Margaret Gilligan

Media Law and Ethics

Research Paper
4/22/15
Thesis
Americans do not have a Constitutional right to privacy.

Many Americans believe they have a legal right to privacy. However, having a
legal right to privacy is a hard concept to prove. Many people believe that defining
privacy is easy, but they are wrong. It is easier to distinguish what is libel, rather than
what is a privacy right. Not only is there no mention of privacy in the constitution, but
with the issue of privacy so greatly debated in society, one questions the validity of
having any kind of privacy. Trying to determine what degree of privacy a person is
entitled to, depending on his status in society or the situation being of public concern, is a
huge issue related to privacy. The advancement of technology still persists as the number
one reason why it is so hard to pinpoint where the legal right to privacy lies. There are
always risks in peoples lives about what information gets out and how it gets out. There
are many different reasons why the right to privacy is almost nowhere in the modern day
world, and the only counter argument points to the individuals personal code of ethics.
The right to privacy from the ethical standpoint keeps each person in check to respect the
privacy of the other. This standard of social responsibility with each citizen holding
themselves accountable for their actions seems to be the only way privacy can be valued
in America. Therefore, in most situations, the right to privacy is not a luxury that exists
in the American culture.

There is no mention of Americans right to privacy in the United States

Constitution. The Constitution was drawn up over 200 years ago to be a list of rules that
Americans are obligated to abide by, and the item of privacy is not included in it. Even
though the Bill of Rights reflects some expectations of privacy that was relevant years
ago, it no longer pertains to the American society today. Privacy laws are very young, and
have only been around for about 125 years. In years past, there was never a need for
privacy laws. People never needed to worry about their privacy rights being violated. It
wasnt until the end of the 19th century that the need for privacy became a public issue in
the United States. The traditional sense of respecting an individual persons privacy was
gone. People, including those associated with the government and the press, began to
violate those expectations of privacy.
Times were changing, and so was the sense of privacy. Information about another
individual meant to remain private became public knowledge. Even the notion of libel,
trespassing and other aggressive acts to obtain information about a person became the
norm. Samuel D. Warren and Louis D. Brandeis, two lawyers from Boston, saw the need
for change in the modern world due to these privacy violations. They published a brief
but very powerful article, The Right to Privacy, about an individuals legal right to
privacy, and began their article with "the individual shall have full protection in person
and in property. The biggest concern for Warren and Brandeis then was having privacy
from the tabloids. They did not have issues many face today with secret cameras,
tracking devices, computer cookies and the different ways websites have advanced to
save personal information. Although many laws have been made to protect the peoples

right to privacy and the right to be let alone, there is no way to safely claim that
Americans have a legal right to privacy.
Many Americans believe the Fourth Amendment, the right to be safe in your
home and safe from searches, and Fourteenth Amendment, concerning private property
for public use, gives them the right to privacy. However, there is a lot of grey area in
these amendments. There is no clear definition of what privacy a person is entitled,
especially since these amendments were drawn up years ago. Many things that were
relevant then, dont pertain to society today. Anything could happen, and depending on
the situation, that right to privacy may be broken at anytime.
Supreme Court Justice Antonion Scalia is an adamant believer in the Constitution
being dead, dead, dead. He believes it is no longer a living document, and needs to
be interpreted differently to adjust to modern times. The Bill of Rights containing certain
guidelines related to protecting ones privacy is still not convincing enough for Scalia and
many others who believe these documents are outdated. Privacy laws vary from state-tostate, but the four privacy torts stay the same: using a persons name or likeness,
intruding on a persons solitude, sharing private facts about a person, and publishing
material that could put an individual in false light. Even though these torts are used in all
but three states, North Dakota, Vermont, and Wyoming, how they are interpreted and
used in society varies from state-to-state.
Privacy has different meanings for different generations, different places, different
cultures, and even different types of people. Not only does it depend on who the person
is, but also where they are, and if the circumstance in which they are involved in is of
public concern. Whether a person is in a private or public place can be one of the

biggest concerns of privacy. The big question is whether or not the individual has a
reasonable expectation of privacy. Take the Spilfogel v. Fox Broadcasting Co. case from
2011. Although the woman was filmed for COPS without her knowledge, she lost the
case because she was driving around on public roads, and therefore did not have a legal
expectation of privacy.
Another factor is the degree of privacy a person can have, and distinguishing if
that person is a private figure or public figure in society. This standard was set in Gertz
v. Welch in 1974, differentiating public from private figures.
A person who is considered by society to be a private person will receive more
privacy protection from the law than a public figure. Public figures, including
celebrities, well-known individuals and government officials, have much more limited
expectations of privacy. Their lives are constantly in the public eye from constant
reporting, paparazzi, and simply from any person posting pictures and videos of them on
social media sites. Individuals associated with public persons, also known as
involuntary public figures, and family members are often exempt from their privacy
rights due to their association with the public person. Although there are limits to how
detailed a person can be in publishing information concerning a public figures private
life, the criteria are miniscule.
In Virgil v. Times Inc., facts were printed about famous body surfer Mike Virgil.
He was embarrassed about the public knowing certain facts about him, and he tried to
sue. The court did not agree. They said even though some of the details about Virgil
were embarrassing, they gave a better idea of who he was, and gave more insight into his

life and character. Therefore, the court ruled it was not an invasion of Virgils privacy to
have the facts printed about him.
Another problem in society is each person has his or her own definition of what
constitutes personal privacy. What may be considered a private matter to one individual
may not be as big of a deal to another. If the American people have problems defining
what a persons legal right to privacy is, one can see how challenging is can be for the
courts to reach such a decision.
The advancement of technology is another reason why privacy today does not
exist. The evolvement of the Internet, social media, cell phones and cameras in the
modern day world make it is very difficult to keep what information should be private,
actually kept private. Personal cell phones use satellite and are therefore considered
public information. That private conversation one might have with another person isnt
so private anymore. The government always has the option to listen in on cell phone
conversations, if it is of national interest. Many people are not aware that any
information posted on social media sites such as Facebook and Instagram are forever
public information. The pictures, videos and post updates a person might have posted
several years before in high school or college, are still floating around somewhere. An
issue came up in 2012 regarding Facebooks privacy laws and its regulations. The FTC
charged the social media site with violating privacy rights associated with peoples
personal information. Even though some of the policies were reworded and changed,
every person should know that anything put on the Internet is public information.
An individual who tried hard enough to access someones personal information
really could. The risk of hackers and cyber thieves has become a huge issue in society.

An incident this year showed cyber thieves had infiltrated over 100 banks worldwide.
They managed to steal $1 billion from hacking into different companies bank security
systems. How should this make the American people feel? The invention of the Internet
supports the argument that people truly have no sense of privacy.
As the advancement of technology progresses, so does the risk of having personal
information of any kind stolen and released to the public. People constantly rely on
technology to access bank accounts, school records, and now even health records are
being made available online. Doctor-patient confidentiality is revered as one of the few
actual private situations in the modern day world. In Barber v. Times, the woman in the
hospital room had a legal expectation to privacy, and therefore won her case. However,
now that medical records can be accessed online, it is only a matter of time before
hospital systems can be hacked into and the right to privacy, gone.
Cameras are another reason people today do not actually have a right to privacy.
The advancement of the camera lens has made it possible to capture images from far
away. Now phones have just as good if not better options than a regular camera
Therefore, anyone can post or leak private photos of any individual at anytime,
anywhere. Although a person may be standing on public property, if they manage to
snap a picture of someone in their home, how does the court decide if the photographer
has in some way violated the individuals privacy rights by snapping the picture? The
photographer was on public property, so technically he would be safe as far as the
privacy laws go. When Kate Middletons topless photos surfaced the Internet a couple
years ago, she was able to win her case. However, there are many reasons to believe if

the pictures were taken on American soil, the court would have never ruled in her favor.
Because of cameras, leading a private life and having personal privacy is impossible.
The counter argument is the American people have a right to privacy due to the
ethical grounds by which each citizen is bound. This is also known as social
responsibility, and it is imperative for each individual to respect the privacy of others.
Privacy laws were never infiltrated into society until the last century because people
before that time had more respect for the private lives of others. Surely there were
celebrities in the U.S. during that time, but the morals of the American people have
changed dramatically since then.
The constant drive and need for current news around the clock has dramatically
changed our culture. The changes and advances in technology have been a huge factor in
changing peoples ethical perception. The Internet has given journalists, reporters and
even the average citizen much more access to information that was previously never
available that it becomes tempting. As Don Pember and Clay Calvert so vividly stated in
the Mass Media Law book, it is better for journalists to ask themselves not only can they
legally publish the material, but if they should publish it. In the world today, there is
more pressure on people in government, media, and even private citizens to still keep a
standard of privacy to preserve what little personal privacy the American people have
left.
However, staying strong and holding to ones ethical beliefs to protect the privacy
of another person can be a challenge. Take a journalist for instance: he has ethical
standards to which he holds himself accountable in the media profession. It is his duty to
protect the identity of his news sources out of respect to their privacy. Then a story comes

around, and despite it being contrary to his ethical beliefs, it is of public concern in the
eyes of the people and the government. These are daily challenges of journalists and
reporters today. Most situations that fall into the category of legitimate public concern,
contrary to the journalists personal ethical beliefs, the information will most likely be
shown to the public. That is how the world operates now. However, if the journalist
insists on keeping the identity of the source confidential, in a court of law he will be
forced to give up his evidence. If a journalist is holding a document or concealing
information crucial in the eyes of the public, he will get a warrant to search his work
place or home, or he will be subpoenaed. He will be required to give up his sources and
any evidence needed by the court regardless of his ethical beliefs. Otherwise, jail time is
in the cards. Although in the past, reporters have tried to claim reporters privilege and
their rights to free speech and freedom of the press, it is often denied.
In Branzburg vs. Hayes, the Supreme Court ruled the First Amendment does not
protect journalists from revealing their sources. If the average citizen is required to give
up information when requested by the court, then reporters and journalists should be held
to the same standard. Later in 1980, the Privacy Protection Act was passed by Congress
to try and give reporters and journalists a little bit more protection from revealing their
confidential information and sources. This shows how there truly is no privacy for any
individual, no matter their ethical beliefs.
The American society is one that does not believe keeping secrets or respecting
citizens privacy. If there is news to share or to expose about another, there is no stopping
reporters, journalists and even average citizens from reporting about it. This further
proves no person has a legal right to privacy. Without a statement in the Constitution,

explicitly defining the rights of privacy is a challenge in the American society.

Distinguishing who is and who isnt allowed certain rights of privacy, and when they are
allowed such rights, has become a steady problem. With constantly changing technology
in the world and especially with the advancement of the Internet, Americans can
rightfully say they do not have a legal right to privacy. As the right to privacy is not a
value the modern day people respect, it is safe to say privacy does not exist in the
American culture.

References
Sullivan, B. (2006, October 17). Privacy under attack, but does anybody care? NBCNews.
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Flatow, N. (2013, January 29). Justice Scalia: The Constitution is 'Dead, Dead, Dead'
Retrieved March 25, 2015, from
http://thinkprogress.org/justice/2013/01/29/1511841/justice-scalia-the-constitution-isdead-dead-dead/
Pember, D., & Calvert, C. (2015). Mass Media Law (19th ed.). New York City, New
York: McGraw-Hill Education.
Chaney, J. (2012, September 14). On the Kate Middleton topless photos and what
constitutes a violation of celebrity privacy. The Washington Post. Retrieved March 25,
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