Amy Gadja’s “Privacy, Ethics and the Meaning of News”

I had just finished reading a solid editorial by Adam Cohen entitled “What’s on TV Tonight? Humiliation to the Point of Suicide?” Mr. Cohen says “Humiliation TV” pushes the boundaries of freedom of the press too far. He focuses on a court decision from this February in which a New York court let a lawsuit against NBC proceed for its role in a man’s suicide. NBC’s To Catch a Predator team had caught the man soliciting an online decoy posing as a 13-year-old boy. When it stormed his house together with the police he committed suicide. Justice Chin of the Federal District Court in New York rejected a motion to dismiss several claims made by the man’s sister and, in doing so, said that a jury might conclude that NBC “crossed the line from responsible journalism to irresponsible and reckless intrusion into law enforcement.”

I was then happy to stumble upon an academic paper from Amy Gaja, an Assistant Professor of Journalism & Law at University of Illinois College of Law. In “Privacy, Ethics and the Meaning of News,” Ms. Gaja raises the To Catch a Predator case an example of judicial reaction to the “coarsening” of the news: “If Woodward and Bernstein’s heroic sleuthing provides the iconic media image of the last generation, our own may well be the sprawling media encampment outside the gates of Paris Hilton’s estate.”

Dated March 5th, Ms. Gadja’s is very timely. Not only is it published on the heels of the high-profile American case, here in Ontario, our Court of Appeal just issued a decision which required it to evaluate the role of investigative journalism under our own constitution. (My report here.) The Court dismissed a charge that the disintermediation of news publication (the “citizen media” trend) weighed against an absolute confidential sources privilege, but nonetheless issued a decision which clearly renders the media’s investigative role subordinate to that of the state.

The Gadja paper is also excellent. Ms. Gadja thoroughly reviews the evolution of American courts’ willingness to immunize media defendants from privacy claims, a path she characterizes as having come full-circle as the media has matured from its early 20th century “yellow journalism” roots and appears now to be in a phase of regression. Although she acknowledges the media’s recent failure to self-police, Ms. Gadja argues that the First Amendment demands that courts allow a broad mesure of freedom in determining what can be published as news by setting a legal standard for sanction that sits well-below the media’s own ethical standards.

Though I have a different perspective, Ms. Gadja makes a compelling argument. What’s most interesting about her analysis – and the similar idea expressed in Adam Cohen’s editorial – is that it implies that the constitutional standard for freedom of the press ought to vary based on the trust that can be reasonably imposed in the media. To me, this brings the issue back to the internet, and the incredible economic pressure it is placing on traditional news organizations. Will consumers be willing to pay a “freedom of the press” premium to these organizations so they can afford to produce a product that keeps the courts at bay? Time will tell.

[Disclaimer. I actually have not yet tracked-down and read the February award in the To Catch a Predator Case. If you have a copy you are permitted to send me, please do. Thanks!]