When freedom of the press and privacy collide: reconciling conflicts between fundamental democratic values Public Deposited

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  • March 22, 2019
  • Coyle, Erin K.
    • Affiliation: Hussman School of Journalism and Media
  • After Florida Star v. B.J.F. in 1989 applied a constitutional privilege for truthful publications of lawfully obtained information on matters of public significance to the disclosure tort, some scholars suggested Florida Star signaled the end of the tort, and perhaps other areas of privacy law. One legal scholar, however, warned that the Court's creation of narrow privileges in Florida Star and its progeny threatened to erode press freedom and the public's right to know. Such debate clarified that privacy torts addressing emotional harms resulting from publication conflict with the First Amendment right to publish. This dissertation analyzed if and how state high courts and federal appellate courts have reconciled free press values and privacy values when those sets of values conflicted in post-Florida Star privacy tort cases. It examined cases involving two publication- or publicity-based privacy torts--disclosure of private facts and appropriation--to identify how courts have attempted to reconcile these two sets of values considered fundamental in our democratic society. The analysis found that most rulings did not discuss clashes between free expression and privacy rights because the appeals were simply based on claims that lower courts erroneously applied the elements of the torts. And only about half did discuss or imply at least one democratic value undergirding free expression or privacy rights. If courts attempted to reconcile clashes between press freedom and privacy, they typically sought to identify the boundary between categories of privileged disclosures and categories of tortious disclosures and determined whether the facts at issue fell into the category of privileged publications or into the category of invasions of privacy. In those cases, courts typically found published information was protected under privileges for matters of public interest associated with audience-based free expression values. In fact, courts only ruled in favor of plaintiffs in cases involving non-media defendants when at least one privacy value was harmed and no free expression values were promoted. This dissertation concluded that the U.S. Supreme Court should establish a broader constitutional privilege for publications of matters of public interest by individual communicators as well as by the news media.
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  • Walden, Ruth C.
  • Open access

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