Amy Gajda is the Class of 1937 Professor of Law at Tulane University Law School and a former journalist.
A little more than a decade ago, an Oklahoma television news program broadcast 39 seconds of a woman’s rape. The news story featured “brief shots of [the woman’s] naked feet and calves,” and it depicted her naked attacker “moving above and around [her] obscured body.”1
The woman sued the station for invasion of privacy and lost. The federal trial court explained that the rape itself was newsworthy and that the broadcast of the videotape had news value because it proved to viewers both that the rapist was identifiable and that he had videotaped his crime. Moreover, the court explained that it could not “appropriately engage in after-the-fact judicial ‘blue-penciling,’” lest the press be chilled in its freedom to decide what is news.
Horrifying. But as Kate Klonick points out in her essay “Facebook v. Sullivan,” courts had for years deferred to the media in privacy cases, fearful of undermining the First Amendment by second-guessing journalism. A pro-press outcome like the one in the Oklahoma case was also made easier by the fact that there was and is no clear definition in the law of what qualifies as newsworthy. Even though the Supreme Court has repeatedly suggested that some sort of line protecting privacy over press freedom is appropriate—explaining that “there is a zone of privacy surrounding every individual, a zone within which the State may protect him from intrusion by the press, with all its attendant publicity”2 —the Court itself has never drawn that line.3
The Restatement (Second) of Torts, meanwhile, unhelpfully suggests that journalists’ publication decisions help to define newsworthiness4 and that news includes information “of more or less deplorable popular appeal” but not “morbid and sensational prying for its own sake.”5 And the Restatement offers such guidance only after suggesting that Supreme Court precedent may not allow for any balancing against individual privacy interests at all.6
All this leaves courts confused and searching for additional guidance. Compare that Oklahoma ruling favoring the press—one that supported a journalist’s decision to reveal what another court later called “the most private of matters: namely [the plaintiff’s] body being forcibly violated”7— to a 2008 ruling favoring privacy, Conradt v. NBC Universal, Inc.8 Conradt involved the Dateline NBC program “To Catch a Predator,” a show that filmed unsuspecting men as they attempted to meet in person the underage “children”9 they had engaged with online in graphically sexual language.
One of the men, who turned out to be a county prosecutor and therefore a public official, killed himself as police arrived to arrest him for child sex solicitation. Blaming NBC for her brother’s suicide, his sister sued on his behalf, arguing that Dateline journalists had intentionally inflicted emotional distress upon him.
The federal trial court sided with the sister. “NBC was in a position of power, both with its ability to disseminate information to the public and with its apparent influence over the police,” the court wrote, “and NBC knew or should have known that Conradt was peculiarly susceptible to emotional distress and suicide.”10 The court also found that NBC had arguably violated journalism’s ethics codes and that such a violation would further support liability. After reciting the ethics standards of the Society of Professional Journalists (SPJ) that it found relevant,11 the court suggested how each had been broken:
[A] reasonable jury could find that Dateline violated some or all of these standards by failing to take steps to minimize the potential harm to Conradt, by pandering to lurid curiosity, by staging (or overly dramatizing) certain events, by paying [a group of online vigilantes with which it worked] and providing equipment and other consideration to law enforcement, by failing to be judicious about publicizing allegations before the filing of charges, by advocating a cause rather than independently examining a problem, and by manufacturing the news rather than merely reporting it.12
This is horrifying in a different way. Read broadly, the court held that the news value of a public official’s arrest could be outweighed by that official’s interest in privacy, as long as the court found the arrest to involve “lurid curiosity” and inappropriate media–police interaction. Why did news coverage of a prosecutor’s arrest on child sex solicitation charges lead to a successful privacy-based claim against the media, when the privacy claim of a crime victim—a woman whose rape just happened to be videotaped by the perpetrator—was summarily dismissed?
The answer lies in the absence of clear norms regarding newsworthiness. Not only has the Supreme Court been wary of drawing such lines, there aren’t that many relevant lower court cases either. In the past, the journalism profession routinely defined and enforced its own ethics standards—and when journalists pushed the boundaries, courts mostly gave them the benefit of the doubt, concerned more about a chilling effect on the media than on harm to an individual. As long as journalists stuck to the standards of their field, courts treated them with deference.
Today, however, things have changed. Most online publishers are not journalists who have internalized a widely shared set of professional values and boundaries. These new publishers post on social media and on millions of websites everything from incisive comments on news stories to callously devastating revenge porn. Walter Cronkite has been replaced by “To Catch a Predator,” which in turn has been replaced by websites that extort people with mugshots.
At the same time, the interest in privacy protection has grown, both culturally and in the courts. “Today,” the Ohio Supreme Court wrote a few years ago, “thanks to the accessibility of the Internet, the barriers to generating publicity are slight, and the ethical standards regarding the acceptability of certain discourse have been lowered.”13 The Ohio justices then recognized a certain privacy-related tort (“false light”) for the first time, explaining that “[a]s the ability to do harm has grown, so must the law’s ability to protect the innocent.”14
Against this backdrop, Facebook’s increasingly explicit ambition to assess newsworthiness is both interesting and troubling.
What makes it interesting is that, as the Restatement reflects, newsworthiness norms have traditionally been determined by journalists and publishers themselves, and in crafting these norms, journalism codes of ethics strive to balance press rights and privacy rights. The SPJ’s Code of Ethics, for example, includes the seemingly conflicting mandates to “Seek Truth and Report It” and to “Minimize Harm,” with the suggestion that the two may need to be balanced in any given news story.15 When courts knew that journalists were guided by professional codes that urged both that individuals be held “accountable” and that they be treated with “compassion,”16 judges were inclined to stay out of the way.
But this balance now resides in unfamiliar and, therefore, dangerous hands, as the Conradt case suggests. The SPJ has become sufficiently concerned about courts’ search for newsworthiness norms that it now appends to its ethics code the following warning: “The code should be read as a whole; individual principles should not be taken out of context. It is not, nor can it be under the First Amendment, legally enforceable.”17
Which is why Facebook’s role as an arbiter of newsworthiness is also troubling. As Klonick points out, given the central role Facebook plays as a source of news and information for large swaths of the public, its decisions to restrict information carry obvious significance for the democratic process.
But there is more. If certain judges, upset with today’s media excesses, appear willing to use prevailing publishing standards against the media, and if questions of newsworthiness must be decided by someone other than the publishers themselves in order to protect privacy, then Facebook’s standards could offer courts guidance and conceivably one day become law. Put another way, if the Conradt court decided that the SPJ and its approximately 7,500 members18 should help guide newsworthiness determinations, why not Facebook, which has more than 200 million users in the United States alone?19 These users arguably approve of Facebook’s assessments of news value to at least some extent, and as the Restatement suggests, newsworthiness considerations should include “customs and conventions of the community”20 and community “mores.”21
What this means is that Facebook’s decisions on what to keep up and what to take down could well do more than establish what we read about and know about on the Facebook platform. Facebook’s standards could help establish what we as a society deem newsworthy, ultimately helping courts decide in a legal sense the future of news.
This prospect is deeply troubling on a press-rights front. Klonick’s essay does not say much about the background of the Facebook employees who make newsworthiness decisions. Are they trained in journalism? Do they understand that the most important stories are also, at times, the most harmful to particular individuals? Do they consider the same things that journalists do when journalists consider what to publish? Do they believe, in the words of the SPJ code’s preamble, “that public enlightenment is the forerunner of justice and the foundation of democracy”?
Facebook’s newsworthiness assessments are troubling on a privacy front as well. While there are risks from Facebook being too aggressive in restricting information, there are also risks from Facebook being too permissive in allowing publication of potentially harmful information—risks that seem to be on the rise.
Klonick’s essay initially describes Facebook’s application of the newsworthiness concept in a way that might well parallel journalism's ethics codes, weighing “the value of ‘voice’ against the risk of harm.” She further notes that “every suggestion of possible newsworthy content is made by a person” at Facebook and evaluated “on a case-by-case basis.” That sounds pretty much like what happens in newsrooms every day.
But Klonick then explains that Facebook’s newsworthiness assessments might actually tip in favor of “allowing more items that people find newsworthy, significant, or important to the public interest,” even if these items violate Facebook’s “Community Standards.” Words like “significant” and “public interest” in this formulation threaten privacy rights. So does the suggestion that newsworthiness determinations may effectively be crowdsourced. Consider, for example, the 17 million people who reportedly looked at a video taken of sportscaster Erin Andrews, naked, surreptitiously recorded through a peephole in her hotel room.22 A large number of people apparently found that highly invasive footage to be significant and interesting.
As Klonick rightly warns, there are no easy answers for Facebook about how to strike an appropriate balance between the protection of the individual and the free flow of information. Nonetheless, a more sensitive approach of some sort—one not so focused on Google News search results or on the elusive public figure/private figure distinction—is critical for two main reasons. First, as outlined above, any test has at least some potential to become law and, therefore, must be mindful of both press rights and privacy rights. And second, should Facebook fail to take down privacy-invading posts, it could further irritate an already privacy-interested and media-condemning judiciary, leading to further narrowing of the meaning of news and, just as early courts warned, chilling journalism.
In recent work, I have argued for an updated press–privacy balancing test, suggesting that courts reject newsworthiness protection for things traditionally kept private in the United States, such as gratuitous nudity, gratuitous graphic sexual information, and gratuitous private medical information.23 At the dawn of the internet age, the Seventh Circuit described information that should be off-limits in more general terms: intimate information that, if revealed, would be considered embarrassing, painful, and “deeply shocking to the average person.”24 Admittedly, even these lines would need to be crossed at times, and there is certainly an element of subjectivity in the word “gratuitous.”
But again, there are no easy answers in this area. The Supreme Court has observed that in the “sphere of collision between claims of privacy and those of the free press, the interests on both sides are plainly rooted in the traditions and significant concerns of our society.”25 For the sake of privacy and the press alike, Facebook must strive to minimize the impact of such collisions, and one place to begin is by adopting a clearer test for newsworthiness.
1 The facts and case description are from Anderson v. Blake, No. CIV-05-0729-HE, 2006 WL 314447 (W.D. Okla. Feb. 9, 2006).
2 Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 487 (1975).
3 See, e.g., Florida Star v. B.J.F., 491 U.S. 524, 533 (1989) (“We continue to believe that the sensitivity and significance of the interests presented in clashes between First Amendment and privacy rights counsel relying on limited principles that sweep no more broadly than the appropriate context of the instant case.”).
4 Restatement (Second) of Torts § 652D cmt. g (1977).
5 Id. § 652D cmt. g, h.
6 Id. § 652D, Special Note on Relation of § 652D to the First Amendment to the Constitution.
7 Anderson v. Blake, 469 F.3d 910, 914 (10th Cir. 2006).
8 536 F. Supp. 2d 380 (S.D.N.Y. 2008).
9 The “children” were really adults posing as tweens.
10 Conradt, 536 F. Supp. 2d at 397.
11 Id. at 397–98.
12 Id. at 398.
13 Welling v. Weinfeld, 866 N.E.2d 1051, 1058–59 (Ohio 2007).
14 Id. at 1059.
15 SPJ Code of Ethics, Soc’y of Prof. Journalists, https://www.spj.org/ethicscode.asp (last updated Sept. 6, 2014).
18 About SPJ, Soc’y of Prof. Journalists, https://www.spj.org/aboutspj.asp (last visited Oct. 26, 2018).
19 Number of Facebook Users by Age in the U.S. as of January 2018 (in Millions), Statista (2018), https://www.statista.com/statistics/398136/us-facebook-user-age-groups.
20 Restatement (Second) of Torts § 652D cmt. h (1977).
21 Id. § 652D cmt. g.
22 Emily Kaplan, The Pain You Can’t See, Sports Illustrated (Jan. 24, 2017), https://www.si.com/mmqb/2017/01/24/erin-andrews-cervical-cancer-diagnosis-hotel-stalker-civil-trial-privacy-laws-fox-dancing-stars.
23 See, e.g., Amy Gajda, Privacy, Press, and the Right to Be Forgotten in the United States, 93 Wash. L. Rev. 201, 262 (2018).
24 Haynes v. Alfred A. Knopf, Inc., 8 F.3d 1222, 1234–35 (7th Cir. 1993).
25 Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 491 (1975).