Constitution Day, Freedoms, and Responsibility in Journalism
Recall the story about the UMass Dartmouth student who claimed to have been visited by federal agents after he ordered a book through inter-library loan. The story hit all the right buttons with the student's professors (one of whom expressed worries that the feds were watching him) and journalists (who zealously guard First Amendment privileges, which seemed to be threatened when a student was harassed for wanting to read a book). As it happened, that story was full of holes and quickly fell apart. "The feds ate my homework" is just the kind of juicy story that will attract attention.
On Constitution Day, I thought we would look a little more at the First Amendment to the Bill of Rights, which guarantees five freedoms -- press, speech, religion, assembly, and petition.
On Constitution Day, I thought we would look a little more at the First Amendment to the Bill of Rights, which guarantees five freedoms -- press, speech, religion, assembly, and petition.
Note that all these rights pertain to the federal government. The
actions of state schools, which typically receive significant federal
aid, are bound by the First Amendment, but a private school is not. (In
class I emphasized that a private college is bound by the principles of
academic freedom; SHU wouldn't be able to attract quality faculty
members if they worried that the would be told what they could or could
not teach in the classroom. An exception in Catholic colleges, and one
that has caused some friction elsewhere, is that Catholic faculty
members who teach Catholic theology have to get permission in order to
ensure that what they say is Catholic doctrine really is
Catholic doctrine. That doesn't mean that the faculty member has to be
Catholic or can't criticize the church, but all that is another story.)
Your First Amendment right to free speech prevents the federal government from arresting you simply because you are making a political statement. If you are making a political statement while trespassing, drunk, streaking, vandalizing, or giving away military secrets, you can still be arrested and prosecuted.
Should you choose to exercise your First Amendment right to free speech by standing on a street corner and causing a traffic jam, the cops can haul you away for causing the traffic jam. (Everyone else's right to use the road supersedes your right to speech right then and there; you can still apply for a permit, which may require you to pay for police officers to direct traffic around your gathering, work crews to put up fences and clean up the trash afterwards. The First Amendment does not force society to give you a platform from which to speak.)
Should you choose to express your free speech rights in the employee break room and spread lies about your boss, you can be fired and sued for slander (for spoken speech) and libel (for printed speech).
If you find a copy of your boss's medical bills in the office copier, and you learn that your boss has a debilitating medical condition, can you use your First Amendment free press rights to make copies of that bill and spread it all over the company? You wouldn't be lying -- you'd be telling the truth! But even if your boss made a mistake by leaving that photocopy in a public place, you still don't have the right to publish private information about a private citizen -- your boss. If you are sued for spreading stories about your boss (or a co-worker, or employee, etc.), to avoid being convicted you will have to prove -- at your own expense -- that every one of your statements is true. (If you are sued for a journalism article, your newspaper will pay for your legal defense, but if you are sued for something you post on your blog or a rant you post on YouTube, you're on your own.)
Privacy law makes a distinction between a private citizen who plays no role in the public eye, and a public citizen like a politician or celebrity. A photographer who snaps a shot of a private citizen in a public area if the photo is newsworthy; consider all those photos of dust-covered New Yorkers after the terrorist attacks in 2001, or photos of New Orleans residents wading through the flooded streets in the aftermath of Katrina. A photographer does not have to get permission for those photographs to run. Compare these newsworthy photos with a photograph of a woman sunbathing in her backyard, or a man being pooped on by a pigeon. If the woman is a member of congress, and the man is a famous actor, those photos would potentially count as celebrity news; but photos that expose ordinary citizens to undue attention are not good journalism, and could be grounds for a lawsuit.
Photographs of a suspect being arrested may be dramatic, particularly if the suspect is noteworthy, but the captions have to be carefully written. You cannot write "Police arrest Jim Smith for robbing a pedestrian on Park Street this morning." You can say "Police arrested Jim Smith and charged him with this morning's Park Street robbery." (But be careful -- police often arrest people but release them without issuing charges. If police don't have enough evidence to convict someone of robbery, they might charge a suspect with assault and disorderly conduct instead of robbery. Sometimes police may "detain" someone at the scene, which could include cuffing the person and putting him or her in a police car, but only long enough to find out who is the victim and who is the suspect.)
Since celebrities and politicians regularly use the media to influence large groups of people, the media afford them less privacy. I mention this not in order to defend or even explain celebrity journalism, but rather to note that publishing photographs of ordinary citizens in embarrassing or awkward situations is not protected by the First Amendment. Different nations have different laws, but recently a Finnish teenager was fined for posting to YouTube a clip of his teacher singing Karaoke. (Even though the teacher chose to sing in a public venue, the student named the teacher and said she was "a lunatic" singing in a "mental hospital." (The student was fined over $4000,) In the US, recording somebody's voice without their knowledge -- even if you don't broadcast the recording -- could be grounds for a criminal wiretapping charge. (If you want to record an interview, ask the person whether it's OK, and on the recording say "Okay, I'm recording this now." But be careful -- being recorded makes some people nervous, and that could impact the quality of your interview.)
When citizens become politicians or celebrities, they should expect to be photographed in public, but they can still sue photographers who trespass, use telephoto lenses to peer into their houses, etc. (The celebrity news business is so profitable that plenty of photographers will take the risk.)
In summation, having the right to free speech and a free press is precious. Totalitarian governments always go after the free press as soon as they achieve power. A free press is vital for democracy to work. But just because you can speak or publish freely does not mean that you always should. The freedoms of press and speech do not give you license to publish lies or expose private details about the lives of ordinary citizens.
Your First Amendment right to free speech prevents the federal government from arresting you simply because you are making a political statement. If you are making a political statement while trespassing, drunk, streaking, vandalizing, or giving away military secrets, you can still be arrested and prosecuted.
Should you choose to exercise your First Amendment right to free speech by standing on a street corner and causing a traffic jam, the cops can haul you away for causing the traffic jam. (Everyone else's right to use the road supersedes your right to speech right then and there; you can still apply for a permit, which may require you to pay for police officers to direct traffic around your gathering, work crews to put up fences and clean up the trash afterwards. The First Amendment does not force society to give you a platform from which to speak.)
Should you choose to express your free speech rights in the employee break room and spread lies about your boss, you can be fired and sued for slander (for spoken speech) and libel (for printed speech).
If you find a copy of your boss's medical bills in the office copier, and you learn that your boss has a debilitating medical condition, can you use your First Amendment free press rights to make copies of that bill and spread it all over the company? You wouldn't be lying -- you'd be telling the truth! But even if your boss made a mistake by leaving that photocopy in a public place, you still don't have the right to publish private information about a private citizen -- your boss. If you are sued for spreading stories about your boss (or a co-worker, or employee, etc.), to avoid being convicted you will have to prove -- at your own expense -- that every one of your statements is true. (If you are sued for a journalism article, your newspaper will pay for your legal defense, but if you are sued for something you post on your blog or a rant you post on YouTube, you're on your own.)
Privacy law makes a distinction between a private citizen who plays no role in the public eye, and a public citizen like a politician or celebrity. A photographer who snaps a shot of a private citizen in a public area if the photo is newsworthy; consider all those photos of dust-covered New Yorkers after the terrorist attacks in 2001, or photos of New Orleans residents wading through the flooded streets in the aftermath of Katrina. A photographer does not have to get permission for those photographs to run. Compare these newsworthy photos with a photograph of a woman sunbathing in her backyard, or a man being pooped on by a pigeon. If the woman is a member of congress, and the man is a famous actor, those photos would potentially count as celebrity news; but photos that expose ordinary citizens to undue attention are not good journalism, and could be grounds for a lawsuit.
Photographs of a suspect being arrested may be dramatic, particularly if the suspect is noteworthy, but the captions have to be carefully written. You cannot write "Police arrest Jim Smith for robbing a pedestrian on Park Street this morning." You can say "Police arrested Jim Smith and charged him with this morning's Park Street robbery." (But be careful -- police often arrest people but release them without issuing charges. If police don't have enough evidence to convict someone of robbery, they might charge a suspect with assault and disorderly conduct instead of robbery. Sometimes police may "detain" someone at the scene, which could include cuffing the person and putting him or her in a police car, but only long enough to find out who is the victim and who is the suspect.)
Since celebrities and politicians regularly use the media to influence large groups of people, the media afford them less privacy. I mention this not in order to defend or even explain celebrity journalism, but rather to note that publishing photographs of ordinary citizens in embarrassing or awkward situations is not protected by the First Amendment. Different nations have different laws, but recently a Finnish teenager was fined for posting to YouTube a clip of his teacher singing Karaoke. (Even though the teacher chose to sing in a public venue, the student named the teacher and said she was "a lunatic" singing in a "mental hospital." (The student was fined over $4000,) In the US, recording somebody's voice without their knowledge -- even if you don't broadcast the recording -- could be grounds for a criminal wiretapping charge. (If you want to record an interview, ask the person whether it's OK, and on the recording say "Okay, I'm recording this now." But be careful -- being recorded makes some people nervous, and that could impact the quality of your interview.)
When citizens become politicians or celebrities, they should expect to be photographed in public, but they can still sue photographers who trespass, use telephoto lenses to peer into their houses, etc. (The celebrity news business is so profitable that plenty of photographers will take the risk.)
In summation, having the right to free speech and a free press is precious. Totalitarian governments always go after the free press as soon as they achieve power. A free press is vital for democracy to work. But just because you can speak or publish freely does not mean that you always should. The freedoms of press and speech do not give you license to publish lies or expose private details about the lives of ordinary citizens.
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