Pur Autre Vie

I'm not wrong, I'm just an asshole

Wednesday, June 15, 2016

Newsworthiness Is Not Enough

I like privacy law.  In another life, I would be a privacy lawyer.  I also believe in privacy law, which is to say, I believe there are circumstances in which people should be punished for publishing true facts about the world.  I admit this is rightly controversial given the First Amendment, but it's what I believe.

Anyway I've been thinking about it, and I've decided that newsworthiness should probably not be a justification for violating someone's privacy, even when that person is a public figure.  In other words, the newsworthiness defense should be limited to the newsworthy facts and not to the entire event.  I'll give a few examples to illustrate my point.

It is indisputably newsworthy when a public figure gives birth.  Let's imagine that a female politician has given birth, and the New York Times reports the date of birth and the sex of the baby.  I would not under any circumstances think that the politician should be able to sue the New York Times for invasion of privacy, even if the politician would prefer to keep the facts about the birth private.  (Maybe the birth was premature.  Maybe the politician is unmarried and her pregnancy had not been reported previously.  Whatever.  I can't imagine any set of facts that would make the birth non-newsworthy.  Arguably aspects of the birth, like the birth weight or whether the baby has Down syndrome, should be considered private at least for a time.)

So we've established that the birth of the baby is newsworthy.  But now imagine that a news organization has obtained a close-up video of the politician's genitals during the birth, including the emergence of the baby.  Remember, the birth is newsworthy, so at first glance you might think that there should be no problem publishing this video.  But I think this should be viewed as a violation of privacy (unless, of course, the politician has consented to the publication of the video—query whether the infant has any privacy interest in the video, but we regularly allow people to publish embarrassing baby pictures, so presumably the answer is "no").  In other words, yes, the birth is newsworthy, but this doesn't vitiate the politician's privacy interest in a video of the birth.

I would apply roughly the same analysis to almost any medical procedure.  Some medical procedures might be sufficiently non-revealing that I would be inclined to let it slide, e.g., a video of a politician getting a flu shot or taking a vitamin pill.  But even if it is newsworthy that, say, a senator has gotten a prostate exam, I am not sure it should be legal to publish a video of the doctor inserting his finger into the senator's anus.  (As always, there is no privacy violation if the individual consents to the publication.)

Now I realize First Amendment purists won't find much to like in this post.  Can we really trust judges and juries to decide whether a video of a woman giving birth intrudes on her privacy?  Anyway, if it's newsworthy, shouldn't it be flatly legal to publish a video of it?  Difficult questions!  Ultimately I don't think there's a way to avoid messy line-drawing exercises.  But my own feeling is that newsworthiness shouldn't be a blanket justification for publishing videos of private moments in people's lives.


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