. Most charges are later dropped.

Key journalist safety tips from the Reporters Committee:

1) Be polite. 2) Ask, “Am I free to go?” 3) Ask what crime you’re suspected of. 4) Remind officers news gathering is First Amendment-protected.

Is news gathering fully protected by the First Amendment?

Not completely. Courts support peaceful, non-interfering journalism, but exact limits are unclear.

What determines if a photo or recording in public violates privacy?

Whether it humiliates, endangers, or is not newsworthy, and whether the journalist’s behavior is aggressive or threatening.

Key takeaway for journalists gathering news in public places?

They can report and photograph, but must respect privacy, avoid interference, and act safely.

Can journalists enter private property without the owner’s consent to gather news?

No. Journalists must have the property owner’s permission; trespass laws apply.

Does the First Amendment protect journalists from trespassing to cover news?

No. The First Amendment does not excuse breaking trespass laws.

What happened at the Black Fox Nuclear Plant case in Oklahoma?

Reporters followed protesters onto private grounds without permission, were arrested for trespassing, and courts ruled newsworthiness didn’t excuse it.

What principle did the Oklahoma courts apply in the Black Fox case?

Newsworthiness does not override private property rights or trespass laws.

Can journalists enter businesses that are open to the public freely to gather news?

No. Even public businesses can restrict access for news gathering.

What happened in the Le Mistral restaurant case in New York?

A TV crew filmed health code violations; patrons left; the restaurant sued for trespass; court upheld compensatory damages.

Why was the TV crew trespassing at Le Mistral?

The restaurant was open to the public, but not for filming diners; using cameras amounted to trespass.

Can punitive damages in trespass cases depend on journalist motives?

Yes. If the journalists acted with evil or wrongful intent, punitive damages may apply.

How can journalists gain implied consent to enter private property?

If public officials invite them onto private property, implied consent may exist.

What happened in the Fletcher fire case in Florida?

Fire officials invited journalists to photograph a fire scene; courts ruled no trespass because invitation implied consent.

Can implied consent by officials be revoked?

Yes. The property owner or someone with authority can revoke consent.

Are journalists safe from liability when riding along with law enforcement?

No. They may risk civil suits or Fourth Amendment violations if closely involved.

What happened in the Wilson case with US Marshals?

Marshals brought a reporter during a home arrest; Supreme Court ruled the warrant didn’t allow journalists; residents’ Fourth Amendment rights applied.

Did the US Marshals face damages in the Wilson case?

No. They had qualified immunity; the journalist could still be at risk.

What happened in the Berger case (CNN & Fish and Wildlife Service)?

CNN coordinated closely with agents on a raid; court said CNN became a joint state actor, liable for Fourth Amendment violations.

Can journalists claim government immunity when acting closely with officials?

No. They may be treated as joint actors and held liable.

Why should journalists keep distance from law enforcement?

To protect impartiality and avoid liability as state actors.

What is the general rule for news gathering on private property?

Journalists cannot enter without permission, regardless of public interest in the story.

What key principle applies to journalists and public officials inviting them on private property?

Invitation can create implied consent, but consent is revocable by the property owner.

What is the main lesson from Wilson and Berger cases?

Journalists must maintain independence from law enforcement to avoid being liable for constitutional violations.

Why do journalists record interviews?

To quote sources accurately and have a verbatim record of conversations.

Is it legal to record a conversation if everyone knows it’s being recorded?

Yes, no legal problems arise if all parties know.

What makes a recording illegal?

Recording a conversation you’re not part of or without any party’s consent.

What is one-party consent?

Most states allow a journalist who is part of the conversation to record it without telling the other party.

Which 12 states require all-party consent for recording?

California, Connecticut, Florida, Illinois, Maryland, Massachusetts, Michigan, Montana, Nevada, New Hampshire, Pennsylvania, Washington.

Do all-party consent laws apply to phone calls?

Yes, private phone conversations are covered.

What happened with Illinois’ strict recording law?

Struck down in 2014 as overbroad, then revised to apply only to private conversations.

If a conversation crosses state lines, which law applies?

Usually the stricter state law applies (e.g., California).

Who can legally wiretap a conversation?

Only law enforcement with a court-issued warrant.

Are hidden cameras legal in private spaces?

No, especially in places with strong expectations of privacy, like gym locker rooms.

Can publishing info from illegally recorded conversations increase penalties?

Yes.

Is it legal for journalists to pose as someone else?

Yes, unless they pretend to be law enforcement.

Who was Nellie Bly and why is she famous?

A journalist who posed as a mentally ill patient to expose abuses in a mental asylum.

What ethical concerns come with posing?

It may involve deception, trespass, or breach of loyalty; editors and lawyers should be consulted.

What did ABC producers do in the Food Lion case?

They posed as employees, used hidden cameras, and investigated unsafe food practices.

What claims did Food Lion sue ABC for?

Fraud, trespass, breach of duty of loyalty, and unfair trade practices.

What was the court’s ruling in Food Lion case?

Trespass and breach of loyalty claims upheld ($2 total); fraud and unfair trade claims mostly thrown out.

What lesson does the Food Lion case teach journalists?

Posing or deception should be done cautiously and only with editor/legal guidance.

Can journalists exceed permission when undercover?

No. Exceeding permission (e.g., filming restricted areas) can lead to liability.

Key summary: Surreptitious recording vs. posing?

Recording: legal if one-party consents; illegal if no party consents or privacy violated.

Posing: legal unless pretending to law enforcement; ethical and legal risks exist if permission or loyalty breached.

What are the three elements of intrusion?

Intentional intrusion, into someone’s solitude/private affairs, that would be highly offensive to a reasonable person.

Is intrusion about the content gathered or the conduct used to get it?

The conduct.

Can someone be liable for intrusion even if they never publish the info?

Yes.

Can intrusion happen even if the info collected is true or harmless?

Yes.

Which is intrusion?

1. Reporter interviews ex-wife.

2. Reporter rummages through senator’s desk but publishes nothing.

3. Reporter rummages and publishes comic book story.

#2 and #3 (because rummaging is the intrusive act).

Does barging into a locked bathroom and recording someone count as intrusion even if they delete the video?

Yes — the act itself is the intrusion.

Classic intrusion case: what happened in Dorothy Barber’s case?

A photographer entered her hospital room and photographed her despite protests. She won $3,000.

What must a plaintiff show to sue for intrusion?

A reasonable expectation of privacy.

Expectation of privacy at an accident scene?

Low — it’s public and people expect media presence.

Expectation of privacy in a helicopter ambulance?

High — medical treatment areas are generally private.

Expectation of privacy in conversations with medical workers?

Depends on whether others can overhear.

Do people have a reasonable expectation of privacy in trash left outside?

No — once it’s out for pickup, it’s public.

Do workers in a phone psychic call center have a reasonable expectation of privacy?

Lower, because conversations can be overheard by other workers—but posing to access private areas may still be intrusion.

What counts as “highly offensive” intrusion?

Conduct that is substantial, repeated, or invasive (e.g., repeated calls, filming someone in medical distress).

Are journalists liable for aggressive newsgathering in public places?

Yes, if they harass or endanger others.

What happened in Wilson v. Layne (1999)?

Police violated the 4th Amendment by bringing media into a home during a warrant execution.

Can journalists be liable during police raids?

Yes—potentially for intrusion or helping violate the 4th Amendment.

Is posing as someone else illegal?

Not by itself—but posing to gain access to private spaces is intrusion.

What happened in the Food Lion case?

ABC employees lied to get jobs; Food Lion won only $2 for trespass and breach of loyalty.

One-party vs. all-party consent states?

Most states = one-party consent.
Twelve states = all-party consent (e.g., CA, FL, MA, IL…).

What did the Illinois Supreme Court strike down in 2014?

The state’s broad eavesdropping law.

What does Nebraska’s statute say about recording?

It’s not unlawful if one party to the conversation consents.

What is the third-party doctrine?

No expectation of privacy for info shared with a third party (phone co., bank, ISP, etc.).