How Brandeis' theories affected media law.

1. A closer look at privacy
How Brandeis’ theories
have affected media law

2. Four types of privacy law

3. Four types of privacy law
• Commercial appropriation of name or
likeness

4. Four types of privacy law
• Commercial appropriation of name or
likeness
• Public disclosure of embarrassing private
facts

5. Four types of privacy law
• Commercial appropriation of name or
likeness
• Public disclosure of embarrassing private
facts
• False light

6. Four types of privacy law
• Commercial appropriation of name or
likeness
• Public disclosure of embarrassing private
facts
• False light
• Intrusion upon physical seclusion

7. Appropriation
• Dustin Hoffman case shows there can be a
fine line between commercial and editorial
use

8. Appropriation
• Dustin Hoffman case shows there can be a
fine line between commercial and editorial
use
• A magazine cover may not be protected if it
doesn’t pertain to contents

9. Not protected

10. Protected
“Obama, Biden, and Geithner”

11. Protected
• But is Warhol’s art truly transformative?

12. Disclosure of private facts

13. Disclosure of private facts
• Embarrassing private facts

14. Disclosure of private facts
• Embarrassing private facts
• Not newsworthy

15. Disclosure of private facts
• Embarrassing private facts
• Not newsworthy
• Highly offensive

16. Disclosure of private facts
• Embarrassing private facts
• Not newsworthy
• Highly offensive
• To a reasonable person

17. False light

18. False light
• “Libel Jr.”

19. False light
• “Libel Jr.”
• Individual represented in a false and highly
offensive manner before the public

20. False light
• “Libel Jr.”
• Individual represented in a false and highly
offensive manner before the public
• Unlike libel, false-light claims seek
compensation for personal anguish and
embarrassment

21. Intrusion

22. Intrusion
• Intentional invasion

23. Intrusion
• Intentional invasion
• Of a person’s physical seclusion or private
affairs

24. Intrusion
• Intentional invasion
• Of a person’s physical seclusion or private
affairs
• In a manner that would be highly offensive

25. Intrusion
• Intentional invasion
• Of a person’s physical seclusion or private
affairs
• In a manner that would be highly offensive
• To a reasonable person

26. Newsgathering
and publication
• Intrusion pertains solely to newsgathering

27. Newsgathering
and publication
• Intrusion pertains solely to newsgathering
• Similar to trespassing — Miller v. National
Broadcasting Co.

28. Newsgathering
and publication
• Intrusion pertains solely to newsgathering
• Similar to trespassing — Miller v. National
Broadcasting Co.
• Material improperly gathered may often be
published or broadcast — Shulman v.
Group W

29. Other privacy torts
• Fraud
– Food Lion v. ABC

30. Other privacy torts
• Fraud
– Food Lion v. ABC
• Emotional distress
– Hustler Magazine v. Falwell

31. Other privacy torts
• Fraud
– Food Lion v. ABC
• Emotional distress
– Hustler Magazine v. Falwell
• Outrage
– Armstrong v. H&C Communications

32. Other privacy torts
• Fraud
– Food Lion v. ABC
• Emotional distress
– Hustler Magazine v. Falwell
• Outrage
– Armstrong v. H&C Communications
• Wiretapping
– One-party states and two-party states

33. Hoffman v. Capital Cities/ABC
• Los Angeles Magazine
“crossed the line”
between editorial and
commercial use

34. Hoffman v. Capital Cities/ABC
• Los Angeles Magazine
“crossed the line”
between editorial and
commercial use
• A reasonable
decision? Or is the
judge playing editor?

35. McNamara v. Freedom
Newspapers
• Soccer player photographed with genitals
exposed

36. McNamara v. Freedom
Newspapers
• Soccer player photographed with genitals
exposed
• Judge Benavides: “[A] factually accurate
public disclosure is not tortious when
connected with a newsworthy event”

37. McNamara v. Freedom
Newspapers
• Soccer player photographed with genitals
exposed
• Judge Benavides: “[A] factually accurate
public disclosure is not tortious when
connected with a newsworthy event”
• Parallels to Dustin Hoffman case?

38. The Florida Star v. B.J.F.
• Highlights difference between ethics and
the law
– The Florida Star’s own ethics policy was
violated by publishing name
– Victim suffered serious harm from the Star’s
actions

39. The Florida Star v. B.J.F.
• Highlights difference between ethics and
the law
• Media cannot be punished for naming rape
victims and juveniles
– Cox Broadcasting Corp. v. Cohn (1975)
– Oklahoma Publishing Co. v. District Court
(1977)
– Smith v. Daily Mail Publishing (1979)

40. The Florida Star v. B.J.F.
• Highlights difference between ethics and
the law
• Media cannot be punished for naming rape
victims and juvenile
• Marshall’s three grounds
– Information was lawfully obtained
– Information was publicly available
– “Timidity and self-censorship” could result

41. Diaz v. Oakland Tribune
• Was Toni Ann Diaz’s transgender status
newsworthy or not? Three-part test
– Social value of facts published
– Depth of intrusion into private affairs
– Extent to which person voluntarily courted
notoriety

42. Diaz v. Oakland Tribune
• Was Toni Ann Diaz’s transgender status
newsworthy or not?
• Judge Barry-Deal says Diaz’s status was not
newsworthy, citing “attempt at humor”

43. Diaz v. Oakland Tribune
• Was Toni Ann Diaz’s transgender status
newsworthy or not?
• Judge Barry-Deal says Diaz’s status was not
newsworthy, citing “attempt at humor”
• Entirely true story about the president of a
college’s student body

44. Diaz v. Oakland Tribune
• Was Toni Ann Diaz’s transgender status
newsworthy or not?
• Judge Barry-Deal says Diaz’s status was not
newsworthy, citing “attempt at humor”
• Entirely true story about the president of a
college’s student body
• Is Judge Barry-Deal playing editor?

45. Shulmanv. Group W Productions
• Shulman sues on two grounds
– Disclosure of private facts
– Intrusion

46. Shulmanv. Group W Productions
• Shulman sues on two grounds
• Judge Werdegar throws out private-facts
claim on grounds that judges can’t act as
“superior editors”

47. Shulmanv. Group W Productions
• Shulman sues on two grounds
• Judge Werdegar throws out private-facts
claim on grounds that judges can’t act as
“superior editors”
• Allows intrusion claim to move forward

48. No special protection
for newsgathering
• Miller v. National Broadcasting Co.
– Intrusion into a private place
– In a manner that is highly offensive to a
reasonable person

49. No special protection
for newsgathering
• Miller v. National Broadcasting Co.
• Branzburg v. Hayes and Cohen v. Cowles
Media
– Judge Werdegar: “[T]he press in its
newsgathering activities enjoys no immunity or
exemption from generally applicable laws”

50. No special protection
for newsgathering
• Miller v. National Broadcasting Co.
• Branzburg v. Hayes and Cohen v. Cowles
Media
• Judge Werdegar: Group W’s story is
constitutionally protected, but not its
reporting techniques

51. No special protection
for newsgathering
• Miller v. National Broadcasting Co.
• Branzburg v. Hayes and Cohen v. Cowles
Media
• Judge Werdegar: Group W’s report is
constitutionally protected, but not its
reporting techniques
• Should such reporting be protected?

52. Hustler Magazine v. Falwell
• Libel claim
rejected, Supreme
Court considers claim
of emotional distress

53. Hustler Magazine v. Falwell
• Libel claim
rejected, Supreme
Court considers claim
of emotional distress
• Justice Rehnquist
cautions against trying
to play editor

54. Hustler Magazine v. Falwell
• Libel claim
rejected, Supreme
Court considers claim
of emotional distress
• Justice Rehnquist
cautions against trying
to play editor
• Recourse?

55. Armstrong v. H&C
Communications
• A literally outrageous case

56. Armstrong v. H&C
Communications
• A literally outrageous case
• Florida law against “outrage” punished a
true report about a newsworthy story

57. Armstrong v. H&C
Communications
• A literally outrageous case
• Florida law against “outrage” punished a
true report about a newsworthy story
• What do you think?