Courts wrestle with defining newsworthiness in privacy cases

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Michael Lambert

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The privacy suit brought by wrestler Hulk Hogan against Gawker will examine whether a videotape was newsworthy.

What is newsworthy?

When deciding whether to publish certain content, members of the news media answer this question on a daily basis.

But when courts attempt to define newsworthiness, the inquiry can be more complicated and could dictate the outcome of many high-stakes trials.

This March, a St. Petersburg, Florida court is set to consider the news value of a video clip featuring 62-year-old former professional wrestler Hulk Hogan having sex with Heather Cole Clem, the then-wife of Hogan’s friend and radio personality Bubba the Love Sponge Clem.

Gawker, the online blog that published the 101-second video clip of the 30-minute sex tape in 2012 after receiving the tape from an anonymous source, will be flanked opposite Hogan in court.

Hogan, who has lived his life in the public eye and has been outspoken about his sex life in a book and radio appearances, claims the release of the clip of the sex tape violated his privacy. After initially suing Gawker for copyright infringement in Florida federal court, Hogan later brought suit in Florida state court for $100 million in damages, asserting a claim of publication of private facts.

Under the theory of publication of private facts, Hogan, whose real name is Terry Bollea, alleges Gawker’s release of the video clip without his consent disclosed highly offensive private facts about himself. However, Gawker insists the video was newsworthy — a bar to private-fact claims under the First Amendment.

Thus, the question underlying the private-facts claim is whether Hogan’s sex tape is of a “legitimate public concern.” If the court concludes the publication of the video was newsworthy, the publication of private facts claim against Gawker will be dismissed.

Reporters should know that courts often assess newsworthiness differently than a journalist would in deciding whether to publish an article.

The standard to define newsworthiness and which party has the burden of proof varies state-by-state. In some states, plaintiffs bringing a publication of private facts claim must show the information disclosed was not newsworthy, but in other states, the defendant must raise newsworthiness as a defense. Some courts deem publishers to have a constitutional privilege to publish truthful information about newsworthy occurrences.

Generally, courts have taken an expansive view of newsworthiness, giving deference to the news media in order to encourage speech. In Shulman v. Group W Productions, Inc., the California Supreme Court wrote in 1998 that “liability for disclosure of private facts is limited ‘to the extreme case, thereby providing the breathing space needed by the press to properly exercise effective editorial judgment.’”

Although there is no streamlined test across the country to determine what is a legitimate public concern, various courts have opined on the subject and provided guidance for reporters.

Some questions a court may ask in deciding newsworthiness:

Does the information relate to any matter of political, social, or other concern to the community?

In Snyder v. Phelps, the U.S. Supreme Court considered a claim of emotional distress stemming from protests at a military funeral. Although the case did not involve a publication of private facts claim, the Court discussed what it considers newsworthy. In Snyder, the Court in 2011 found that speech is considered a matter of public concern when it can be “fairly considered as relating to any matter of political, social, or other concern to the community” or when it “is a subject of general interest and of value and concern to the public.”

The Court in Snyder also wrote that the provocative nature of speech should not factor into the question of newsworthiness, writing that a “statement’s arguably ‘inappropriate or controversial character . . . is irrelevant to the question whether it deals with a matter of public concern.’”

In Shulman v. Group W Productions, Inc., the California Supreme Court considered whether the broadcasting of video of a victim at an accident scene and inside an emergency helicopter was newsworthy. The California Supreme Court considered three main factors in ultimately concluding the broadcast was newsworthy: the social value of the facts published, the extent to which the article intruded into ostensibly private affairs, and whether the person voluntarily assumed a position of public notoriety.

What is the social value of publishing the information?

Courts generally find social value in topics such as crimes, accidents, deaths, fires, police activity, entertainment events, and activities of public officials; therefore, they are typically considered newsworthy.

For example, in Cinel v. Connick, the U.S. Court of Appeals for the Fifth Circuit in 1994 considered whether the broadcasting by local and national television stations of excerpts of a homemade videotape showing a Catholic priest having sex with a minor was a legitimate public concern. The Court found the video was newsworthy because it related to the guilt or innocence of criminal conduct by a community leader and concerned the Church's public response to the conduct.

When reporting on crimes or other public events, reporters should rely on public records, such as police reports, birth certificates, or records of judicial proceedings, whenever possible. Because these records are public, reporting on information found in them will likely shield reporters against a publication of private facts claim.

How far did the publication intrude into the private life of the subject?

The extent to which someone’s privacy is invaded could affect a court’s finding of newsworthiness. The more significant the privacy interest a reporter breached, the more likely a court will find the publication of the information is not newsworthy.

Although there is no clear standard to determine how much of a privacy invasion is too much, the U.S. Court of Appeals for the Ninth Circuit wrote in the 1995 case of Virgil v. Time, Inc., “The line is to be drawn when the publicity ceases to be the giving of information to which the public is entitled, and becomes a morbid and sensational prying into private lives for its own sake, with which a reasonable member of the public, with decent standards, would say that he had no concern.”

For example, in Buller v. Pulitzer Publishing Co., a reporter made an appointment with a psychic without revealing she was a reporter. The reporter then published an article about the appointment, portraying the psychic as a fraud. The Missouri Court of Appeals for the Eastern District in 1984 determined that the psychic’s discussions with clients were private and therefore, not newsworthy.

What is the subject’s status in the community? Did the subject voluntarily assume a position of public notoriety?

The public status of a person can alter a court’s evaluation of the newsworthiness of the publication. Courts are more likely to find information pertaining to public officials and celebrities to be newsworthy because the public has an increased interest in their lives, and if the person voluntarily chose to be a celebrity, they have affirmatively subjected themselves to the public spotlight.

In Lee v. Penthouse International Ltd., the U.S. District Court for the Central District of California found in 1997 that Penthouse magazine was not liable for publishing intimate photos of Tommy and Pamela Anderson Lee because the pictures complemented a newsworthy article describing their celebrity lives and careers and the photos were already published elsewhere.

The passage of time does not always reduce the status of a person when a court mulls newsworthiness. In Sidis v. F-R Publishing Corp., the U.S. Court of Appeals for the Second Circuit held in 1940 that the publication of details of the adult life of a child prodigy was newsworthy even though the subject of the publication was famous when he was 11 years old. The court noted the importance that the information reported related to why he was in the public eye in the first place.

However, the mere involvement of a celebrity does not mean the news media has full rein to publish any detail about the celebrity's life. In determining in 1998 that a sex tape between Bret Michaels and Pamela Anderson was not newsworthy, the U.S. District Court for the Central District of California in Michaels v. Internet Entertainment Group, Inc. wrote that “even people who voluntarily enter the public sphere retain a privacy interest in the most intimate details of their lives.”

Is there a connection between the information disclosed and the newsworthiness of the person or event involved in the publication?

Courts will consider the relationship between the events that brought the person into the public eye and the facts disclosed. A person can become an “involuntary public figure” when involved in an event of public importance, such as a crime or accident. When a person is thrust into the public spotlight because of a public event, facts traditionally considered not important to the public can become newsworthy if there is a connection between the facts disclosed and a matter of public interest.

For example, in Barber v. Time, Inc., Time magazine published an article about a rare eating disorder. In the story, the reporter used information about a woman who had the disorder. In 1942, the Missouri Supreme Court ruled the eating disorder was newsworthy, but the identity of the woman was not.

In Diaz v. Oakland Tribune, Inc., the California Court of Appeal for the First District determined in 1983 the fact that the first female student body president at a college was a transgender woman was not newsworthy because it was not related to her skills as student body president.

However, a year later in Sipple v. Chronicle Publishing Co., the California Court of Appeal for the First District in 1984 found that the sexual orientation of a man who saved Gerald Ford’s life was of legitimate public concern because his heroism contradicted stereotypes about gay people. According to the court, the question of whether President Ford delayed publicly thanking the man because of his sexuality also made the fact newsworthy.

What are the community standards and jury composition?

The human element of a jury can affect outcomes when newsworthiness is in question. Jurors in various jurisdictions may have different ideas about the social value of certain news, who is considered a public figure, and the depths to which reporters should dive into private lives.

The Hogan case is an example where the makeup of the jury may be a significant factor in shaping the outcome. Although attorneys for both parties will work to weed out biased jurors during voir dire, jurors in Florida may have preconceived opinions of the former wrestler and Gawker.

Although the debate over the newsworthiness of the sex tape is a major headline going into the trial, there have been other clashes between Hogan and the press within the past year.

This summer, Florida judge Pamela Campbell ordered that jurors will view the video clip Gawker published on a television monitor during the trial, but the monitor will be facing away from the rest of the courtroom. This concerns members of the news media who fear banning the video from open court sends a message to jurors that the video is private, which is precisely the issue at the heart of the trial.

Additionally, in October, the judge ruled Hogan was entitled to a forensic inspection of Gawker computers, servers, and email and text messages in order to investigate claims Gawker employees leaked evidence of Hogan engaging in a racist rant. The judge also denied Gawker’s motion to unseal discovery in the case.

Both Hogan and Gawker have much riding on the case, with the former wrestler seeking $100 million in damages. Such a large judgment could put Gawker out of business, but a large damage award would likely be appealed and potentially reduced.

Although the case will merely demonstrate one court’s view of what is newsworthy in 2016, arguments from both parties and the ultimate conclusion should be of note for reporters. With an internationally known plaintiff on one side seeking $100 million and an online publication testing the limits of its right to publish on the other, the Hogan trial itself will be newsworthy by any standard.