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Saturday, November 21, 2009
Journalism Ethics Run Amuck, Once Again

The Associated Press published a story yesterday on a very tragic, sensitive and private matter involving the death of a famous professional athlete's mother. The report not only discusses details surrounding the death, but also personal information about the player's relationship with his mother.

The issue here is not whether the facts of this publication are untrue. The disclosure of private facts tort claim subjects the press to liability for the publication of truthful private matters that would be highly offensive to a reasonable person and that are not of legitimate public concern. In many respects, we as a society have become brainwashed into thinking that the press has a constitutional privilege to publish whatever truthful matters it wants, especially when the matter involves a public figure. But surprisingly, the Supreme Court has given very limited attention to the constitutional privilege of the press to publish truthful private facts and has addressed the issue in only one case involving a public disclosure of private facts tort claim (see Cox Broadcasting Corp. v. Cohn, 420 U.S. 469 (1975)), and its holding in that case was deliberately and explicitly narrow. Such little guidance by the Supreme Court naturally leaves state and federal courts wide discretion to determine what constitutes a "legitimate public concern" (a/k/a newsworthiness) and to balance the conflicting interests of individual privacy and press freedom.

As I discuss at length in my law review article Tort Law and Journalism Ethics, state and federal courts have proffered varying definitions of newsworthiness. The California Supreme Court in Shulman v. Group W Productions, Inc., 955 P.2d 469 (Cal. 1998) recognized that a broad "public domain" view of the First Amendment privilege, i.e. any information readily available to the public, would swallow the public disclosure of private facts claim. Regarding matters involving public figures, the court set forth what I believe is the proper standard for newsworthiness: "[T]he evaluation of newsworthiness depends on the degree of intrusion and the extent to which the plaintiff played an important role in public events, and thus on a comparison between the information revealed and the nature of the activity or event that brought the plaintiff to public attention. Some reasonable proportion is . . . to be maintained between the events or activity that makes the individual a public figure and the private facts to which publicity is given."

In other words, there must be a nexus or connection between the private information published and the public activity that makes the person a public figure. Here is an excerpt from my law review article:
"The relevance/nexus factor is a critical component in balancing the First Amendment and journalism ethics standards because such an inquiry takes into account the purpose, or reason, for the publication of the matter. If there is a remote nexus or connection between the truthful matter and the event or activity that brought the plaintiff to public attention or that made him or her a public figure, then the societal First Amendment interest in the information is much less compelling because the purpose for publication becomes primarily one of sensational prying into private affairs for its own sake or one of pandering to lurid curiosity."
There is a very tenuous connection between the details surrounding the death of a player's mother and what makes the player a public figure, that being his status as a professional athlete. This publication, having no social value and intruding into an extremely tragic, private and sensitive personal matter, turns journalism ethics standards on its head.


Agree with the overall theme of the post but wasn't the relationship between Brees and his mother the subject of some news a couple of years ago when she was running for public office and tried to invoke his name in some of her ads? Not saying that this would be enough to make it legally "newsworthy," but it would certainly tip the scale more in that direction as opposed to a situation where it was just a story on the death of a player's mother without and background for why it should be reported on.

Anonymous Anonymous -- 11/22/2009 6:54 PM  

A very interesting article, which I plan in read in more detail. You attempted to tackle the issue with a very broad attack and I commend you for it.

At the outset, a few issues come to my mind. What about bloggers? Some of the most outrageous things about athletes/coaches occur in blogs and the courts (and state Shield laws) for that matter have not been consistent about that issue. Are journalism ethics codes applicable to Joe Blogger who may or not get paid to write pieces attacking athletes and coaches? Also, what about commentators and the issue of opinion? Can opinions be based on embarassing private facts that no one should know? (e.g. Milkowich v. Lorrain Journal)

As you can see, much to chew on!

Blogger Mark Conrad -- 11/23/2009 1:31 PM  

Mark, thanks. Your question pertains to the scope of who is covered by journalism ethics codes(i.e. bloggers), which is an interesting question, but let's deal first with the primary journalists writing news stories like this one who undoubtedly ARE subject to journalism ethics codes.

The question is, what can be done about the lack of internal enforcement of journalism ethics codes when there is limited incentive to enforce them? (and I discuss the reasons for that at length in my article) If there is no internal enforcement mechanism, then perhaps external enforcement is (unfortunately) necessary.

Blogger Rick Karcher -- 11/23/2009 4:08 PM  

What you fail to see in this case is that the personal information was made available through public offices.

From the original article

"Grand County coroner Brenda Bock concluded this week..."
> Since the coroner is funded by the taxpayers, it is most certainly of "legitimate public concern" to know how tax dollars are being spent.

"The Austin American Statesman reported that three days before Brees died, the Texas attorney general's office subpoenaed her business records. She had allegedly..."
> Same point, mutatis mutandis.

"Relations between Drew Brees and his mother were strained at times and the quarterback asked her to stop using his picture in TV commercials touting her candidacy for a Texas appeals court seat in 2006."
> Since she was running for a public office, this information directly concerns those whose voting preferences were influenced by the commercials, who are presumably the public.

So by your own standard of legitimate public concern, and given the above examples as legitimate (at least "to a reasonable person"), no "external enforcement" is necessary.
On the other hand, if you were offended that your tax dollars were unnecessarily spent on private matters, offense would be understandable. But the journalist is independent of that offense.

Anonymous Ryan -- 11/24/2009 12:53 PM  

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