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The First Amendment Bubble

The First Amendment Bubble: How Privacy and Paparazzi Threaten a Free Press

Amy Gajda
Copyright Date: 2015
Published by: Harvard University Press
Pages: 270
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  • Book Info
    The First Amendment Bubble
    Book Description:

    For decades, privacy took a back seat to the public’s right to know. But as the Internet and changing journalism have made it harder to distinguish news from titillation, U.S. courts are showing new resolve in protecting individuals from invasive media scrutiny. As Amy Gajda shows, this judicial backlash is now impinging on mainstream journalists.

    eISBN: 978-0-674-73570-5
    Subjects: Law

Table of Contents

  1. Front Matter
    (pp. i-vi)
  2. Table of Contents
    (pp. vii-viii)
  3. Preface
    (pp. ix-xii)
  4. 1 An Introduction
    (pp. 1-23)

    Hulk Hogan, born Terry Bollea, is a professional wrestler. His bigger-than-life personality, halo of long white hair, and career that includes professional wrestling and reality television—both of which can be as far from real as can be—have made him an American icon.

    They have also made him a media magnet.

    In fall of 2012, Gawker, a website that boasts that its gossip today will make mainstream news headlines tomorrow, posted parts of a hidden camera video with audio of Hulk Hogan fully nude and engaging in sexual activity with a woman on a bed in somebody else’s house....

  5. 2 Legal Protections for News and Truthful Information: The Past
    (pp. 24-49)

    The cover of the June 1940 edition ofHeadquarters Detective: True Cases from the Police Blottermagazine features a pale young woman bound to a chair. Her eyes are wide and her mouth is open as if terrified at what she sees off-cover. One of the straps of her tight, flimsy nightgown has fallen down her arm, making it seem as though her left breast will soon be exposed. The cover is mostly black and white, save for two red-highlighted articles: “Trailing the Tourist Camp Killers!” and “Slave to a Love Cult.” Articles inside are headlined “Murder in the AIR!,”...

  6. 3 Legal Protections for News and Truthful Information: The Present
    (pp. 50-87)

    InFlorida Star,one of the Supreme Court cases involving media identification of a rape victim, there was one horrifying fact on which the Supreme Court majority did not dwell: after publication of the article that had named the victim, a man had menacingly called her home to warn that she would soon be raped again. The newspaper’s release of the victim’s identity, therefore, had presumably caused her to be doubly victimized.

    Justice Byron White, no fan of journalism since his college and professional football days when eager sports writers had dubbed him “Whizzer White,” held fast to that fact...

  7. 4 The Devolution of Mainstream Journalism
    (pp. 88-121)

    If indeed the tide is turning against all media, mainstream media itself is in part to blame. One example to start this chapter: the growing use of mug shot galleries within mainstream news publications.

    A small number of photo galleries, for example, are always a part of theChicago Tribune’s website’s main page.¹ Three of the four photo galleries, or five of the six, change regularly to reflect interesting news stories of the day, upcoming events, or sports-related matters. The final is a fixture. It is titled “Mugs in the news” and it is a rogues gallery of unfortunates who...

  8. 5 The Rise, and Lows, of Quasi-Journalism
    (pp. 122-155)

    If developments in mainstream media have the potential to push the protective First Amendment bubble even closer to the breaking point, then emerging practices of quasi-journalism seem determined to break it. In some ways, they already have.

    Quasi-journalism is a term meant to describe those publishers that publish truthful information outside the context of traditional mainstream journalism; a simple word like “publisher” often serves as a synonym but would be too broad to use routinely here. Traditionally, journalism’s qualities are said to be “impact, immediacy, proximity, prominence, novelty, conflict, and emotion.”¹ Some experts add “mystery, drama, adventure, celebration, [and] self-improvement.”²...

  9. 6 The New Old Legal Call for Privacy
    (pp. 156-190)

    A California woman who had been diagnosed with bipolar disorder occasionally missed work in 2008 due to her condition. No one in her real estate office workplace other than her boss knew of the diagnosis until he allegedly shared the information with coworkers. After that, one of them asked the woman if she would “go postal” someday. Upset that her boss had apparently violated her trust, the woman sued for invasion of privacy.¹

    This employment privacy case, noted briefly in Chapter 3, had absolutely nothing at all to do with media, and yet, ultimately, a California appeals court seized it...

  10. 7 The First Amendment Bubble, Absolutism, and Hazardous Growth
    (pp. 191-221)

    At a time when a perfect storm seems to be brewing against journalism—including disruption of its business model by technological change and shifting market tastes, intensifying competition from a diverse range of digital rivals, and rising concerns in courtrooms and otherwise about threats to privacy—many in media appear not to fully comprehend the welling danger, trusting in the First Amendment to fend off the new demands for public accountability.

    This self-confidence is based in part upon the broad terms of the First Amendment and the bulwark of protective constitutional doctrine built up by the U.S. Supreme Court during...

  11. 8 Drawing Difficult Lines
    (pp. 222-260)

    In 1956, William Prosser, the scholar whose research shaped the way we define privacy wrongs today, suggested that legal protection against intentional infliction of emotional distress was receiving greater acceptance in the nation’s courts as a freestanding tort.

    He noted that the law in general often changed in response to social conditions, as it had with the acceptance of the tort of intentional infliction of emotional distress. There, interest in protecting individuals from emotional harm began to trump concern rooted in First Amendment freedom of expression when the challenged actions were horrendous enough. “[A] s in many other hard cases,”...

  12. Notes
    (pp. 263-292)
  13. Acknowledgments
    (pp. 293-294)
  14. Index
    (pp. 295-302)