Chapter 5 Privacy and Personal Security
True/False Questions
1) The founders stipulated in the Constitution that the Bill of Rights protects a "right of privacy."
Answer: False
Rationale:
This statement is false. The Constitution does not explicitly mention a right to privacy. However, the right to privacy has been interpreted by the courts, particularly through the Fourth Amendment's protection against unreasonable searches and seizures, and through various Supreme Court rulings.
2) In Florida Star v. BJF, the Supreme Court ruled that the media can rarely be punished for publishing truthful, lawfully acquired information about an matter of public importance.
Answer: True
Rationale:
This statement is true. In Florida Star v. BJF, the Supreme Court ruled that punishing the media for publishing truthful information obtained legally about a matter of public concern is a violation of the First Amendment. However, there may be exceptions if the publication of such information causes harm, but these exceptions are very narrow.
3) The Supreme Court has ruled a citizen has NO privacy claim if private information is revealed in a public court record.
Answer: True
Rationale:
This statement is true. The Supreme Court has held that there is generally no expectation of privacy regarding information contained in public court records. Once information enters the public domain through court proceedings, individuals have limited privacy protections over that information.
4) Businessman Bob is on a trip with a lover his wife does not know about. Photographer Paul shoots a picture of Bob and his lover on a public beach. Bob should be able to sue successfully for intrusion.
Answer: False
Rationale:
This statement is false. In situations where individuals are in public spaces where there is no expectation of privacy, such as a public beach, they generally have limited recourse for invasion of privacy claims, especially if the photograph was taken without trespassing or other illegal means.
5) Once private information becomes newsworthy, it may remain newsworthy for years.
Answer: True
Rationale:
This statement is true. Once private information becomes newsworthy, its relevance to the public interest may extend over a significant period. Newsworthiness is determined by various factors, and if the information remains pertinent to public discourse or interest, it can continue to be considered newsworthy over time.
6) In Hustler Magazine v. Falwell, the Supreme Court ruled a public figure may successfully sue the media for intentional infliction of emotional distress if the publication is "outrageous."
Answer: False
Rationale:
This statement is false. In the case of Hustler Magazine v. Falwell, the Supreme Court held that public figures cannot recover for intentional infliction of emotional distress without showing that the publication in question contains false statements of fact made with actual malice.
7) It is legal in a majority of states for a participant to secretly record a conversation.
Answer: True
Rationale:
This statement is true. In many states, only one party needs to consent to the recording of a conversation for it to be legal. Therefore, if one party to the conversation (usually the person doing the recording) consents to the recording, it is generally considered legal, even if done secretly.
8) It is unlawful for journalists to tap telephones.
Answer: True
Rationale:
This statement is true. Tapping telephones without proper authorization is illegal and constitutes a violation of privacy laws. Journalists, like any other individuals, are subject to these laws and may face legal consequences if they engage in unauthorized telephone tapping.
9) Zacchini v. Scripps-Howard Broadcasting Co., the human cannonball case, teaches that broadcasters are at risk of commercial appropriation if they broadcast an entertainer's entire act on a news show.
Answer: True
Rationale:
This statement is true. In Zacchini v. Scripps-Howard Broadcasting Co., the Supreme Court ruled that broadcasting an entertainer's entire act, such as a human cannonball performance, without permission could constitute commercial appropriation and infringe upon the entertainer's right to control the commercial value of their act.
10) The Supreme Court has ruled that publication of the name of a rape victim violates a woman's privacy if authorities mistakenly release the name to the public.
Answer: False
Rationale:
This statement is false. The Supreme Court has generally held that the publication of truthful information, even if it pertains to sensitive matters such as sexual assault, may be protected under the First Amendment. However, many states have laws protecting the identity of sexual assault victims, and media organizations often voluntarily refrain from publishing such information out of ethical considerations.
11) Unauthorized commercial appropriation of someone's identity can occur in print advertisements but usually not in news stories?
Answer: True
Rationale:
This statement is true. While unauthorized commercial appropriation of someone's identity, such as using their likeness for commercial purposes without consent, can occur in print advertisements and other commercial contexts, it is less likely to occur in news stories where the use of a person's identity is typically for informational or newsworthy purposes rather than commercial gain.
12) The Supreme Court has ruled that journalists have a privilege to accompany public officials onto private property if the officials have a search warrant.
Answer: False
Rationale:
This statement is false. Journalists generally do not have a special privilege to accompany public officials onto private property, even if those officials possess a search warrant. While journalists may have rights under the First Amendment to gather news and report on matters of public interest, those rights do not override private property rights or the execution of lawful search warrants.
13) A photographer for the campus newspaper, the Blowtorch, took an award-winning photo of Olympic diver Lotta Wett. The Blowtorch can lawfully publish the photo without Wett's permission to promote itself, to advertise the great photography readers will find regularly in the Blowtorch.
Answer: True
Rationale:
This statement is true. In general, photographs taken in public places where there is no reasonable expectation of privacy can be published without the subject's permission, especially for purposes such as news reporting or promoting the publication's content. As long as the photo was taken in a public place and does not depict Wett in a false light or invade her privacy, the publication of the photo by the Blowtorch would likely be lawful.
14) Some states recognize a right of publicity for the estates of dead celebrities.
Answer: True
Rationale:
This statement is true. Many states have laws recognizing a post-mortem right of publicity, which allows the estates of deceased individuals, including celebrities, to control the commercial use of their likeness, image, or persona. These laws aim to protect the economic interests and reputation of deceased individuals and may provide legal recourse for unauthorized commercial exploitation of their identity.
15) Plaintiffs claiming they were cast in a false light in an issue of public interest must prove the publication was made with actual malice.
Answer: True
Rationale:
This statement is true. In cases of false light invasion of privacy, plaintiffs typically must prove that the publication was made with actual malice, meaning that the defendant published the false information with knowledge of its falsity or with reckless disregard for the truth. This standard is similar to the one used in defamation cases involving public figures.
16) Employees who smile for the camera have given consent for their photos to be printed in company brochures and advertisements.
Answer: False
Rationale:
This statement is false. Merely smiling for a camera does not necessarily constitute explicit consent for the use of one's image in company brochures or advertisements. Consent should be obtained explicitly, preferably in writing, to ensure that individuals understand and agree to the use of their likeness for promotional purposes.
17) Journalists and public relations practitioners hoping to avoid private facts suits should be especially careful to get permission when publishing personal medical information, particularly information about children.
Answer: True
Rationale:
This statement is true. When publishing personal medical information, especially concerning sensitive matters or involving children, journalists and public relations practitioners should obtain explicit consent from the individuals involved or their legal guardians. Failure to do so may expose them to potential liability for invasion of privacy or other legal claims.
18) Broadcasters must cut the most violent or dangerous conduct because they have a duty to foresee the harm that may result when viewers copy violent and dangerous programming.
Answer: False
Rationale:
This statement is false. While broadcasters may have some ethical considerations regarding the content they air, they generally do not have a legal duty to censor violent or dangerous conduct solely based on the potential for viewers to mimic such behavior. However, broadcasters may face regulatory scrutiny if their content violates specific standards set by broadcasting regulations or if it incites imminent lawless action.
Multiple Choice Questions
1) If a viewer copies a violent act he sees on television, the victim can probably successfully sue the broadcaster for
A) emotional distress.
B) copycat harm.
C) outrage.
D) negligence.
E) None of the above.
Answer: E
Rationale:
The scenario described relates to the concept of causation and liability. While the broadcaster may have some ethical responsibility for the content aired, legal liability typically does not extend to situations where a viewer imitates actions seen on television. The responsibility for such actions would primarily lie with the individual who committed them.
2) To win a private facts suit, a plaintiff must prove the publication
A) is disgusting to the average person.
B) is highly offensive to a reasonable person.
C) injures the plaintiff's reputation.
D) All of the above.
E) None of the above.
Answer: B
Rationale:
In a private facts lawsuit, the plaintiff must demonstrate that the publication of private information was highly offensive to a reasonable person. The focus is on the offensiveness of the publication rather than its impact on the plaintiff's reputation.
3) Mary Cassandra is walking down a public sidewalk holding hands with her boyfriend, Ralph. Tommy Snapper, a newspaper photographer, shoots a picture from across the street and publishes it in the Banner-Guardian with a story about downtown redevelopment. After seeing the photo, Ralph's wife divorces him. Ralph will likely recover damages from the newspaper for which tort?
A) Commercial appropriation
B) Intrusion
C) Emotional distress
D) Ralph could probably successfully sue for all of the above.
E) None of the above.
Answer: E
Rationale:
In this scenario, since Mary and Ralph were in a public place, there is no expectation of privacy, and therefore, no viable tort action against the newspaper for any of the listed options.
4) The constitutional right of privacy is
A) explicitly stated in the First Amendment.
B) explicitly stated in the Fourth Amendment.
C) explicitly stated nowhere in the constitution.
D) There is no constitutional right of privacy.
E) None of the above.
Answer: C
Rationale:
While the right to privacy is recognized by the Supreme Court as emanating from various constitutional provisions, including the First, Fourth, Fifth, and Fourteenth Amendments, it is not explicitly stated in the Constitution.
5) To successfully sue over revelation of private facts, a plaintiff must establish among other things
A) the publication was highly offensive.
B) the publication was intentionally misleading.
C) the defendant acted with actual malice.
D) the publication was commercial.
E) None of the above.
Answer: A
Rationale:
In a private facts lawsuit, the plaintiff must primarily establish that the publication of private information was highly offensive to a reasonable person, among other elements. The other options are not necessarily required elements for a successful lawsuit of this nature.
6) The Supreme Court ruled in Florida Star v. BJF that
A) the government has no interest in protecting the privacy of rape victims.
B) rape is not a matter of public importance.
C) information is "lawfully acquired" if obtained from a report issued by the sheriff's office.
D) All of the above.
E) None of the above.
Answer: C
Rationale:
In Florida Star v. BJF, the Supreme Court ruled that information obtained from a public record, such as a report issued by the sheriff's office, is considered "lawfully acquired" for First Amendment purposes, even if its publication may cause harm.
7) Sidis v. F-R Publishing Corp., the case involving the former child prodigy, illustrates
A) that newsworthiness includes information that may be merely interesting.
B) newsworthiness can last longer than 10 years.
C) that collecting subway tokens is of no public interest.
D) All of the above.
E) A & B only.
Answer: E
Rationale:
Sidis v. F-R Publishing Corp. established that newsworthiness can extend beyond immediate events and that information may remain of public interest even after a significant period of time has passed.
8) Tommy Snapper climbs a ladder to get a photo with his telephoto lens of Ima Starr, a popular local singer, as she watches television, dressed in a nightgown, in her den. Snapper never publishes the picture. Starr might successfully sue for
A) exposure of private facts.
B) intrusion.
C) commercial appropriation.
D) intentional infliction of emotional distress.
E) None of the above.
Answer: B
Rationale:
In this scenario, Snapper's act of climbing a ladder to take a photograph of Ima Starr in her private space constitutes intrusion into her privacy, even though the photo was not published. Intrusion upon seclusion is a viable cause of action in such cases.
9) Broadcasters may
A) NOT tape-record telephone conversations for broadcast.
B) tape-record a telephone conversation for broadcast if they tell the person being recorded at the beginning of the recording.
C) may tape-record for broadcast only if they are collecting information "in the public interest, convenience and necessity."
D) B and C only.
E) None of the above.
Answer: B
Rationale:
Broadcasters may generally tape-record telephone conversations for broadcast if they inform the person being recorded at the beginning of the conversation. This requirement is often mandated by state laws governing wiretapping and electronic surveillance.
10) Courts have ruled that citizens have a legitimate expectation of privacy everywhere EXCEPT a
A) medical helicopter.
B) doctor's office.
C) hospital room.
D) street corner.
E) B and D only.
Answer: D
Rationale:
Courts have recognized that individuals have a legitimate expectation of privacy in various settings, including medical facilities like doctor's offices and hospital rooms, as well as in private spaces such as homes. However, individuals generally do not have a reasonable expectation of privacy in public spaces like street corners where they are exposed to public view.
Essay Questions
1) Ace is a reporter for WGET-TV, preparing a series of reports on professors at Go University. Ace hears that art professor Michael Montage is suspected of selling drugs to students. While searching police and court files to see if Montage has a criminal record, Ace runs across an unsealed, two-year-old divorce file. In the file, Ace learns that Montage was divorced two yeas ago. Ace also learns in the divorce file that Montage was sexually molested by a neighbor when he was a child.
By coincidence, police with a search warrant raid Professor Montage's house in the evening, just as Ace is walking to his own nearby apartment. When Ace shows police his reporter's credentials, police invite him on the raid. As the raid begins, Montage stands at the door to his house, shielding his eyes from the lights of Ace's camera, and yells: "Keep Out." Nevertheless, Ace follows police through the house. No drugs are found, but police seize several DVDs that appear to be pornographic.
Later that night, WGET runs several promos: "A Drug Raid at Professor's House; Details at 11," says one promo. A two-second clip of the raid is included in the promo. At 11 p.m.,
WGET runs a two-minute story about the raid, including ACE's footage from inside the house.
Ace reports that police found no drugs, but police think they confiscated obscene material. With great solemnity, Ace adds, "Sadly, Montage himself was sexually molested when he was a boy, court records reveal."
Montage sues Ace and WGET for several torts and a violation of his Fourth Amendment rights. Tell whether you think Montage might recover damages for any of the following claims. Cite cases where appropriate.
(1) Disclosure of private facts for revelation of the childhood molestation.
(2) Trespass and intrusion for entry with police during the raid.
(3) Violation of Fourth Amendment for participating in illegal search and seizure.
(4) Commercial appropriation of Montage's identity in the news program and the broadcastpromotion before the 11 p.m. news.
Answer: (1) Private facts. Montage would have a weak claim for tortious revelation of private facts. The Supreme Court ruled in Florida Star v. B.J.F. that the press has First Amendment protection to publish lawfully acquired, truthful information about an issue of public importance. Ace acquired the information about Montage's molestation lawfully from an open court document. A student might argue convincingly that disclosure of the molestation is not a matter of public importance, indeed that disclosure of the molestation is gratuitous. Nevertheless, the information has been lawfully acquired from a public office and, arguably, has at least minimal news value in connection with the drug raid at a professor's house where pornography may have been found. The search of a professor's house is a matter of public importance.
Even though the record of the molestation is two years old, it would still be newsworthy or of public interest. A federal court in Briscoe v. Readers Digest ruled that a man could not sue for invasion of privacy because information in 12-year-old court records were still newsworthy.
(2) Trespass and intrusion. Montage may have a successful trespass and intrusionclaim. The Supreme Court has ruled that officials do not have the authority to invite journalists and others into private property during a lawful search. (Wilson v. Layne, Hanlon v. Berger) Montage denied permission for Ace to enter when he shouted from his door way to "Keep Out." Montage might also have an intrusion case, as Ms. Schulman did, for entry of cameras into a private place—the home—where a person has a legitimate expectation of privacy.
(3) Fourth Amendment. Ace did not violate the Fourth Amendment because he didnot act under color of law. The Supreme Court has ruled that officials violate a householder's Fourth Amendment protections against unreasonable searches and seizures when officials invite private citizens—including journalists—onto private property when the officials are not authorized to do so. In rare circumstances journalists, too, might violate the Fourth Amendment if their activity on private property is so tightly integrated with officials that the journalists become arms of the law. The Ninth Circuit Court of Appeals found CNN reporters to be acting under color of law when CNN signed an agreement with a government agency detailing CNN's role in a raid and use of resulting tapes and secret recordings. There would not appear to be sufficient planning or "collusion" for Ace to be acting under color of law. Ace found out about the raid by chance.
(4) Appropriation. Ace and WGET did not appropriate Montage's identity forcommercial purposes. News media do not engage in commercial appropriation when they air or publish a news story. The media also have a privilege to employ photos and news clips to promote their own programs and news offerings.
Short Answer and Key Terms
1) Distinguish between the torts of disclosure of private facts and intrusion. Cite key cases.
Answer: Private facts is a tort in which private, intimate information is published that is highly offensive to an average person and not of legitimate public interest, i.e., not newsworthy. The plaintiff must establish that the private information was disseminated to the public. Plaintiffs are seldom successful bringing private facts cases because the media have broad First Amendment rights recognized in Florida Star v. B.J.F. to publish lawfully acquired truthful information and because newsworthiness, generally, is defined very broadly.
Intrusion is the highly offensive invasion of someone's solitude or seclusion through physical, mechanical or electronic means. Intrusion is accomplished through the use of recorders, telephoto lenses or other means of sensory enhancement. Intrusion is a newsgathering tort that does not require publication, while private facts is a tort of publicity.
2) Describe the right of publicity.
Answer: The right of publicity is the right of celebrities and public figures to control the commercial use of their identities, their names, faces, voices and distinctive characteristics. Celebrities can authorize or halt the use of their identities in advertisements, posters, endorsements and other commercial activities. Not all states recognize a right of publicity. Where it is recognized, some states hold that the right of publicity dies with the celebrity; other states, including California, allow a celebrity's heirs or estate to control and profit from the celebrity's identity. Bette Midler and Tom Waits have successfully sued advertisers who imitated the singers' distinctive voices in unauthorized commercials.
3) What is the significance of the Florida Star v. BJF case?
Answer: In Florida Star the Supreme Court accorded the media a very broad constitutional protection to disseminate lawfully acquired, truthful information about matters of public importance, even if that information is private or embarrassing. The Court said a government must demonstrate an interest of "the highest order" to overcome the constitutional right of the media to publish lawfully acquired, truthful information. The Florida Star newspaper acquired the name of a rape victim lawfully from a government office when the sheriff included the name in a press release the office was not supposed to distribute. The Court has not defined when the media might be punished for publishing truthful private information about an issue of public importance. Also, the definition of lawfully acquired is not clear.
4) Incitement-Can the media be held liable for "inciting" dangerous or violent acts when readers and viewers copy or take inspiration from violent or dangerous acts they read or view?
Answer: Almost never. Courts generally rule that the media are not responsible for the foolish and dangerous acts of readers and viewers who copy or are inspired by what they read or view. The media are not responsible if a violent viewer rapes a woman after viewing a simulated rape in a television drama. The media lack the close relationship and duty of care to readers and viewers that licensed doctors have toward their patients or lawyers toward their clients. However, a federal appeals court did rule in Rice v. Palladin that a book incited crime by providing a very detailed manual on how to commit murder. The book was a manual for murder that intentionally provided detailed directions for readers intent on murder.
5) Consent Advise a corporate PR practitioner on the type of consent she should acquire from employees who will be pictured in company promotional brochures.
Answer: The PR practitioner should get written consent specifying how the picture will be used. Courts have ruled that employees have not given consent for commercial use of their identities when they fail to object when their pictures are taken. Silence does not constitute implied consent.
Test Bank for The Law of Public Communication
Kent R. Middleton, William E. Lee
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