Ch 12 mass media law

Which statement best captures the original idea behind the legal "right to privacy"?

It limits government power to regulate personal information.

Privacy is not explicitly mentioned in the U.S. constitution, but...

it underpins many freedoms.

Warren & Brandeis (1890)

ramed privacy as "the right to be let alone" — protecting emotional and psychological integrity

Early privacy theory

emerged as a reaction to new technology

Modern privacy debates mirror this tension

the tension between personal dignity and public curiosity

Why Is Privacy a Difficult Concept?

No single, clear definition- privacy varies by culture, context, and law

The Founders attitudes towards privacy

prioritized property and liberty, not solitude

what do courts struggle to balance?

struggle to balance press freedom, public interest, and individual seclusion

evolution of privacy

What society considers "private" evolves continually

letters-telephones-smartphones-data streams

"The Right to Privacy" (1890)

Law review article

written by Samuel Warren and Louis Brandeis, published

in Harvard Law Review, that is widely regarded

as one of the most influential essays in American law.

First publication in U.S. to advocate right to privacy,

which in authors' words mean "right to be left alone."

Samuel Warren and Louis Brandeis

proposed privacy as a moral and legal right

"the right to be let alone"

Key Idea behind "The Right to Privacy"

Privacy should protect the individual's peace of mind — not just property or reputation — from intrusive publicity

Privacy by the mid-20th century

privacy was recognized as a distinct tort (civil wrong)

Restatement (Second) of Torts §652 (ALI,1960s)

formally recognized four privacy torts:

intrusion, disclosure of private facts, false light, and appropriation

four privacy torts

These torts mirror the ways journalists, advertisers, and citizens can invade personal space

A central tension

individual seclusion vs.the public's right to know

Ethical journalism requires

distinguishing what the public is interested in from what is in the public interest

Privacy vs. The Right to Know example

journalists protected FDR's image by not photographing him in his wheelchair — a courtesy unlikely today

Common Law type of protection

Civil remedies for invasion of privacy

eg. intrusion, false light, disclosure, appropriation

Statutory Law type of protection

Federal and state privacy acts

eg. FERPA, HIPAA, COPPA, FCRA

Constitutional Law type of protection

Implied "zones of privacy" from the Bill of Rights

eg. griswold, roe, dobbs

Administrative Law type of protection

Agency rules enforcing privacy

eg. FTC and FCC data-handling regulations

Olmstead v. United States (1928)

Supreme Court allowed the use of wiretaps on telephone lines without a court order.

Justice Brandeis dissented: the constitution must protect the "right to be let alone" against emerging technologies

dissent laid the foundation for modern privacy doctrine

Privacy tied to physical space

Katz v. United States (1967)

Katz used a public phone booth to place illegal bets, which the FBI wiretapped without a warrant

fourth amendment protects people, not places

"reasonable expectation of privacy" test established

Carpenter v. United States (2018)

Government needs a warrant to collect location data from cellular service providers

Katz principle extended into the digital era

Extended privacy protection to digital data and metadata (cell tracking, GPS)

Griswold v. Connecticut (1965)

Court struck down a state law banning contraceptives for married couples

linked privacy to martial intimacy and individual choice

foundation for following reproductive-right cases

Roe v. Wade (1973)

constitutional right to abortion based on privacy and liberty interests in the Due Process Clause

Dobbs v. Jackson Women's Health (2022)

Overturned Roe, holding that privacy does not extend to abortion

roe v. wade & dobbs v. jackson women's health

privacy interpretations shift with judicial philosophy and social change

What did Griswold v. Connecticut establish?

Recognized a constitutional "right to privacy" in marital decisions.

Why does Griswold v. Connecticut matter for privacy law?

First case to find implied privacy rights in the"penumbras" (shadows) of several amendments (1st, 3rd,4th, 5th, 9th). Laid the foundation for modern privacy doctrine

Why does Roe v. Wade matter for privacy law?

Framed reproductive choice aspart of personal autonomy and liberty under the Due Process Clause of the 14th Amendment. Cemented privacy as a constitutional value

What did Roe v. Wade establish?

Extended privacy rights to include a woman's decision to terminate a pregnancy

What did Dobbs v. Jackson Women's Health establish?

Overturned Roe, holding that the Constitution does not confer a right to abortion.

Why does Dobbs v. Jackson Women's Health matter for privacy law?

Marked a major retraction of privacy rights, returning authority over reproductive privacy to the states. Shows that constitutional privacy is not absolute or permanent.

How is Common Law created?

Developed through judicial decisions and precedent — judges interpret and apply principles case by case

What does common law do?

Creates rules protecting individuals from other private parties (individuals, media, organizations) that can be cited in later cases

Examples of common law in privacy law

The four privacy torts (intrusion, false light, disclosure, appropriation)— originated from state court decisions following Warren & Brandeis (1890) and the Restatement of Torts.

How constitutional Law is created

Comes from judicial interpretation of theU.S. Constitution or state constitutions

What constitutional law does

Defines fundamental rights and limits government power, protecting individuals from government intrusion

Examples of constitutional law in privacy law

Griswold v. Connecticut (1965), Roe v. Wade (1973), and Dobbs v.Jackson (2022) — courts interpret constitutional "liberty" and "privacy."

When court recognizes a new rule through precedent

common law

When the court interprets the Constitution to protect a right

constitutional law

both common and constitutional law

Both come from the courts, but they operate at different levels of authority

FERPA

educational records - limits disclosure of student info

HIPAA

medical data- protects health privacy and access rights

FCRA

financial information- regulates credit reporting accuracy

protects from misuse of credit info

COPPA

children's online data- parental consent for under 13 users

FTC Oversight

digital commerce- polices deceptive data practices

modern privacy concerns

social media blurs private/public boundaries

AI, data mining, and facial recognition- threaten anonymity

Governments and corporations

collect massive personal data

Legal frameworks lag behind technology

"new technology demands new rights"

Privacy originated as a moral and emotional protection, but has evolved into

a legal right

bridges constitutional, statutory, administrative, and common law doctrines

privacy

The four privacy torts

1. False Light

2. Appropriation

3. Intrusion

4. Private Facts

Intrusion

invasion of private space or affairs

Disclosure

revelation of private but true facts

False Light

misleading or distorted portrayal

Appropriation

unauthorized commercial use of identity

What the torts form together

they form the common law foundation of privacy, focusing on personal seclusion and dignity, not reputation or government intrusion

Where did the four torts come from?

Emerged from state common law, not federal statute.

Focus of the Privacy Torts

protecting emotional and dignitary harm, rather than economic loss or reputation

What does the intrusion tort protect?

Freedom from physical or technological invasion

What does the public disclosure tort protect?

Protection against widespread revelation of private facts

What does the false light tort protect?

Protection against misleading portrayal

What does the appropriation tort protect?

Control over use of name, image, or likeness

Key limitation/defense/standard of intrusion tort

Consent; newsworthiness

Key limitation/defense/standard of public disclosure tort

Public record; consent

Key limitation/defense/standard of false light tort

Truth; actual malice (for public figures); negligence (for private figures)

Key limitation/defense/standard of appropriation tort

Consent; newsworthiness

Invasion

occurs when one intentionally intrudes, physically or otherwise, upon the solitude or private affairs of another

intrusion must be deemed to be

highly offensive to a reasonable person.

intrusion focuses on how information is gathered rather than

how the information is published

Hidden cameras, drones, and smart devices

have blurred the lines between physical and digital boundaries

in cases of intrusion with modern technology, courts examine:

Location: Did the person have a reasonable expectation of privacy?

Method: Was access achieved through deception, trespass, or technology?

Modern Intrusion trend

balancing public interest vs. personal seclusion

Consent as a Defense

Consent is a complete defense to intrusion or appropriation claims

How can consent be obtained?

through deception or duress may be invalid

expiration of consent

consent often expires with purpose

example: one-time or one-context use

Practical Rule (consent)

Always obtain informed consent when entering private spaces or using personal likenesses commercially.

Public Disclosure of Private Facts

Publishing true but private information that would be highly offensive to a reasonable person and not of legitimate public concern

Which tort is the most ethically challenging for journalists?

Public Disclosure

Cox Broadcasting v. Cohn (1975)

No liability for publishing info from public court records

Virgil v. Time, Inc (1976)

Magazines may publish unusual but newsworthy behavior if it relates to a public figure

Catsouras v. California Highway Patrol (2010)

Graphic accident photos shared by officers violated privacy

Modern Issues w/ Public Disclosure

Social media sharing and viral distribution multiply the harm of disclosure

When can public record defense be blurred?

when online access makes private info globally visible

emerging disclosure claims

Revenge porn, leaked medical info, and deepfake content

Key Concept of Public Disclosure

Truth is not a defense — the harm lies in the exposure itself.

What does false light do?

Portrays someone in a misleading or distorted way that would be highly offensive

False light vs. Defamation

Similar to defamation, but the statement may be technically true while creating a false impression

Time, Inc. v. Hill (1967) - false light case

Public figures must prove actual malice in false light cases

Cantrell v. Forest City Publishing (1974) - false light case

Fabricated interview violated false light standards

false light and defamation as a combined tort

Many states overlap false light with defamation; some do not recognize it as a separate tort

focus of false light vs. defamation

false light: offensiveness or humilation

defamation: damage to reputation

truth of false light vs. defamation

false light: may be true but misleading

defamation: must be false

harm of false light vs. defamation

false light: emotional distress

defamation: reputational loss

Appropriation (of Name or Likeness)

Using a person's name, image, voice, or identity for commercial gain without consent

Commercial Appropriation

Using someone's likeness in advertising or products

Right of Publicity

Protecting celebrities' ability to control and profit from their image