Reconciling Freedom of Press with Privacy Rights, The

Investigative Reporters’ s Freedom and Responsibility: Reconciling Freedom of Press with Privacy Rights, The

Litwin, Ethan E

“Freedom unrestrained by responsibility becomes mere license; responsibility unchecked by freedom becomes mere arbitrary power. The question then, is not whether freedom and responsibility shall be united, but how they can be united and reconciled to the best advantage.” 1

-Carl L. Becker


The inevitable conflict between the press’s First Amendment rights2 and the individual privacy rights retained by the people3 is by no means a modern day problem. Indeed, many authors have suggested that the intrusive reporting techniques employed by nineteenth-century journalists provided Louis Brandeis and Samuel Warren with the impetus to write The Right of Privacy,4 in which the authors argued for “a right to be left alone.”5 This historical conflict of rights, however, has been inadequately resolved in the law, as courts have been reluctant to develop a modality of interpretation that adequately protects the individual’s privacy rights in light of the media’s competing First Amendment rights.

Journalists enjoy rights and privileges under the First Amendment beyond those covering the subsequent publication or broadcasting of their reports. In Branzburg v. Hayes,6 the Court wrote in dictum that the protections guaranteed by the First Amendment also apply to newsgathering activities.7 In recognizing a constitutional protection for newsgathering, the Court routinely has relied on the implicit assumption that the primary goal of the Free Press Clause is to prevent prior restraint on publication.8 Furthermore, it is well established that journalists cannot be held liable in tort for conducting newsgathering from a public place.9

Unlike First Amendment jurisprudence, privacy law has been slow to develop. The right of privacy can be traced back to the historic Warren and Brandeis article, but modern tort law concerning privacy was substantially created in Dean Prosser’s landmark 1960 article, in which he divided Warren and Brandeis’s “right to be left alone” into four distinct torts.lo Included within these new torts created by Prosser was the intrusion upon seclusion tort, which most directly affects journalists engaged in investigative newsgathering activities.ll

A successful claim of intrusion upon seclusion must establish not only that “the intrusion would be highly offensive to a reasonable person,”12 but also that the intrusion was an “intentional interference with another’s interest in solitude or seclusion, either as to his person or to his private affairs or concerns.” 13 A claim of intrusion upon seclusion may be based, for example, on an invasion of the home,l4 eavesdropping on private conversations with microphones,l5 or peering into windows.’6 Prosser further noted that “the thing into which there is intrusion or prying must be, and be entitled to be, private.” 17 Prosser is thus in accord with the traditional view that there is no right to be left alone in public places.18

In attempting to draw a line between a journalist’s right to gather news and his subject’s right to privacy, courts have historically granted great deference to the journalist’s First Amendment rights. The purpose of this note is to reexamine this conflict of rights through the twin lenses of freedom and responsibility, and thereby to strike a truly equitable balance between these competing interests.19 Part I of this note will re-examine current tort and First Amendment law in defining a new model of analysis, based on the freedom and responsibility modality, for resolving this conflict of rights. Part I goes on to argue that the application of strict scrutiny to the evaluation of newsgathering techniques-for cases in which journalists have intruded upon the legitimate privacy interests of their subjects-will provide a judicially manageable standard that protects both First Amendment and privacy interests. By analyzing the nature of the specific privacy interest at issue first, courts will be able to determine whether strict scrutiny or rational basis scrutiny should be applied. Then, in applying the appropriate standard to the newsgathering process, courts will be precluded from engaging in the suspect judicial practices of valuating news or determining whether a particular newsgathering technique is “routine.”20

Part II of this note applies this new model to the surreptitious surveillance techniques employed by the investigative journalists in Wolfson v. Lewis21 while discussing the flaws in the district court’s method of interpretation. This Part will then apply the new model to a case of physical intrusion, Food Lion, Inc. v. Capital Cities.22 This note concludes that application of this proposed model offers the dual benefit of correcting inconsistent results while preventing further rendering of seemingly illogical opinions.



Ideally, any model by which these competing rights are resolved would adequately protect both the privacy rights and First Amendment rights at stake; the traditional model does neither.23 Under current law, newsgathering techniques employed by investigative journalists can give rise to a claim of intrusion upon seclusion if a court finds that the particular methods used were not routine,24 and that the intrusion was substantial25 and would be highly offensive to a reasonable person.26 In determining whether an intrusion would be “highly offensive” to a reasonable person, courts have historically examined the totality of the circumstances, including, but not limited to, “the degree of the intrusion, the context, conduct and circumstances surrounding the intrusion as well as the intruder’s motives and objectives, the setting into which he intrudes, and the expectations of those whose privacy is invaded.”27 Courts have also attempted to determine whether the subjects of the investigation are public figures, as public figures acting within the scope of their public duties have no right of privacy against intrusions by the press.28

While the traditional model would appear to adequately protect the privacy rights of private individuals against intrusions by the press, there is a shocking paucity of cases upholding such claims. One of the major factors contributing to this imbalance is the difficulty courts have applying the “routine techniques” standard first announced in Smith v. Daily Mail Publishing Co.,29 and further developed in Nicholson v. McClatchy Newspapers.30

In Smith, the Court was asked to declare that a state statute, which required prior approval before a juvenile’s name could be published, operated as a prior restraint on speech. The Court declined to decide that issue because the statute also violated the constitutional standards set forth in Landmark Communications, Inc. v. Virginia,31 specifically, that the punitive action sought was not necessary to further the state interests asserted.32 Because journalists in Smith had “relied upon routine newspaper reporting techniques,”33 the state could not constitutionally punish the newspaper because the interest advanced-protecting the identity of juveniles34-was deemed to be less substantial than the newspaper’s competing First Amendment rights.35 The Smith opinion did not elaborate on the content of the “routine techniques” standard, but rather left that issue open to further debate, one which was joined by the California Court of Appeals in Nicholson.

The Nicholson case itself was born from a conflict of rights: the right to keep information private versus the press’s right to disseminate information to the public.36 Nicholson, a candidate for appointment to the California bench, sued a newspaper and the responsible journalists for the publication of Nicholson’s unfavorable evaluation by the Commission on Judicial Nominees.37 That evaluation, which had been deemed confidential under state law, concluded that Nicholson was not qualified for a judicial appointment.38 Drawing on the Supreme Court’s decision in Smith, the Nicholson court determined that to impose liability on the press, it first needed to determine that the journalists were not obtaining and publishing newsworthy information through “routine reporting techniques.”39 Despite the fact that the reporters in Nicholson allegedly ” `pursued and conducted an unreasonably intrusive investigation into [Nicholson’s] confidential and private affairs'”40 by, among other things, persuading state bar officials to unlawfully disclose Nicholson’s private evaluation, the court found the newsgathering activities to be protected by the First Amendment and steadfastly refused to balance these protected newsgathering activities against Nicholson’s privacy interests. Since the newsgathering techniques employed by the journalists were deemed to be routine, “state law [could] not impinge upon them by characterizing the activities as tortious.”41

The Smith/Nicholson “routine techniques” standard is better understood, however, through the twin lenses of freedom and responsibility, and not as a bright-line rule for courts to uniformly apply in every case. The Nicholson opinion itself is consistent with this interpretation, as the court noted in dictum that the newsgathering privilege is “the right to ask, not the right to receive . . ..42 It is this concept of the newsgathering privilege, one which reflects the responsibility of the newsgatherer, that virtually has been ignored by courts in their zealous refusal to apply even the appearance of a prior restraint on newsgathering activities.43 The press is free to seek out information and to try to uncover a story, but reporters are not entitled to that story; the freedom to gather news imposes, among other responsibilities, a responsibility to respect the subject’s privacy. Yet it is precisely this sense of entitlement that induces the media to use the most effective and efficient means of newsgathering, even if those means require intruding into the private spheres of their subjects. The more common these intrusive newsgathering techniques become, the more likely courts, which are loathe to restrain the press, are to view these techniques as “routine.” Eventually, the unrestrained use of such intrusive newsgathering techniques will eviscerate all privacy of media subjects.

It is equally clear that the “routine techniques” standard does not adequately protect First Amendment rights. Neither Smith nor Nicholson fully defined the substance of what constitutes the “routine techniques” that journalists may use in newsgathering, nor could they, as techniques vary from journalist to journalist and from story to story. The law must respect the right of a journalist to pursue a story with the means she chooses, whether or not these means are “routine” in the industry. For example, by restricting journalists to merely asking questions,44 courts ignore the possibility that permissible techniques exist between Branzburg’s requirement of choosing legal means and Smith/ Nicholson’s “routine techniques” standard.

Viewing the Smith/Nicholson “routine techniques” standard apart from the well-established prohibition on criminal and tortious conduct in newsgathering,45 it becomes clear that “routine techniques” is the wrong phraseology applied to the correct theory. What is critical here is the procedure by which reporters approach newsgathering, not the substance of the specific actions taken by journalists in a given case.46 As in Fourth Amendment jurisprudence, in which police officers are required to follow the warrant procedure instead of conforming to a list of permissible investigative techniques,47 courts should likewise refrain from requiring the media to justify specific lawful newsgathering techniques as “routine.”48


The challenge in developing a new model designed to analyze conflicts of rights is to find a modality of interpretation which respects both rights without sacrificing either. While the concept of freedom and responsibility is certainly not new, this note argues that by using this idea as a modailty by which to analyze competing rights, a coherent model may be created by which both the reporter’s and subject’s rights are respected. Indeed, not only does this modality protect both privacy and First Amendment rights, it reinforces the responsible exercise of these freedoms. Under the proposed model, the freedom to gather the news is limited by the private sphere of the reporter’s subject. Conversely, the model constrains privacy rights by permitting broad newsgathering in, or from, public places.

Starting from the proposition that the privacy rights of individuals and the journalist’s newsgathering privilege are normative equals, courts should require journalists to pursue the least intrusive means available in approaching newsgathering within a subject’s private sphere. Applying a least-intrusive-means test-a form of strict scrutiny49-to the procedure by which investigative journalists choose the techniques to use in a given case has the dual benefit of protecting the reasonable privacy concerns of the journalist’s subjects and providing the court with a judicially manageable standard for analyzing such cases. By using this test, then, courts should reach predictable and consistent results.5

However, while subjecting newsgathering to strict judicial scrutiny would prevent the media from abusing their freedom, such a standard would also run the risk of granting judges arbitrary editorial power over the dissemination of news, thereby adversely impacting the free exchange of ideas. To safeguard the press from arbitrary censorship by the bench, courts operating under the proposed model would first be required to ascertain the nature of the privacy interests involved before applying the restrictive least-intrusive means analysis. If the claimed privacy interest does not meet certain specified standards (as discussed below) then a court would be free to undertake a rational basis review. Thus, the legitimacy of the privacy interest is not only critical to the intrusion upon seclusion claim, but is itself a useful sorting device,51 making it the functional equivalent of the more traditional-but judicially unmanageablesorting device for valuating news.52

In reviewing a claim of intrusion upon seclusion, there are a number of factors a court should consider in evaluating whether the claimed privacy interest should be subject to strict scrutiny. First, the nature of the privacy interest encompasses the subject’s public status,53 as courts have uniformly held that public figures54 may not shield themselves from media intrusion, so long as they are engaged in the performance of their public duties,55 and the media did not act with malice.56 Therefore, it would be inappropriate to apply strict scrutiny to newsgathering concerning the public acts of public officials, since there would be no privacy interest to protect. Furthermore, because the law treats private individuals engaged in dealings with the government as public figures,57 strict scrutiny is similarly inappropriately applied to newsgathering in such situations. Under this proposed model, then, the public figure exception to the application of strict scrutiny enables the press to use more intrusive means to gather news in areas traditionally deemed by courts to be “highly charged with the public interest,”Ss while enhancing privacy protection for those who are not public figures.59 In other words, strict scrutiny will prevent freedom of the press from becoming “mere license” while the public figure exception will help restrain courts from arbitrarily exercising their new responsibility over newsgathering.

Another important factor courts must consider in assessing the nature of the privacy interest is whether “the thing into which there is intrusion or prying [is] . . . entitled to be . . private.”6 Indeed, one risk assumed by an individual taking part in society is unintended publicity: “Exposure of the self to others in varying degrees is a concomitant of life in a civilized community. The risk of this exposure is an essential incident of life in a society which places a primary value on freedom of speech and of press.”61

It is thus well settled that an individual’s privacy interest in seclusion does not cover activities conducted in a public or semi-public space.62 Therefore, the subject’s presence in the public sphere provides a second exception to the application of strict scrutiny in the proposed model.

Finally, before a court imposes strict scrutiny, it should determine that an intrusion has actually occurred. By requiring journalists to use the least intrusive techniques available when investigating the private lives of their subjects, courts would ensure that the means chosen will not be “highly offensive.” Furthermore, such a restrictive form of analysis is obviously unnecessary unless the journalist has actually intruded upon his subject’s seclusion.63 If there is no intrusion, and therefore no threat to a legitimate privacy interest, then the court need only apply a rational basis test to the journalist’s choice of investigation techniques.64

In short, the proposed model is preferable to the traditional model for several reasons. First, and most important, the proposed model requires courts to gauge the nature of the privacy interest at stake at the outset. Unlike the “routine techniques” test, courts operating under the proposed model will put the burden of proof where it belongs-on the plaintiff who is claiming an intrusion into his sphere of privacy. Assuming the court finds that the plaintiff had a legitimate privacy interest, the next step requires the court to determine if an actual invasion of that privacy interest occurred. By focusing on actual intrusions into legitimate privacy interests, the proposed model avoids requiring courts to engage in the judicially suspect technique of valuating news. Finally, if the court finds an actual intrusion, then it will apply a strict scrutiny test to the journalist’s activities. The severity of this test reflects both the need to protect citizens’ privacy rights-as defined both in tort law and in Griswold”–and to enforce the limits on newsgathering, as defined by Branzburg.66 The next Part demonstrates through two different cases, both the failings of the traditional method of analysis in these cases and the logic behind application of the proposed model.



In 1996, Inside Edition, an investigative television news magazine, was enjoined from further investigating the private lives of U.S. Healthcare executives.67 The investigation had been aimed at highlighting pervasive and suspect business practices in the healthcare industry.68 At a time when health maintenance organizations (HMOs) were cutting costs and limiting services to their subscribers, HMO executives were being paid exorbitant salaries reflective of soaring industry profits.69 Two investigative journalists from Inside Edition, Paul Lewis and Stephen Wilson, decided to focus their story on two executives at U.S. Healthcare, Richard and Nancy Wolfson, and also on the chairman of U.S. Healthcare’s board, Leonard Abramson.70 After their requests for an interview with Mr. Abramson were denied, the journalists attempted to obtain footage of the Wolfsons by various means, including following them in a van with tinted windows, conducting “ambush” interviews at their offices, and conducting an extended surveillance of their homes with “shotgun” mikes71 and telephoto lenses.72 The Wolfsons sued the reporters under the common law tort of intrusion upon seclusion, and a federal district judge73 enjoined Inside Edition from engaging in any future conduct invasive of the Wolfsons’ privacy.74

The Failings of the Traditional Model in Wolfson

The Wolfson case is a perfect example of the courts’ inability to draw judicially manageable lines in cases concerning the media’s investigation of private actions (of either public or private figures) which arguably affect the public. In Wolfson, the Inside Edition journalists were investigating U.S. Healthcare’s decision to cut subscriber benefits while raising executive salaries to exorbitant levels.75 The Wolfson court did not dispute the press’s constitutional right to “inform the public about the organizations that provide health insurance to millions of Americans.”76 The problem, as the court observed, was not with Inside Edition’s decision to pursue this story, but with the means the reporters used to uncover it. Primarily, the court objected to the reporters’ constant surveillance of the Wolfsons-from work to home and from Pennsylvania to Florida-the use of “shotgun” mikes, and the practice of conducting “ambush” interviews.77 In fact, the court likened this case to Galella v. Onassis,78 in which the defendant photographer’s conduct was found to amount to “assault and battery.”79 While Mr. Lewis’s and Mr. Wilson’s actions paled in comparison to Galella’s,so the Wolfson court’s opinion asked an intriguing question: since the Wolfsons were not acting pursuant to their arguably “public duties,” did Inside Edition have a right to intrude upon their privacy? But while the Wolfson court identified the correct issue, it began its analysis of the Wolfsons’ privacy claim from a faulty premise. The court wrote that “[c]onduct that amounts to . . . unreasonable surveillance, even if conducted in a public or semi-public place, may nevertheless rise to the level of invasion of privacy based on intrusion upon seclusion.”8′ In support of this statement, the court cited Galella82 and six other cases-none of which concerned media defendants.83 Thus, the court failed to correctly analyze the Wolfsons’ privacy interests in light of the reporters’ competing First Amendment newsgathering privilege.84 As explained above,85 it is well established that the press may conduct surveillance of subjects in public and semi-public places, and there was no proof that the reporters from Inside Edition had at any time conducted surveillance from any place outside of the public sphere.86 Unlike Galella, the Inside Edition reporters did not physically touch either the Wolfsons or their children, enter the children’s school, or otherwise physically threaten anyone. In fact, the reporters’ surveillance of the Wolfsons was conducted exclusively from a distance-neither Mr. Lewis nor Mr. Wilson ever physically intruded into the Wolfsons’ private sphere. Indeed, this case is marked not so much by intrusions into the Wolfsons’ privacy, but rather by the Wolfsons’ choice to remain hidden in seclusion.87

From this faulty premise, the Wolfson court found that the reporters’ surveillance activities “altered the Wolfsons’ physical and emotional sense of seclusion” and made them “prisoners in [their] home.”ss What the court did not find, however, was an actual intrusion. Indeed, by focusing its inquiry primarily on the reporting techniques of the defendants, the court failed to identify a single legitimate privacy interest.89 Although the court concluded that a jury could find that the defendants “engag[ed] in a course of conduct apparently designed to hound, harass, intimidate and frighten [the Wolfsons],” the court failed to elaborate on the “pattern of conduct involving physical and sensory invasions into Mr. and Mrs. Wolfson’s privacy” supposedly committed by Mr. Lewis and Mr. Wilson.90

Instead, much of the court’s opinion seems to be premised, implicitly, on the impermissibility of using technology to further expand the realm of permissible intrusions. In other words, although it is clear that a conversation which can be overheard from a public place may be recorded,91 it is not clear to what extent sound-enhancing technology may be used to overhear persons whose conversation is beyond what is audible to the unaided human ear.92 While not directly presented by the facts of Wolfson, since no conversation was actually recorded,93 the district court’s hypothetical94 has certainly raised this issue. Under the standard for the reasonable expectation of privacy established in Katz v. United States,95 the surreptitious use of such recording equipment may indeed be found to violate the intrusion upon seclusion tort. While the Wolfsons did not have an actual subjective expectation of privacy,’ surreptitious recordings made from a hidden shotgun microphone raise serious privacy concerns, particularly if the conversations recorded would have otherwise been inaudible to the unaided human ear.97 Indeed, under the Katz test, our society would likely characterize such an expectation of privacy as reasonable. However, while the district court felt entitled to depart from reality (as fantasy proved better support for its conclusions), honest application of the proposed model necessitates strict adherance to the actual facts of the case.

2. Application of the Proposed Model in Wolfson.

A reassessment of the Wolfson facts demonstrates that the court’s decision to enjoin the defendants from pursuing their story is not only highly suspect, but also constitutes a dangerous precedent. The court determined that because Mr. Lewis and Mr. Wilson were merely gathering “entertaining background”98 for their story, considered by the court to have little news value, the application of a stricter standard to the newsgathering conducted by Inside Edition was appropriate.99 The distinction, then, under the proposed model, is that the appropriate sorting device would be the legitimacy of the Wolfsons’ privacy interests, not the news value of the Inside Edition story or the techniques used to get that story. Therefore, the first step in the court’s analysis should have been a determination of the Wolfsons’ public status.

Although Mr. and Mrs. Wolfson were not public officials in the traditional sense, they voluntarily accepted executive positions with a company whose business is to protect the health of two million people. As the healthcare industry is supervised by the government, the Wolfsons arguably were public figures to the extent that they were engaged in U.S. Healthcare’s business activities.loo Regardless, the private activities of nonpublic figures are protected to the fullest extent by the privacy torts, and Mr. Lewis and Mr. Wilson admitted that the object of their surveillance campaign was to obtain footage of the Wolfsons’ private lives. Therefore, the public figure exception would be inapplicable in this

Once the court concluded that the public figure exception was inapplicable, it would then need to determine whether the Wolfsons had a cognizable privacy interest, and whether the defendants had actually intruded upon that interest. The Wolfsons’ first claim concerned Inside Edition’s constant surveillance and videotaping of their Pennsylvania and Florida estates.l02 As noted above, courts have been reluctant to extend privacy protection to people in places open to the public eye.’03 In Frazier v. Southeastern Pennsylvania Transportation Authority,l04 the court held that video surveillance conducted over the course of six months did not constitute an intrusion upon the plaintiff’s seclusion because the plaintiff was taped only in public places. Likewise, Inside Edition’s surveillance of the Wolfsons was conducted within the public sphere.’05 The Wolfsons were taped leaving their home,’6 driving to and from work,’0 and and at work.los Indeed, the Wolfson court expressly found that “[t]here is no doubt that Mr. Wilson and Mr. Lewis had a right to take a picture of plaintiffs of [sic] their home from the public highway.” 09

The Wolfsons’ next claim concerned Mr. Wilson’s attempted “ambush” interview of Mr. Wolfson outside of U.S. Healthcare’s offices. In Machleder v. Diaz,” the plaintiff was also “ambushed” by reporters outside of his offices. The Machleder court found, however, that the “ambush” occurred in a semipublic area, and therefore the plaintiff had no reasonable expectation of privacy.”‘ Likewise, in Wolfson, not only did the attempted “ambush” occur on a public street, but Mr. Wolfson was apparently oblivious to the reporters’ presence behind him.”2 Thus, this “ambush” did not constitute an invasion of Mr. Wolfson’s ‘rivacv.

The Wolfsons also claimed that Inside Edition’s use of a “shotgun mike” outside of their Florida estate constituted an intrusion upon seclusion.”3 The court found this argument particularly convincing, finding that the use of this microphone had made the plaintiffs “prisoners” in their home.114 The court, however, failed to take into account that the Wolfsons were never recorded.l’s The mere presence of a visible “shotgun mike” fifty yards from a home is not sufficient to give the residents an intrusion claim: there must be an actual, not an attempted intrusion.’16 Success in securing seclusion is not and should not be grounds to sue for intrusion upon seclusion. 7 Yet the Wolfson court expressly found that “[a]iming the `shotgun mike’ at the Abramson family home was a significant part of the harassing course of conduct . . . which greatly intruded upon the solitude and privacy of Mr. and Mrs. Wolfson….”” Here, the court engaged in pure hypothetical hyperbole, especially as it postulated that if the Wolfsons had “engaged in a private conversation on the terrace outside” they could have been recorded by the “shotgun mike.”9 The court’s illogical hypothetical overlooks the fact that the Wolfsons knew of the presence of the microphone, purposefully refrained from engaging in such conversations, and likely did so in an attempt to keep their conversations private. The court also assumed, incorrectly, that the Wolfsons would have had a reasonable expectation of privacy outside of their home.’20 Furthermore, such a recording would not have been a violation of either federal or state wiretapping statutes.lzl Indeed, courts have similarly been reluctant to hold that the use of telephoto lenses constitutes an invasion of privacy, so long as the viewer was in a public place.122

Thus, under current law, although the Wolfsons undoubtably had many cognizable privacy interests, they failed to establish an actual invasion of those interests by the Inside Edition journalists. The Wolfson case is thus distinguishable from the Galella case, in which Mrs. Onassis’s privacy interest in her physical integrity was routinely violated, the sanctum of her children’s schools penetrated, and the safety of the Kennedy family frequently jeopardized by Galella’s “frenzied” actions.l23 By focusing on the defendants’ questionable newsgathering techniques instead of the plaintiffs’ privacy interests, the court lost sight of the real issue-the legitimacy of the Wolfsons’ privacy claims.124 In contrast, under the proposed model, after determining that the Wolfsons had no legitimate privacy claim-as no intrusion was established-the court would then have applied rational basis scrutiny. In other words, so long as Inside Edition used surveillance techniques reasonably related to the gathering of news, such actions should not be held intrusive of the Wolfsons’ seclusion.

At a critical point in the Wolfson court’s opinion, it found that the defendants had engaged in their surveillance of the Wolfsons in an attempt to coerce Mr. Abramson into granting them an interview.lzs Once again, the district court had focused its analysis on a highly questionable issue: the subjective intent of the defendants. But while the court wallowed in the suspect practice of analyzing the defendants’ subjective intent, it ignored a point it made earlier in its opinion: “Inside Edition has no written guidelines governing reporters’ conduct in the field when investigating a story…. he newsgathering approach to each story is discussed on a case by case basis.” 126 By initiating a blanket surveillance of the Wolfson family before fully investigating whether an interview with either Mr. or Mrs. Wolfson was a possibility, the journalists acted recklessly and with little regard for the privacy of the Wolfson family. Therefore, it seems that by questioning the motives of the reporters and the news value of their story the court overplayed its hand; assuming, arguendo, a preliminary finding of an actual intrusion upon the Wolfsons’ legitimate privacy interests, such extensive surveillance would likely be sufficient to justify, at least under the Restatement,l27 a finding of liability under the intrusion upon seclusion tort.lzs Thus, since the decision to follow this particular course of action clearly was intentional, there would be no further need for the court to attempt to discern the subjective intent of Mr. Wilson and Mr. Lewis. Had an actual privacy intrusion occurred, one might argue that in this case, Inside Edition’s lack of internal guidelines governing newsgathering procedures would have led to creating liability, even under the proposed model.

The freedom to gather news is a powerful and important privilege, but in failing to temper this great freedom by requiring reporters to responsibly use the least intrusive means practical in their investigations into the private spheres of their subjects, society runs the risk of allowing reporters to do exactly what the court accused Inside Edition of doing here-using the newsgathering privilege to intimidate and coerce private individuals. A reporter’s freedom to pry into the lives of his subjects is not absolute, and the power that comes with this freedom must be used responsibly. However, the fact remains that no actual intrusion occurred in this case, and the traditional model led the court to an illogical result.

In the next section, I will examine Food Lion v. Capital Cities, in which an actual physical intrusion was not in dispute. But while PrimeTime Live and ABC were found liable in the case, Food Lion demonstrates both the inadequacies of using trespass doctrine to protect privacy interests,l29 and further how the proposed model would accurately resolve these types of disputes.


In 1992, two journalists at PrimeTime Live, an investigative news television program, decided to investigate labor relations and sanitary conditions at Food Lion, a supermarket chain.’30 Lynne Litt, an investigative journalist, and Susan Barnett, an associate producer at ABC, had independently received information concerning Food Lion’s suspect practices and had each subsequently decided to conduct an undercover investigation.l3l In conjunction with the United Food & Commercial Workers International Union (UFCW),132 Ms. Litt constructed a false identity133 for herself, and used this identity to obtain a job as a meat wrapper with Food Lion.’34 Ms. Litt worked at Food Lion for about ten days, during which time she surreptitiously used a miniature video camera, a hidden microphone, and a wireless radio transmitter to record her daily activities.l35 Ms. Barnett, using a similar strategy, was also able to obtain employment with Food Lion, and used the same technological equipment to conduct her undercover investigation.l36 In all, about forty-five hours worth of video was recorded by PrimeTime Live at Food Lion, of which only ten minutes worth was used in the final report. 37 ABC, however, admitted that without the footage obtained by Ms. Litt and Ms. Barnett, PrimeTime Live would not have broadcast the story.l38

The PrimeTime Live journalists took their investigation one step further than the Inside Edition journalists: they physically invaded their subject’s private sphere, and did so by fraudulent means.’39 Such a physical intrusion not only gives rise to a claim for intrusion upon seclusion, but also to a claim for trespass.140 It is well settled that “generally applicable laws do not offend the First Amendment simply because their enforcement against the press has incidental effects on its ability to gather and report the news.” 141 Furthermore, courts have held that the First Amendment is not a shield against either tort or criminal liability incurred in the course of newsgathering.l42 Indeed, one of the many charges brought by Food Lion against Capital Cities, the producer of PrimeTime Live, was for the tort of trespass.l43

The tort of trespass differs from a claim of intrusion upon seclusion in some respects. For instance, trespass is a strict liability tort, and therefore consideration of the defendant’s good faith motivation is irrelevant.l44 Intrusion upon seclusion, in contrast, is an intentional tort, requiring the plaintiff to prove the defendant’s subjective intent.l45 It is apparent, however, that a physical, common law trespass may constitute an invasion of privacy. 146 1. The Use of Trespass Doctrine to Protect Privacy Rights in Food Lion. In its motion for summary judgment on the trespass claim, Capital Cities relied upon Judge Posner’s landmark opinion in Desnick v. American Broadcasting Co.,”47 in which PrimeTime Live journalists had exposed suspect practices of doctors at the Desnick Eye Center.148 In Desnick, investigative journalists, posing as patients, surreptitiously recorded their examinations with hidden cameras and microphones.’49 Judge Posner held that the use of hidden cameras did not constitute a trespass, as Desnick’s consent to the reporter’s presence was effective, even though it was procured by fraud.150

The Desnick opinion greatly limited the seminal case in this area, Dietemann v. Time.’sl In Dietemann, investigative journalists went undercover to gather information about a doctor who was using clay, minerals, and herbs to heal his patients.’52 Also posing as patients, these journalists used a false reference to gain entrance, and subsequently used a hidden camera and microphone to record the examination.153 In extending the invasion of privacy tort to include nonphysical intrusions, the court held that the use of “hidden mechanical contrivances” constituted an impermissible intrusion into the plaintiff’s home.154

In Desnick, Judge Posner distinguished Dietemann on the facts: Dietemann was operating out of his home, did not advertise, and did not charge for his services.l55 To extend the Dietemann holding beyond the protection of privacy in the home, Posner argued, was to start down a very slippery slope indeed: Without [the ability to hide true motives from the property owner] a restaurant critic could not conceal his identity when he ordered a meal, or a browser pretend to be interested in merchandise that he could not afford to buy. Dinner guests would be trespassers if they were false friends who never would have been invited had the host known their true character, and a consumer who in an effort to bargain down an automobile dealer falsely claimed to be able to buy the same car elsewhere at a lower price would be a trespasser in the dealer’s showroom.156

Posner’s opinion thus limits not only trespass, but also limits intrusion upon seclusion to “preventing intrusion into legitimately private activities … ,

By focusing on the substance of the newsgathering techniques used rather than the procedure followed in the investigation, the Food Lion court-much like the Wolfson and Dietemann courts-was led to condemn the use of modern technology in newsgathering, particularly when used in the context of a trespass.’58 The Food Lion court was greatly troubled, in particular, by the journalists’ use of hidden cameras to record their experiences within the private spheres of their subjects.159 In this regard, the Food Lion court followed the reasoning of the Dietemann court, which decried the increasing capability of … electronic devices with their capacity to destroy an individual’s anonymity, intrude upon his most intimate activities, and expose his most personal characteristics to public gaze …. The claim is not so much one of total secrecy as it is of the right to define one’s circle of intimacy …. 160

In response to the Dietemann opinion, Posner, writing in Desnick, issued a stunning defense of network investigative news programs:

Today’s “tabloid” style investigative television reportage, conducted by networks desperate for viewers in an increasingly competitive television market, constitutes-although it is often shrill, one-sided, and offensive, and sometimes defamatory-an important part of that market. It is entitled to all the safeguards with which the Supreme Court has surrounded liability for defamation. And it is entitled to them regardless of the name of the tort ….161 Posner implicitly reasoned that the issue in these cases is not whether modern technology is used to gather and disseminate the news, but rather why such technology is chosen, and under what circumstances it is used. Posner’s distinction of Dietemann was based on Dietemann’s reasonable expectation of privacy in his home, not on the type of microphones used. Posner refused to either valuate news or determine whether the reporters’ methods were “routine”; rather, he viewed all newsgatherers equally under the law. Posner, however, failed to adequately protect the privacy interests at stake, despite his assertion that it was the tort interest, not the fraud, that underlined the distinction between Desnick and Dietemann. 162 Under Posner’s rationale, the trespass claim in Food Lion could not rest on the journalists’ physical presence in the stores, but rather must be based on the journalists’ misrepresentations by which they gained behind-the-scenes access to the stores.

Under the proposed model, the initial issue in Food Lion should have been whether the PrimeTime Live journalists intruded into “legitimately private activities.”163 The Food Lion court, however, never properly addressed the nature of Food Lion’s privacy interest in its analysis of the trespass claim.”64 Instead, the court began its analysis by asserting that a reasonable jury could find that Ms. Litt and Ms. Barnett were never truly Food Lion employees, because “their presence in Food Lion [was] purely incidental to their jobs with PrimeTime Live…65 Furthermore, the court determined that the journalists had been admitted to areas of the store that were not open to the general public, whereas the journalists in Desnick “entered offices that were open to anyone expressing a desire for ophthalmic services.”’66 The court’s analysis, therefore, was premised on the erroneous assumption that Food Lion’s consent to hire Ms. Litt and Ms. Barnett could be rendered ineffective by a subsequent wrongful act in excess of that consent.l67 The court concluded, therefore, that Desnick was not an appropriate analogy. Instead, the court relied on Copeland v. Hubbard Broadcasting,’68 which held that a lawful entrant may become a trespasser by exceeding the scope of the possessor’s consent.169

The Food Lion court’s argument that fraudulent inducement of consent constitutes a wrongful act in excess of that consent, however, evades the issue entirely.170 What is critical to the analysis is the legitimacy of Food Lion’s privacy interest, as PrimeTime Live obviously did not need consent to investigate in nonprivate areas. As in Wolfson, however, the Food Lion court focused on the substance of the journalists’ actions before assessing the nature of the privacy interest at stake. Although Food Lion, a corporation, was the subject of the journalists’ investigation, the situation is roughly analogous to the Wolfsons’: while Food Lion’s actions arguably affected the public, these activities were conducted in private. The distinction between the two cases lies in the proximity between the private actions and the public effects of those actions. The activities in the Wolfson family home did not directly affect U.S. Healthcare subscribers, but Food Lion’s alleged repackaging of rotten meat could have directly affected the public health. Food Lion, however, was not dealing with the government, and thus was not a public figure, even in a fictitious sense.171 Therefore, Food Lion, unlike the Wolfsons, did in fact have a cognizable privacy interest in its behind-the-scenes operations.l72

Following the finding of a legitimate privacy interest, the next factor under the proposed model is whether the journalists’ actions constituted an intrusion. There is little doubt that if Ms. Litt and Ms. Barnett were trespassing during their investigation, such an act would also constitute an intrusion on Food Lion’s privacy. 73 Since the journalists’ physical presence on Food Lion’s property was never contested, the only substantial question is the scope of Food Lion’s consent.l74 The court found that the defendants’ elaborate scheme, which included submitting false names, histories, applications, and references on their resumes, had exceeded Food Lion’s consent.175 But Food Lion, unlike Dietemann and more like the Desnick Eye Center, had held itself out to the public, affirmatively solicited business, and charged for its services. The proper analogy, therefore, is to Desnick and not to Dietemann. Applying Posner’s reasoning in Desnick, Ms. Litt and Ms. Barnett did not exceed the scope of Food Lion’s consent merely because they had failed to disclose their hidden agendas or because they had falsified their applications.’76 Desnick, however, is not fully dispositive on the issue of consent, as many jurisdictions have recognized that the use of hidden cameras in newsgathering can independently give rise to a claim for trespass.l77 Regardless, in the final analysis, Food Lion’s trespass claim demonstrates the inability of the trespass tort to fully protect privacy rights.

2. Protection of Food Lion’s Privacy Rights Under the Proposed Model

Although no court ever weighed in on the substance of Food Lion’s potential intrusion claims, a correct application of the intrusion upon seclusion tort in that case would have produced the same result, but without distorting precedent. Rather than focusing exclusively on the means chosen by Ms. Litt and Ms. Barnett, the court should have focused on the procedure by which such means were selected. A strict scrutiny type analysis would then be applied to the newsgathering process in this case, as the reporters had intruded upon Food Lion’s legitimate privacy interests.178 Under this analysis, Ms. Litt and Ms. Barnett would have been liable, not for trespass, but rather for failing to exhaust all effective nonintrusive means of newsgathering before resorting to the type of investigation undertaken in Food Lion.l79 While the Dietemann journalists had relied on information provided by police sources, however, the Food Lion journalists were relying on information from UFCW, hardly an unbiased source.180 Ms. Litt and Ms. Barnett never sought interviews with current Food Lion employees, managers, or executives. PrimeTime Live never requested permission to film Food Lion’s operations, nor did they attempt surveillance from a public space. Rather, in a blatant attempt to snare higher ratings, the PrimeTime Live journalists chose the most intrusive means available. The critical factor here is that the reporters had a choice of means: the reporters consciously chose means invasive of Food Lion’s privacy without first attempting nonintrusive means.181

Food Lion, therefore, is a paradigm of physical intrusion cases. While an undercover investigation is justifiable as a means of last resort, it was PrimeTime Live’s first option, resulting in a gross violation of Food Lion’s privacy interests.182 While many courts will continue to rely on trespass to resolve these kinds of disputes, it is clear that the doctrine of consent greatly limits the effectiveness of that strategy. The more effective and judicially manageable method of procedural analysis, embodied in the proposed model, enables courts to protect privacy interests in the face of actual physical intrusions, without resorting to blind reliance on trespass doctrine. Since intrusion upon seclusion, as a non-strict liability tort, is necessarily broader in scope than trespass, limiting privacy claims to trespass inherently limits privacy protection. Furthermore, while effective consent may negate the trespass violation, consent cannot remedy an intrusion upon legitimate privacy interests.

Food Lion thus demonstrates the problems associated with relying on the alternative means of remedying invasions of privacy commonly argued under the traditional model. While Food Lion’s trespass claim was persuasive to both judge and jury, trespass doctrine is an unreliable means of correcting privacy invasions. Under the proposed model, the application of strict scrutiny to an intrusion upon seclusion claim would have produced the same results in Food Lion, while preserving the journalists’ right to use such investigative methods in the future, should less intrusive means prove ineffective, impractical, or impossible.


The matter of harmonizing individual rights with the interests of the community is not an easy task. The First Amendment’s general prohibition on placing prior restraints on the media prevents courts from taking preventative measures in anything short of extraordinary cases. As one court noted:

The public has no right, for example, to break into a private home to see what pictures are on the wall, or to peek into a voting booth to see how someone votes. A newspaper can, at best, claim only to be one of the public. It has the same “right to find out” as the rest of the public.183

The press, therefore, is subject to the same laws of general applicability that restrict the actions of the rest of society; the press’s First Amendment rights are qualified, not absolute.

The traditional model requires a court to determine whether journalists were using “routine” newsgathering techniques when faced with an invasion of privacy claim. The court must also determine the reasonableness of the reporter’s intrusion in the subject’s private sphere. Courts, in an effort to avoid placing prior restraints on the media, have also developed an informal sorting device to determine the extent of judicial inquiry into journalistic activities in a given case: the news value of the given story.

This method of analysis fails to protect either the media’s First Amendment rights or the subject’s privacy rights. The traditional model impermissibly grants courts effective editorial authority over the media by allowing judges to grant greater leniency to journalists engaged in investigating “important” news stories, while holding all others to a higher standard. At the same time, by failing to produce consistent results in like cases, the courts also fail to equally protect the privacy rights of all media subjects.

Instead of relying on a judge’s valuation of newsworthiness, the model proposed in this note would use the subject’s privacy interest itself as a sorting device. If a court, operating under the proposed model, were to find an invasion of a legitimate privacy interest in a case, only then should the court apply strict scrutiny to the journalist’s activities. If the court were to find that the reporter had failed to use an effective but less intrusive means of newsgathering, then the court should rule that the reporter had acted tortiously. But if the court were not to find an actual intrusion or legitimate privacy interest in the case, then the means chosen by the reporter need only be rationally related to the gathering of news. Since application of the rational basis test presumes a preliminary finding of either no legitimate privacy interest or no actual intrusion by the reporter, the court need not inquire into the intrusiveness of the newsgathering techniques chosen.

This proposed model has many advantages over the traditional method of analysis. First and foremost, the proposed model prohibits courts from engaging in the judicially suspect practices of valuating news and judging the “routineness” of newsgathering techniques. Furthermore, the proposed model’s sorting device is more judicially manageable, as only legitimate privacy interests would require courts to balance the competing rights of the parties. Also, by limiting the application of strict scrutiny to cases in which reporters have actually intruded upon legitimate privacy interests, the proposed model allows courts to produce consistent, and thus predictable, results. This model also allows journalists to use a full range of newsgathering techniques in extraordinary cases, as even “non-routine” techniques are theoretically permissible. Finally, the proposed model reinforces the Madisonian ideal of freedom and responsibility: freedom of the press “demands and even mandates the observance of the coequal duty not to abuse such right, but to utilize it with right reason and dignity.” 184

The great civil freedoms granted by the First Amendment are not, and should never be seen as, absolute rights. The rights of the free press come hand in hand with an equal measure of responsibility, but, in recent years, it is precisely that sense of responsibility that is lacking in the conduct of both tabloid and mainstream media. In an era in which so-called paparazzi contributed to the death of a major world figure, in which network television news programs aired allegations of Presidential misdeeds without independent confirmation, and in which lust for profit has replaced pride in the accuracy of reporting as the primary goal of the media, Professor Becker’s words-with which this note beginsl85-have never rung more true. But the right to privacy is also a freedom ripe for abuse, as the Wolfson case so vividly demonstrates, and courts faced with this clash of rights must carefully analyze the merits of each interest before rendering judgment. Freedom untempered by responsibility is license, and there is neither a constitutional license to speak nor an absolute right to privacy.

* J.D., Georgetown University Law Center, 1998; A.B., Duke University, 1992. I would like to thank Dean Anita Allen for her thoughtful comments, Professor Clark Cahow for his support and advice over the years, and the editors of The Georgetown Law Journal for their hours of hard work on my behalf.

1. CARL L. BECKER, FREEDOM AND RESPONSIBILITY IN THE AMERICAN WAY OF LIFE 3 ( 1945). 2. The First Amendment provides in pertinent part, “Congress shall make no law . . . abridging the freedom of speech, or of the press ….” U.S. CONST. amend. I. First Amendment protections were held applicable to the states in Gitlow v. New York, 268 U.S. 652, 666 (1925) (incorporating the First Amendment into the Due Process Clause of the Fourteenth Amendment).

3. While no longer universally seen as the textual source of privacy rights, the Ninth Amendment has historically been invoked by the Court in constitutional privacy cases. See, e.g., Griswold v. Connecticut, 381 U.S. 479, 485 (1965) (Goldberg, J., concurring). In recent years, some scholars have argued that the Ninth Amendment is rather a rule governing construction of the Constitution. See LAURENCE TRIBE & MICHAEL DORF, ON READING THE CONSTITUTION 54 (1991). The Ninth Amendment provides in pertinent part, “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” U.S. CONST. amend. IX. This note, however, will focus on the privacy interests found in tort law. See infra note 10. It is important, though, to remember that privacy rights do have an, albeit questionable, textual source in the Constitution

4. Samuel Warren & Louis Brandeis, The Right of Privacy, 4 HARV. L. REv. 193 ( 1890). 5. See James H. Barron, Warren & Brandeis, 4 Harv L. Rev. 193 (1890): Demystifying a Landmark Citation, 13 SUFFOLK U. L. REv. 875 (1975). Whatever the merits of this claim, the underlying reality serves to remind us that an intrusive press is not unique in the late-twentieth century.

6. 408 U.S. 665 (1972).

7. The Court argued that “without some protection for seeking out the news, freedom of the press could be eviscerated.” Id. at 681; see also Smith v. Daily Mail Publ’g Co., 443 U.S. 97, 103 (1979) (stating that “routine” reporting techniques are protected under the First Amendment); Houchins v. KQED, 438 U.S. 1, 16 (1978) (Stewart, J., concurring) (finding the right to gather news protected by the First Amendment, but declining to find that the First Amendment mandates a special right of access to government information); Pell v. Procunier, 417 U.S. 817, 833 (1974) (stating that newsgathering is protected by the First Amendment); Riley v. City of Chester, 612 F.2d 708, 714 (3d Cir. 1979) (finding a necessary relationship between “newsgathering” and “news dissemination” and holding that both activities are protected under the First Amendment); Nicholson v. McClatchy Newspapers, 223 Cal. Rptr. 58, 64 (Ct. App. 1986) (finding reporters immune from tort liability that would restrict “routine reporting techniques”).

8. See CBS Inc. v. Davis, 510 U.S. 1315, 1318 (1994) (holding harms in the First Amendment context should be redressed in subsequent civil or criminal proceedings, not by prior restraint or protected speech); Grosjean v. American Press Co., Inc., 297 U.S. 233, 249 (1936) (noting that First Amendment was meant to preclude government from adopting any form of a prior restraint on speech); Near v. Minnesota, 283 U.S. 697, 713 (1931) (noting it is “generally, if not universally” believed that the chief purpose of the free press guarantee is to prevent prior restraints on publication); see also JoHN E. NOWAK & RONALD D. ROTUNDA, CorrloNAL LAW 1023-27 (Sth ed. 1995). The doctrine of prior restraint was most notably revisited by the Court in the Pentagon Papers Case. New York Times Co. v. United States, 403 U.S. 713, 715 (1971) (Black, J., concurring) (arguing that a holding allowing the publication of news to be enjoined “would make a shambles of the First Amendment” ). Indeed, the per curiam opinion held that any system of prior restraints placed upon the press comes to the Court “bearing a heavy presumption against its constitutional validity.” Id. at 714 (quoting Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70 (1963)). For more information on prior restraints law, see Floyd Abrams, Recent Developments in Prior Restraints Law, in COMMUNiCATIONS LAW 1997 (PLI Patents, Copyrights, Trademarks, and Literary Property Course Handbook 1997) (publication pending). 9. See, e.g., Fogel v. Forbes, Inc., 500 F. Supp. 1081, 1087 (E.D. Pa. 1980) (holding that the intrusion upon seclusion tort “does not apply to matters which occur in a public place or a place otherwise open to the public eye”); Aisenson v. American Broad. Co., 269 Cal. Rptr. 379, 388 (Ct. App. 1990) (holding that filming plaintiff in his driveway was not an unreasonable and highly offensive intrusion upon seclusion); cf Wehling v. Columbia Broad. Sys., 721 E2d 506, 509 (Sth Cir. 1983) (finding no intrusion when defendant broadcast images of plaintiffs residence because the broadcast did not show more than what could have been seen from the public street); Frazier v. Southeastern Pa. Transp. Auth., 907 F. Supp. 116, 122 (E.D. Pa. 1995) (finding no intrusion when ongoing surveillance was conducted outdoors and in public), aff*d, 91 F.3d 123 (3d Cir. 1996); Machleder v. Diaz, 538 E Supp. 1364, 1374 (S.D.N.Y. 1982) (finding no intrusion when defendant conducted an “ambush interview” because the interview occurred in a semi-public place “visible to the public eye”), op. after trial, 618 E Supp. 1367 (S.D.N.Y. 1985), cert. denied, 479 U.S. 1088 (1987); Mark v. Seattle Times, 635 P.2d 1081, 1095 (Wash. 1981) (finding no intrusion when a reporter filmed plaintiff’s shop because the film was shot in a place open to the public), cert. denied, 457 U.S. 1124 (1982).

10. William L. Prosser, Privacy, 48 CAL. L. REv. 383, 388-89 (1960). Prosser divided privacy into four separate torts: (1) “[i]ntrusion upon the plaintiffs seclusion or solitude, or into his private affairs”; (2) “[p]ublic disclosure of embarrassing private facts about the plaintiff”; (3) “[p]ublicity which places the plaintiff in a false light in the public eye”; and (4) “[a]ppropriation, for the defendant’s advantage, of the plaintiff’s name or likeness.” Id. Prosser subsequently incorporated his four privacy torts into the RESTATEMENT (SECOND) OF TORTS 652A (1976) [hereinafter RESTATEMENT].

I1. Subsequent publication or broadcast of information gathered by journalists may give rise to a public disclosure of private fact claim. See generally Peter B. Edelman, Free Press v. Privacy: Haunted by the Ghost of Justice Black, 68 TEx. L. REV. 1195 ( 1990). 12. RESTATEMENT, supra note 10, at 652B.

13. PROSSER AND KEETON ON THE LAW OF TORTS 854 (W. Page Keeton ed., 5th ed. 1984) [hereinafter PROSSER & KEETON].

14. See, e.g., Dietemann v. Time, Inc., 284 F. Supp. 925 (D.C. Cal. 1968), affd, 449 F.2d 245 (9th Cir. 1971).

15. See, e.g., Elson v. Bowen, 436 P.2d 12 (Nev. 1967).

16. See, e.g., Souder v. Pendleton Detectives, Inc., 88 So. 2d 716 (La. Ct. App. 1956). For additional examples of activities giving rise to intrusion upon seclusion claims, see PROSSER & KEETON, supra note 13, at 854-55.

17. PROSSER & KEETON, supra note 13, at 855.

18. Id. at 855-56 (stating that there is neither a right to be left alone or to be free from being filmed by a photographer while in a public place). As noted above, courts have been reluctant to extend the intrusion upon seclusion tort to cover newsgathering activities conducted in or from a public place. See supra note 9.

19. When rights conflict, and judges are called upon to resolve the controversy, their method for

resolving this conflict must respect the fundamental nature of both rights, protecting neither in the absolute, but rather preserving the essence of each. While this note will argue against the deference historically accorded to First Amendment rights, it would be a mistake to read this note as either a pro-privacy or anti-press argument. Rather, this note argues that using the freedom and responsibility modality to resolve this conflict will produce more consistent and equitable results. 20. See infra notes 24 and 30. 21. 924 F. Supp. 1413 (E.D. Pa. 1996).

22. 887 F. Supp. 811 (M.D.N.C. 1995) (granting defendants’ motion to dismiss in part) [hereinafter Food Lion ; 951 F. Supp. 1217 (M.D.N.C. 1996) (denying defendants’ motion for summary judgment) [hereinafter Food Lion 1I].

23. By overly deferring to First Amendment concerns, the traditional model creates two problems. First, by placing undue emphasis on protecting “routine” newsgathering, the traditional model fails to protect the true First Amendment interest at stake-that a prior restraint on publication might be masquerading as a benign limitation on newsgathering. Indeed, unique situations inevitably call for the use of unique newsgathering techniques and it is impermissible for courts, in such cases, to require investigative journalists to conform to a judicially predetermined set of approved methods of newsgathering. Second, this “routineness” test leaves little room, if any, for courts to balance the privacy interests of the journalist’s subject. Thus, the traditional model also fails to protect the relevant privacy interest.

24. See Smith v. Daily Mail Publ’g Co., 443 U.S. 97, 103 (1979); Nicholson v. McClatchy Newspapers, 223 Cal. Rptr. 58, 64 (Ct. App. 1986) (reasoning routine newsgathering techniques, such as questioning persons with confidential or restricted information, are privileged under the First Amendment and cannot be characterized as tortious); see also Galella v. Onassis, 487 F.2d 986, 995 (2d Cir. 1973) (holding constant surveillance amounting to an obtrusive and intruding presence in the subject’s life held to go “far beyond the reasonable bounds of news gathering”); Wolfson, 924 F. Supp. at 1420 (persistent hounding, harassment, and unreasonable surveillance may give rise to a claim of intrusion upon seclusion, even if conducted in a public place).

25. Incorporated into the notion of “substantial” is the existence of an actual intrusion. See, e.g., Binkley v. Loughran, 714 F. Supp. 776, 780 (M.D.N.C. 1989). 26. See Wolfson, 924 E Supp. at 1420-21 (stating that the interference with seclusion must be substantial, offensive to a reasonable person, and defendant’s conduct must be strongly objectionable to a reasonable person); Huskey v. National Broad. Co., 632 F. Supp. 1282, 1288 (N.D. 111. 1986) (stating that “[i]t is clear. . . that the intrusion must be something which would be offensive or objectionable to a reasonable man.”); Machleder v. Diaz, 538 F. Supp. 1364, 1374 (S.D.N.Y. 1985) (stating that the two major elements of intrusion upon seclusion are (1) something private has been intruded upon and (2) the intrusion is highly offensive); Aisenson v. American Broad. Co., 269 Cal. Rptr. 379, 387 (Ct. App. 1990) (stating that the intrusion must be intentional and highly offensive to a reasonable person) see also RESTATEMENT, supra note 10, at 652B.

27. Wolfson, 924 F. Supp. at 1421 (quoting Hill v. National Collegiate Athletic Ass’n 7 Cal.4th 1, 26 (1994)).

28. See Cassidy v. American Broad. Cos., 377 N.E.2d 126, l jl-jZ (lll. Ct. App.1978). At least one court has recognized that even private persons who are involved with business dealings in government cannot claim a right of privacy with respect to those dealings. See Huskey, 632 E Supp. at 1290. 29. 443 U.S. 97 (1979).

30. 223 Cal. Rptr. 58, 64 (Ct. App. 1986). Many courts have struggled in their application of the Smith/Nicholson standard. See, e.g., Larsen v. Philadelphia Newspapers Inc., 543 A.2d 1181, 1187 (Pa. 1987) (court unable to determine if reporter’s methods went beyond the acceptable bounds of news gathering techniques permitted by Nicholson). The Larsen court incorporated the Smith/Nicholson standard into the more general proposition that the First Amendment does not provide any special immunity from the application of laws of general applicability. See also Associated Press v. NLRB, 301 U.S. 103, 132-33 (1937) (holding publisher of a newspaper has no special immunity from the application of general laws). The Nicholson court, however, clearly intended the “routine techniques” standard to apply independently. See Nicholson, 223 Cal. Rptr. at 62-63 (“the privilege to publish newsworthy information does not immunize media defendants from liability for torts committed in

gathering the information…[s]o long as the tort does not restrict the traditional news gathering activities of the press….”(emphasis added)).

31. 435 U.S. 829,843 (1978)

32. Id.

33. Smith, 443 U.S. at 103-04.

34. Id. at 101.

35. Id. at 104.

36. Nicholson, 223 Cal. Rptr. at 61. In a classic statement of First Amendment privilege, the Nicholson court wrote: “Sensitive to this conflict and the privacy tort’s potential encroachment on the freedoms of speech and the press, decisional law recognizes a broad privilege cloaking the truthful publication of newsworthy matters.” Id. (quoting McCall v. Oroville Mercury Co. 191 Cal. Rptr. 280, 281-82 (Ct. App. 1983)). 37. Id. at 58-59. 38. Id. at 59. 39. Id. at 64. 40. See id.

41. Id. In a classic statement of the traditional deference shown to media parties, the Nicholson court concluded that “[s]ince the activities of the media defendants in this case fall within the protected ambit of the First Amendment, it does matter how plaintiff labels his several causes of action.” Id. at 65. Thus, since the First Amendment casted such a broad protection over the journalists’ actions, only extremely narrow privacy claims, if any at all, would be entertained by the court.

42. Id. at 63 n.5. Indeed, the Nicholson court expressly refused to fully define the substance of “routine techniques,” but rather expressly left such interpretation open to future consideration. 43. Post-injury relief may effectively constitute a prior restraint, providing that the relief granted is substantial enough to stifle future publication. See Abrams, supra note 8. 44. See Nicholson, 223 Cal. Rptr. at 64 (“Such [routine] techniques, of course, include asking persons questions …. “). While the Nicholson opinion stopped short of enumerating a complete list of permissible techniques, holding journalists to reasonable deviations from those actually discussed in the opinion would greatly restrict a journalist’s options.

45. See, e.g., Branzburg v. Hayes, 408 U.S. 665, 682 (1972); Rosenbloom v. Metromedia, Inc., 403 U.S. 29, 67 (1971); Associated Press v. NLRB, 301 U.S. 103, 132-33 (1937); Galella v. Onassis, 487 E2d 986, 995-96 (2d Cir. 1973); Dietemann v. Time, Inc., 449 F.2d 245, 249 (9th Cir. 1971) (stating that “the First Amendment is not a license to trespass”). 46. By procedure I mean the various steps journalists must take within their organization when pursuing a story, not the process of newsgathering itself. For instance, the two-sources rule is a rule of procedure, not an act of newsgathering, as is a requirement that reporters first clear their stories with an editor. Some news organizations standardize formal newsgathering procedures in handbooks, often prepared for them by attorneys.

47. See, e.g., Illinois v. Gates, 462 U.S. 213, 238-39 (1983) (outlining the “substantial basis” standard for the issuance of a warrant); Terry v. Ohio, 392 U.S. 1, 20 (1968) (requiring advance judicial approval for all searches and seizures whenever practicable).

48. Of course, police officers are also prohibited from engaging in criminal or tortious conduct in gathering information on suspects. The Galella court likewise concluded: “There is no threat to a free press in requiring its agents to act within the law.” Galella, 487 F.2d at 996. 49. The least-drastic-means test is one form of the strict scrutiny test commonly used in substantive due process law. While differently worded, the narrowly tailored means test is identical in function and totally interchangeable with the former. Indeed, both tests are used interchangeably by the Supreme Court in its substantive due process opinions. See, e.g., City of Richmond v. J.A. Croson Co., 488 U.S. 469 (1989) (reasoning means chosen must be narrowly tailored to achieve goal); Illinois State Bd. of Elections v. Socialist Worker’s Party, 440 U.S. 173 (1979) (reasoning means chosen must be the least

drastic available). Under such a strict scrutiny type standard, the newsgatherer would be required to justify his choice of intrusive techniques by establishing the absence of non-intrusive newsgathering methods. However, given the vast alternatives in this area, courts must be restricted to merely discerning whether (1) if the means chosen were in fact intrusive of the subject’s privacy interest and (2) if any practical and less intrusive means existed.

50. I am working from the assumption that consistent and predictable outcomes are of primary importance in developing a model for constitutional interpretation. 51. By a sorting device, I mean a method of analysis used to determine what level of scrutiny to apply in any given case.

52. See, e.g., Gray v. Udevitz, 656 E2d 588, 591 (lOth Cir. 1981) (opining on the value of the news); Gomes v. Fried, 186 Cal. Rptr. 605, 610 (Ct. App. 1982) (same); Pierce v. Pacific & Southern Co., 303 S.E.2d 316, 318 (Ga. Ct. App. 1983) (same); Coursey v. Greater Niles Township Pub. Co., 239 N.E.2d 837, 841 (111. 1968) (same); Rawlins v. Hutchinson Pub. Co., 543 P.2d 988, 991 (Kan. 1975) (same); Colombo v. Times-Argus Ass’n, 380 A.2d 80, 83 (Vt. 1977) (same).

53. Implicit in the concept of an exception to the right to privacy for pubic figures acting within the scope of their public duties is the assumption that public figures also have a private life, equally worthy of protection from media intrusion.

54. The three-part test for determining public figure status was enunciated in Waldbaum v. Fairchild Publications Inc., 627 F.2d 1287, 1296-98 (D.C. Cir.), cert. denied, 449 U.S. 898 (1980). In applying the Waldbaum standard, courts must (1) determine whether the subject is part of a “public controversy,” (2) determine whether the subject has “thrust to the forefront” of the public controversy, and (3) determine whether the claimed tort violation was “germaine to the plaintiff’s participation in the controversy.” Id.

55. See, e.g., Cassidy v. American Broad. Co., 377 N.E.2d 126, 131-32 (III. App. Ct. 1978) (reasoning status as public official conveys implied consent to inform public of official’s activities in

discharge of his public duties). The Cassidy court, however, decided the case under a “newsworthy” standard, demonstrating that such an analysis of whether a news story is “legitimate” or “highly charged with the public interest” is irrelevant, misleading, and unnecessary. Since the Cassidy court had already determined that police officers were public officials, and thus did not possess privacy rights in the discharge of their duties, there was no need to further analyze the reporter’s motives or the newsworthiness of the information sought. It is enough that the plaintiff had no reasonable expectation of privacy, and that the reporter did not act with actual malice. See id. 56. See id. at 131.

57. See supra note 28; see also Aisenson v. American Broad. Co., 269 Cal. Rptr. 379, 387 (Ct. App. 1990) (reasoning the relevant factor in determining the offensiveness of an intrusion is “the extent to which the person whose privacy is at issue voluntarily entered into the public sphere” (emphasis added)). Applying Aisenson, all private persons dealing with the government have voluntarily entered the public sphere. But see Huskey v. National Broad. Co., 632 F. Supp. 1282, 1286-87 (N.D. 1986) (reasoning it is irrelevant whether a person has intentionally sought the public eye). 58. Cassidy, 377 N.E.2d at 838.

59. However, some scholars have argued that corporations use privacy more economically than do individuals, and therefore should be afforded a higher level of privacy protection. See infra note 159. 60. PROSSER & KEETON, supra note 13, at 855. 61. Time, Inc. v. Hill, 385 U.S. 374, 388 (1967).

62. See, e.g., Wehling v. Columbia Broad. Sys., 721 E2d 506, 509 (5th Cir. 1983) (holding no intrusion occurred by televising plaintiff’s residence because visible from a public street); Frazier v. Southeastern Pa. Transp. Auth., 907 E Supp. 116, 122 (E.D. Pa. 1995) (holding no intrusion occurred by conducting surveillance over a period of months because subject had no reasonable expectation of privacy when outdoors and in public); Machleder v. Diaz, 538 F. Supp. 1364, 1374 (S.D.N.Y. 1982) (holding no intrusion occurred by conducting an “ambush” interview because the interview was conducted in a semi-public place); Mark v. Seattle Times, 635 P.2d 1081, 1095 (Wash. 1981) (holding no intrusion occurred by filming the inside of subject’s shop because the scene filmed was visible from

public space). Indeed, even the Wolfson court recognized “the traditional rule that watching or observing a person in a public place, or taking a photograph of a person who can be observed from a public vantage point, is not generally an invasion of privacy.” Wolfson v. Lewis, 924 E Supp. 1413, 1420 (E.D. Pa. 1996) (citing RESTATEMENT, supra note 10, at 652B cmt. c). The Wolfson court’s hostility to traditional newsgathering is discussed infra in Part II.

The public place justification not only applies to journalists, but also to businesses such as insurance companies, which routinely conduct investigations related to filed claims. See, e.g., Figured v. Paralegal Technical Servs., 555 A.2d 663, 665-67 (N.J. Super. Ct. App. Div. 1989); State v. Lee, 917 P.2d 159, 163 (Wash. Ct. App. 1996).

63. See Fogel v. Forbes, 500 F. Supp. 1081, 1087 (E.D. Pa. 1980) (reasoning an intrusion upon seclusion claim requires plaintiffs to show that their private affairs have been intruded upon; claim does not apply to matters occurring in a public place or a place “open to the public eye”). 64. So long as the techniques chosen are related to legitimate newsgathering, the journalist must be deemed to have satisfied the rational basis test, as such review favors the journalist’s right to conduct newsgathering in, or from, the public sphere. See supra note 9. 65. See supra note 3.

66. In Branzburg, the Court limited the newsgathering privilege to acts not violative of either criminal or civil tort law. See supra note 45 and accompanying text.

67. Wolfson v. Lewis, 924 F. Supp. 1413, 1435 (E.D. Pa. 1996). 68. Id. at 1415.

69. Richard Wolfson reportedly earned in excess of $640,000 in salary and bonuses for 1996 while Nancy Wolfson reportedly earned more than $275,000 for what was essentially an education and marketing position. See Aetna Ends Inherited Relationships Tied to U.S. Healthcare Founder’s Family, MANAGED CARE WEEK, Apr. 7, 1997 (citing Aetna’s 1997 proxy statement which was released subsequent to its purchase of U.S. Healthcare).

70. Wolfson, 924 E Supp at 1422. The Wolfsons were chosen from among 159 other executives at U.S. Healthcare, because of their unique familial relation to Mr. Abramson, which required public disclosure of their salaries in U.S. Healthcare’s proxy statement pursuant to SEC Regulation S-K, 17 C.F.R. 229.404 (1995).

71. A shotgun mike is capable of recording conversations at a distance of over 60 yards, but is incapable of recording sounds through walls or closed windows. Wolfson, 924 E Supp. at 1424. 72. Id. at 1428.

73. The parties in Wolfson settled before the case was scheduled to be heard by the Third Circuit. 74. See Wolfson 924 F. Supp at 1435.

75. Id. at 1415.

76. Id. at 1416. Such a story would undoubtably be considered “highly charged with the public interest” under the traditional model.

77. Id. at 1434 (finding that Mr. Wilson’s and Mr. Lewis’s conduct-including the use of “shotgun mikes” and conducting “ambush” interviews displayed “a cavalier disregard for the right of ordinary citizens to enjoy the solitude and tranquility of their lives”). 78. 487 F.2d 986 (2d Cir. 1973). 79. Id. at 994.

80. Specifically, Galella was found to have “intentionally physically touched Mrs. Onassis and her daughter, caused fear of physical contact in his frenzied attempts to get their pictures, followed defendant and her children too closely in an automobile, [and] endangered the safety of the children while they were swimming, water skiing and horseback riding.” Id. Galella caused the children to fall off of their bicycles, bang into glass doors, and frequently snapped pictures from only two or three feet away. Galella v. Onassis, 353 F. Supp. 196, 207-13 (S.D.N.Y. 1972). 81. Wolfson, 924 F. Supp. at 1420.

82. While Galella seems like an appropriate parallel, that case was decided under New York’s harassment laws, not under a privacy tort theory, since New York had not at that time recognized a common law right of privacy. Galella, 487 E2d at 994-96. Furthermore, Galella was found to have violated both criminal and tort law, independent of the invasion of privacy claim. Id. 83. See Wolfson, 924 E Supp. at 1420. The court cited several cases. See, e.g., Summers v. Bailey, 55 E3d 1564 (llth Cir. 1995) (defendant was a former store owner); Phillips v. Smalley Maintenance Servs., Inc., 711 F.2d 1524 (llth Cir. 1983) (defendant was a former employer); Speight v. Personnel Pool of Am., Inc., 1993 WL 276859, at *4-5 (E.D. Pa. July 20, 1993) (defendant was a former employer); Tucker v. American Employers’ Ins., 171 So. 437 (Fla. Dist. Ct. App. 1965) (defendant was an insurance company); Pinkerton Nat’l Detective Agency v. Stevens, 132 S.E.2d 119 (Ga. 1963) (defendant was a detective agency); DeAngelo v. Fortney, 515 A.2d 594 (Pa. Super. Ct. 1986) (defendant was a solicitor).

84. “The right of privacy competes with the freedom of the press as well as the interest of the public in the free dissemination of news and information, and these permanent public interests must be considered when placing the necessary limitations upon the right of privacy.” Culver v. Port Allegany Reporter Argus, 598 A.2d 54, 56 (Pa. Super. Ct. 1991); see also Gill v. Hearst Publ’g Co., 253 P.2d 441, 443 (Cal. 1953) (balancing privacy rights against public interest in dissemination of news); Aisenson v. American Broad. Co., 269 Cal. Rptr. 379, 387-88 (Ct. App. 1986) (balancing newsgathering privilege against privacy rights); Nicholson v. McClatchy Newspapers, 223 Cal. Rptr. 58, 64 (Ct. App. 1986) (balancing tort liability against possible restrictions on “routine reporting techniques” of the press); Cape Publications, Inc. v. Bridges, 423 So. 2d 426, 427-28 (Fla. Dist. Ct. App. 1982) (balancing the right of privacy against press’s right to report a legitimate news story), cert. denied, 464 U.S. 893 (1983).

85. See supra text accompanying note 62.

86. While there was a dispute concerning Mr. Wilson’s claim that Inside Edition’s cameras were placed on a right-of-way easement to the Wolfsons’ driveway, the court never decided this issue on the merits. Indeed, the court found that the Wolfsons’ invasion of privacy claim was not premised on Mr. Wilson’s alleged trespass. See Wolfson, 924 E Supp. at 1434.

87. It is a well-established rule that to recover for intrusion upon seclusion, “the plaintiffs must show that some aspect of their private affairs has been intruded upon.” Fogel v. Forbes, Inc., 500 E Supp. 1081, 1087 (E.D. Pa. 1980). Thus, while the Wolfsons may have felt like “prisoners” in their palatial home, the privacy tons may not be used to remedy such “injuries.” The Wolfsons’ suit, in essence, asks the court to compensate them for their decision to remain hidden from Inside Edition’s cameras under a ton designed to remedy invasions of that privacy.

It is interesting to note that the court’s definition of the Wolfsons’ privacy expectations is in direct correlation with their wealth, which was, of course, the issue of the Inside Edition story. Only because the Wolfsons could afford to distance themselves from prying eyes and ears were they entitled to heightened privacy protections in the eyes of the court. Compare Wolfson, 924 E Supp. at 1434 (conversation on estate’s terrace protected) with Cinci v. State, 642 So. 2d 572, 573 (Fla. Dist. Ct. App. 1994) (conversation in apartment courtyard not protected). 88. Wolfson, 924 E Supp. at 1431.

89. In what can only be described as a grossly impermissible judicial inquiry into journalistic motives, the judge found that the defendants engaged in surveillance of the Wolfsons for the sole purpose of coercing Mr. Abramson into granting Inside Edition an interview. Furthermore, the court found that there was significant evidence to support a determination that the defendants’ “intrusion” was not “for the legitimate purpose of gathering and broadcasting the news, but to try to obtain entertaining background for their T.V. expose ….” Id. at 1432 (emphasis added). Thus, the court

impermissibly concluded that the defendants were not pursuing a newsworthy story. 90. Id. at 1432. 91. See infra note 120. 92. See infra notes 121 and 145.

93. Inherent in the “substantial and highly offensive” element of an intrusion upon seclusion claim is a requirement that there be an actual, not an attempted intrusion. The district court premised its opinion on the hypothesis that if the Wolfsons had engaged in conversation outside the Abramson home, such conversations would have been recorded by the journalists. See Wolfson, 924 F. Supp. at 1434.

94. The district court premised its ruling on the ramifications of Inside Edition’s recording of a conversation between the Wolfsons on their terrace, but in reality, no such conversation occurred, and no such recording was actually made. See infra note 119 and accompanying text. 95. 389 U.S. 347, 361 (1967). The Katz standard for determining the legitimacy of the privacy interest requires courts to determine (1) that the plaintiff had a reasonable expectation of privacy and (2) that such an expectation is deemed reasonable in our society. 96. The Wolfsons testified that they were constantly aware that a “shotgun mike” was aimed at their home.

97. While sound travels unimpeded outdoors, a private conversation held outdoors on an estate the size of the Wolfsons’ would likely be inaudible to the unaided human ear from the closest public space. This argument, however, necessarily applies only to the privacy interests of the wealthy. See supra note 87.

98. Wolfson, 924 F. Supp. at 1432. Indeed, it was this finding which, in the court’s mind, justified the application of strict scrutiny in the case.

99. Indeed, the district court’s haste to apply strict scrutiny in this case, without first analyzing the privacy interests involved, directly led to the court’s seemingly illogical ruling. 100. See supra notes 28 and 55.

101. There is another argument to be made under the Waldbaum standard (described supra at note 54). The Wolfsons were at the center of a very public controversy, which concerned the high salaries being paid to U.S. Healthcare executives and the footage obtained by Inside Edition illuminated the raw data concerning their salaries by giving a pictorial representation of the lavish lifestyle the Wolfsons led. For the purposes of this note, however, I will assume that such an argument would fail. 102. Wolfson, 924 F. Supp. at 1415-16. 103. See supra note 9 and accompanying text. 104. 907 F. Supp. 116, 122 (E.D. Pa. 1995).

105. It is important to note that individuals do not have a reasonable expectation of privacy in that which can be observed from the public sphere. See supra note 9.

106. See Aisenson v. American Broad. Co., 269 Cal. Rptr. 379, 388 (Ct. App. 1986) (holding no intrusion occurred when reporter photographed plaintiff leaving his home).

107. See Frazier, 907 F. Supp. at 122 (holding no intrusion occurred when reporter conducted ongoing surveillance in public).

108. See Mark v. Seattle Times, 635 P.2d 1081, 1095 (Wash. 1981) (holding no intrusion occurred when reporter photographed plaintiff inside his shop from public space). 109. Wolfson, 924 F. Supp. at 1433. 110. 538 E Supp. 1364, 1374 (S.D.N.Y 1982). 111. Id.

112. Wolfson, 924 E Supp. at 1424.

113. Id. at 1433-34. 114. Id. at 1433.

115. Id. at 1433-34 (“One of the more serious intrusions upon [plaintiffs’] seclusion . . . [was the] use of a `shotgun mike’ in an attempt to intercept and record. . oral statements and conversations of the occupants of the Abramson family home.” (emphasis added)).

116. See Reed v. Schneider, 612 F. Supp. 216, 221 (E.D.N.Y. 1985) (reasoning that an intentional intrusion into something private is one of two necessary elements in establishing intrusion upon seclusion).

117. See supra note 87.

118. Wolfson, 924 F. Supp. at 1434 (emphasis added).

119. Id. (emphasis added).

120. See, e.g., Katz v. United States, 389 U.S. 347, 361 (1967) (holding individuals have no reasonable expectation of privacy in conversations outside the home because no protection against being overheard); see also Victor A. Kovner et al., Recent Developments in Newsgathering, Invasion of Privacy and Related Torts, in COMMUNWICATONS LAW 1996, at 513-15 (PLI Patents, Copyright, Trademark, and Literary Property Course Handbook Series No. G4-3980, 1996) (stating that that which may be heard from public place may be recorded at will).

121. See, e.g., Cinci v. State, 642 So. 2d 572, 573 (Fla. Dist. Ct. App. 1994) (stating that it is not a violation of Florida’s wiretapping statute to record conversation held outdoors in an apartment building courtyard); cf United States v. Llanes. 398 E2d 880, 884 (2d Cir. 1968) (no reasonable expectation of privacy in conversation conducted within home, but audible to those outside); Commonwealth v. Louden, 638 A.2d 953, 959 (Pa. 1994) (no reasonable expectation of privacy, even in the home, where conversation was audible through wall (emphasis added)).

122. Cf Aisenson v. American Broad. Co., 269 Cal. Rptr. 379, 388 (Ct. App. 1990) (involving use of an “enhanced lens” not actionable); Commonwealth v. Hernley, 263 A.2d 904, 906 (Pa. Super. Ct. 1970) (involving use of binoculars not actionable); State v. Vogel, 428 N.W.2d 272, 275 (S.D. 1988) (involving use of a zoom lens not actionable). But see RESTATEMENT, supra note 10, at 652B cmt. c (1977) (looking into upstairs window with binoculars may constitute intrusion). 123. Notably, the Second Circuit found the district court’s injunction overly broad, and rewrote the injunction to protect both plaintiffs privacy interests and Galella’s right to “cover” her. Galella, 487 F.2d at 998.

124. Indeed, it is not even clear that the defendants’ conduct in the Wolfson case was unusual, and “the court’s effort to characterize many of the challenged activities as other than newsgathering is without precedent.” Kovner et al., supra note 120, at 514.

125. See Wolfson, 924 F. Supp. at 1432 (finding a reasonable likelihood of convincing a jury that defendants’ conduct was “intentional and that it was undertaken to convince Mr. Abramson that his consent to be interviewed on T.V. would bring an end to the hounding and harassment of his daughters and grandchildren”). The court thus discerned the intent of the reporters from the fact that they had not asked either of the Wolfsons for an interview prior to initiating their surveillance. From this fact, the court determined that Mr. Abramson was the true target of the investigation, and that harassing the Wolfsons was a ploy designed to play on Mr. Abramson’s sympathies. It is important to note, however, that there was no direct evidence in the record supporting this conclusion.

126. Id. at 1422 (emphasis added). Indeed, it was precisely Inside Edition’s lack of formal guidelines governing newsgathering procedures which led directly to this controversy, as it is entirely possible that this story could have been adequately researched using less intrusive means. 127. RESTATEMENT, supra note 10, at 652B, cmt. d (1977).

128. Again, this analysis assumes a finding that the reporters had in fact intruded upon the Wolfsons’ legitimate privacy interests. As discussed above, however, since there was no actual intrusion in this case, the court should have limited its analysis to rational basis review under the proposed model.

129. Indeed, under the traditional model, litigants are frequently forced to resort to using trespass theory to remedy invasions of their privacy by physical intrusion by reporters. See infra note 143. 130. Food Lion v. Capital Cities, 887 F. Supp. 811, 814 (M.D.N.C. 1995) [hereinafter Food Lion IJ. 131. Id. at 813-14.

132. UFCW was not a disinterested party in this investigation. Food Lion, a nonunionized supermarket, was the target of UFCW’s intense campaign dedicated to either forcing unionization or bringing about the complete destruction of the company. Id. at 814-16. 133. Ms. Litt reported a false address, a false employment history, gave false references, and provided false reasons for seeking employment with Food Lion. Id. at 815. UFCW provided Ms. Litt with both basic training and a phony reference, whom Ms. Litt encouraged Food Lion to contact regarding her prior “employment.” Id. The court found that Ms. Litt intended “to deceive Food Lion into offering her a job so she could gain access to areas not open to the public.” Id. 134. Id. at 815-16. 135. Id. at 816. 136. Id. 137. Id.

138. Id. Segments of the unedited tape showed Ms. Litt and Ms. Barnett cursing when Food Lion employees discarded expired produce and began cleaning the premises or machines. One particularly interesting segment recorded Ms. Litt confessing to the camera technicians: “I’m really bad at this job. I don’t know what the fuck I’m doing.” The jury, in awarding $5.5 million in punitive damages, was

less concerned about PrimeTime Live’s pursuit of the Food Lion story than “the way [PrimeTime Live] went about getting their story.” See Amy Singer, Food, Lies, and Videotape, AM. LAw., Apr. 1997, at 56. This award was subsequently reduced to slightly more than $300,000 on defendant’s motion for a new trial or remittitur of punitive damage award. See Food Lion v. Capital Cities/ABC, 1997 WL 735490 (M.D.N.C. Aug. 29, 1997).

139. Food Lion is, of course, a corporation, whose interest in privacy, an individualistic right, is debatable. Such a discussion of the merits of corporate privacy, however, is beyond the scope of this note, which will assume equal treatment for both individual and corporate privacy interests. 140. A trespass is defined as an entry upon another’s land without the owner’s consent. See, e.g., Desnick v. American Broad. Co., 44 E3d 1345, 1351 (7th Cir. 1995). The elements of a trespass are: (1) plaintiff was either actually or constructively in possession of the land at the time of the alleged trespass; (2) defendant made an unauthorized entry on the land; and (3) plaintiff suffered damages by reason of the trespass. See Food Lion v. Capital Cities, 951 F. Supp. 1217, 1221 (M.D.N.C. 1996) [hereinafter Food Lion ll].

141. Cohen v. Cowles Media Co., 501 U.S. 663, 669 (1991). 142. See, e.g., Branzburg v. Hayes, 408 U.S. 665, 682 (1972) (holding First Amendment does not provide protection for the average citizen from disclosing information to a grand jury he has received in confidence); Rosenbloom v. Metromedia, 403 U.S. 29, 67 (1971) (holding First Amendment does not provide businesses with immunity from regulation); Associated Press v. NLRB, 301 U.S. 103, 132-33 (1937) (same); Galella v. Onassis, 487 F.2d 986, 995-96 (2d Cir. 1973) (holding First Amendment does not provide a wall of immunity from tortious conduct protecting newsmen); Dietemann v. Time, 449 F.2d 245, 249 (9th Cir. 1971) (First Amendment does not provide a license to trespass). 143. Food Lion’s amended complaint contained allegations of fraud, breach of duty, unfair trade practices, RICO, negligent supervision, trespass, illegal interception of oral communications, and civil conspiracy. Thus, Food Lion never put the truth of the PrimeTime Live report at issue by omitting a libel allegation from the complaint. This strategy not only effectively precluded ABC/Capital Cities from describing the unsanitary conditions found at Food Lion to the jury, but also prevented the defense from showing the final broadcast report at trial. As a result, the jury was left to speculate as to the journalistic motivations behind the investigation.

While Food Lion never alleged intrusion upon seclusion in its complaint, the facts of this case present an opportunity to apply the proposed model to cases of actual physical intrusion, as the tort of trespass is the functional equivalent of an invasion of privacy claim cases of physical intrusion. Indeed, it is not unusual to see invasion of privacy cases cited in a court’s analysis of a trespass claim. See, e.g., Desnick v. American Broad. Co., 44 F.3d 1345, 1352-53 (7th Cir. 1995) (citing invasion of privacy cases in an analysis of a consent defense to a trespass claim). 144. See PROSSER & KEETON, supra note 13, at 68.

145. See Baugh v. CBS, 828 F. Supp. 745, 756-57 (N.D. Cal. 1993). 146. See Bisbee v. Conover Agency, 452 A.2d 689, 691 (N.J. Super. Ct. App. Div. 1982) (citing RESTATEMENT, supra note 10, at 562A (1977)) (stating an intentional intrusion upon seclusion constitutes an invasion of privacy if the intrusion would be highly offensive to a reasonable person). 147. 44 F.3d 1345 (7th Cir. 1995).

148. Doctors at the Desnick Eye Center convinced patients to have unnecessary surgery, a practice described by experts as “near malpractice.” Id at 1347-48. 149. Id. at 1348.

150. Id. at 1351-53. Desnick argued that his consent to the journalists was ineffective because it was procured by “misrepresentation or a misleading omission.” Id. at 1351. Desnick certainly would not have agreed to the entry of the PrimeTime Live journalists if he had known that these “patients” sought to receive eye examinations solely to gather material for a television expose and to make secret videotapes of the examinations they received. 151. 449 F.2d 245 (9th Cir. 1971). 152. Id. at 245. 153. Id. at 246. 154. Id. at 249-50.

155. Posner found that while Dietemann’s “quackery was private,” the same could not be said for the very public Desnick Eye Center. Desnick, 44 F.3d at 1352-53.

156. Id. at 1351. Posner further noted that “[t]he law’s willingness to give effect to consent procured by fraud is not limited to the tort of trespass.” Id. at 1352.

157. Id. Posner’s comment precisely points to the fatal fallacy of Wolfson: the lack of an actual intrusion by the defendants. 158. See Food Lion ll, 951 F. Supp. at 1223-24.

159. See id. Food Lion, unlike either Dietemann or Desnick, is a corporation, and therefore any privacy arguments are based on the legal fiction of the corporation as an individual entity. See, e.g., State v. Richards, 552 N.W.2d 197, 203-04 (Minn. 1996) (holding Fourth Amendment protection extends to both natural persons and legal persons, such as corporations). Posner defends extending privacy protection to corporations, as corporations make better economic use of their privacy than individuals. See generally RiCHARD A. POSNER, THE ECONOMICS OF JUSTICE 248-50 (1983); Richard A. Posner, The Right of Privacy, 12 GA. L. REv. 393 (1978). But see Medical Lab. Management Consultants v. ABC, 931 E Supp. 1487 (D. Ariz. 1996) (holding that because a corporation cannot possess privacy rights it could not maintain an action for invasion of privacy). 160. Dietemann, 449 E2d at 248 (citations omitted).

161. Desnick, 44 F3d at 1355 (citations omitted).

162. See id. at 1352 (“The answer can have nothing to do with fraud; there is fraud in all the cases. It has to do with the interest that the torts in question, battery and trespass, protect.”). 163. Since the proposed model was created, in part, to protect privacy rights, it applies whether the parties seek to protect these rights under privacy or under trespass doctrine. Indeed, trespass doctrine can be seen as a subset of the former. 164. For the elements of the trespass tort, see supra note 140. 165. Food Lion II, 951 E Supp. at 1222.

166. Id. at 1223 (citing Desnick, 44 F.3d at 1352). But, just as the Desnick defendants gained access to an area open to potential patients, the Food Lion defendants gained access to an area open to anyone hired to work for Food Lion.

167. Food Lion I, 887 F. Supp. at 820. Because the substance of Food Lion’s case lay in trespass, the Food Lion court put itself in a legally indefensible position in light of Desnick. 168. 526 N.W.2d 402 (Minn. Ct. App. 1995).

169. Id. at 404. It is interesting that the court chose to rely on Copeland instead of on Dietemann. In Copeland, a part time student, who was also a reporter for KSTP-TV, accompanied a local veterinarian to the Copelands’ home to treat their cat. The Copelands consented to Ms. Johnson’s entry, but they were not told that she was also a reporter, and would be surreptitiously filming Dr. Ulland at work. The court found that there was a triable issue as to whether KSTP and Ms. Johnson exceeded the Copelands’ consent by videotaping Dr. Ulland in their home. See id. at 404-05. While both cases concern invasions of the home, the Copelands, unlike Dietemann, were not the subjects of the news investigation. Furthermore, Dr. Ulland knew that Ms. Johnson was a reporter and had previously consented to being videotaped.

170. In this regard, the difference between the trespass claim and the claim for intrusion upon seclusion is negligible.

171. Once again, an argument can be made that under the Waldbaum standard, Food Lion was a public figure. See supra note 54. However, the “public controversy” element was in fact created by the journalists, and thus did not exist at the time of the alleged intrusion. 172. The debate over corporate privacy is discussed supra at note 159. 173. See supra note 146 and accompanying text.

174. Consent is, of course, an absolute defense to an action for trespass, so long as such consent is given by the possessor or one competent and authorized to give such consent, and provided that the acts of the accused did not exceed such consent. See Berger v. Hanlon, 129 F.3d 505, 516 (9th Cir. 1997). 175. Food Lion 1, 887 E Supp. at 814-16. Food Lion conducted an extensive hiring process,

including conducting interviews and checking applicants’ references. If the journalists’ references were not confirmed, it is unlikely that Food Lion would have hired them. Id. It is not clear from the opinion if Food Lion prohibited its employees from either working a second job or using hidden cameras to record their conversations with fellow employees, but it is likely that these restrictions were not part of Food Lion’s standard employment agreement.

176. See, e.g., Baugh v. CBS, Inc., 828 E Supp. 745, 756-57 (N.D. Cal. 1993) (reasoning consent, even if fraudulently induced, vitiates a trespass claim unless physical boundaries are crossed). Ms. Litt and Ms. Barnett would, of course, be liable for their fraudulent acts and other misrepresentations. As previously noted, the newsgathering privilege does not give the press license to violate laws of general applicability. See supra note 141 and accompanying text.

177. See, e.g., Copeland v. Hubbard Broad., 526 N.W.2d 402, 405 (Minn. Ct. App. 1995). The Court in Copeland distinguished Baugh on the facts. In Baugh, the broadcaster was granted permission to enter the premises and film events in the home, so long as the film was not shown on television. Baugh, 828 F. Supp. at 756. The trespass claim, filed after the tape was subsequently aired, failed. Id. at 756-57. In Copeland, by contrast, the plaintiffs never consented to any videotaping, and the court found that the use of hidden cameras could constitute a trespass. See Copeland, 526 N.W. 2d at 404-05. 178. See supra text accompanying notes 147-77.

179. This method of analysis not only produces like results, but does so without potentially proscribing the use of undercover reporting techniques in other cases. Since the means used by Ms. Litt and Ms. Barnett were surely “routine” and the subject matter of their investigation was undoubtably “highly charged with the public interest,” absent less intrusive means, their investigation would have been acceptable.

Even some of the jurors recognized the intrinsic value of the PrimeTime Live story, despite the exclusion of its content from evidence. “I didn’t want to give [Food Lion] anything,” said one juror, “I

was willing to forgive them for what they were trying to do, because what I seen in court, Food Lion was guilty. They never denied selling rotten meat or tainted meat.” See Singer, supra note 138. 180. See supra note 138.

181. Perhaps if PrimeTime Live had demonstrated some respect for Food Lion’s privacy, the undercover investigation would have appeared less offensive to the jury. See Singer, supra note 138.

182. As with most strict scrutiny cases, this standard is rarely met, thus protecting the subject’s privacy in all but the most extreme of cases where the First Amendment interests supersede privacy concerns.

183. Rafferty v. Hartford Courant Co., 416 A.2d 1215, 1216-17 (Conn. Super. Ct. 1980).

184. Delan v. CBS, Inc., 445 N.YS.2d 898, 906 (Sup. Ct. 1981) (quoting Le Mistral, Inc. v. Columbia Broad. Sys., 402 N.Y.S.2d 815 (Sup. Ct. 1978)). See also CO. CoNN. CONST. art. I, 4 (“Every citizen may freely speak, write and publish his sentiments on all subjects, being responsible for the abuse of that liberty.”).

185. See text accompanying supra note 1.


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