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

2. Four types of privacy law

3. Commercial appropriation of name or likeness

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

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

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

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

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

9. Not protected

10. Protected “Bush, Cheney, and Rumsfeld”

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

12. Disclosure of private facts

13. Embarrassing private facts

14. Disclosure of private facts Embarrassing private facts Not newsworthy

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

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

17. False light

18. “Libel Jr.”

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

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

21. Intrusion

22. Intentional invasion

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

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

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

26. Newsgathering and publication Intrusion pertains solely to newsgathering

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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