Key Documents: Section I. Journalism, Media, and the Law - Privacy Protection

Introduction

Privacy protection has generally been considered perhaps the most nebulous and contentious area of media-related law. The word privacy does not appear anywhere in the U.S. Constitution or the Bill of Rights, and privacy law did not begin to evolve until 1890 when two lawyers, Louis Brandeis (a future Supreme Court justice) and Samuel Warren, wrote an article in the Harvard Law Review that argued for a “right to privacy” to keep “newspaper enterprise” from invading the “sacred precincts of private and domestic life.” In the decades to follow, most states passed statutes and courts generated a wide range of common law to regulate the right to privacy versus the First Amendment right of the press to foster a free flow of ideas and information. But privacy law did not get really organized until 1960 when law school dean William Prosser wrote an article that divided it into four distinct categories: appropriation (use of a name or likeness for commercial purposes), intrusion (intentionally interfering with another's solitude), private facts (publication of true and highly sensitive private information), and false light (intentionally publishing false and offensive material about an individual).

The Florida Star v. B. J. F. Supreme Court case dealt with issues that fell squarely in the private facts category. B. J. F., initials of a rape victim, filed a report containing her full name with the local sheriff's office that was left in the pressroom where a Florida Star reporter gained access to it. The newspaper ran a story based on the report that violated a state law prohibiting the publishing of names of sexual assault victims. B. J. F. won a settlement from the sheriff's office and a suit against the newspaper that went to a Florida appeals court. But Justice Thurgood Marshall, in a majority opinion for the Supreme Court, argued that the newspaper could not be punished in this instance because it published “truthful information” that was “lawfully obtained” and did not conflict with “a state interest of the highest order.”

Private facts suits, to be successful, usually must show that the information involved is both true and intimate in nature, becomes widely published or publicized, and would clearly be embarrassing to a reasonable person. In addition, the plaintiff must prove that these intimate facts are not of legitimate concern to the public. The Supreme Court here decided that the focus should be on the significance of the story's topic rather than the revealing of a person's name in desstermining legitimate concern to the public. In Florida Star v. B. J. F., the Court held that violent crimes are publicly significant subjects and should be addressed by the media even if the name of the victim appears.

—Glenn Lewis Volume Editor

U.S. Supreme court THE fLORIDA STAR v. B. J. f., 491 U.S. 524 (1989)

JUSTICE MARSHALL delivered the opinion of the Court.

Florida Stat. 794.03 (1987) makes it unlawful to “print, publish, or broadcast … in any instrument of mass communication” the name of the victim of a sexual offense. Pursuant to this statute, appellant The Florida Star was found civilly liable for publishing the name of a rape victim which it had obtained from a publicly released police report. The issue presented here is whether this result comports with the First Amendment. We hold that it does not.

...