Document Type
Article
Publication Date
11-1998
OCLC FAST subject heading
Freedom of the press
Abstract
The media’s use of intrusive newsgathering techniques poses an increasing threat to individual privacy. Courts currently resolve the overwhelming majority of conflicts in favor of the media. This is not because the First Amendment bars the imposition of tort liability on the media for its newsgathering practices. It does not. Rather, tort law has failed to seize the opportunity to create meaningful privacy protection. Most torts that affect newsgathering protect privacy only incidentally, and the tort of intrusion, which addresses newsgathering more directly, has been interpreted so narrowly that it provides little or no protection from the most common types of media harassment. More pointedly, tort laws failure to signal what types of newsgathering are prohibited makes the protection of privacy more the result of an economic calculus than a legal one. Invading privacy can be highly profitable. Wealthier segments of the media are therefore willing to incur the remote (but significant) risk of legal liability for using intrusive newsgathering techniques. After surveying the economic, philosophical, and practical obstacles to reform, this Article proposes to rejuvenate the tort of intrusion to tip the balance between privacy and the press back in privacy’s direction. Working within the framework of traditional tort law, this Article advocates reform of intrusion’s doctrinal flaws followed by the adoption of a "newsgatherer's privilege" to protect media intrusions that serve a significant public interest. The newsgatherer’s privilege would bring a degree of predictability to the resolution of intrusion cases by specifying the various factors relevant to the determination of whether or not newsgathering has crossed the line into invasion of privacy. The privilege would therefore achieve an appropriate accommodation between privacy and newsgathering without sacrificing the intrusion tort's adaptability to the various forms of prying, spying, and lying used by the media.
Recommended Citation
Lyrissa Barnett Lidsky, Prying, Spying, and Lying: Intrusive Newsgathering and What the Law Should Do About It, 73 Tul. L. Rev. 173 (1998).