The Right (or No Right) to Privacy

The growing national conversation about privacy is a curious thing

The growing national conversation about privacy is a curious thing. There seems to be no generally accepted definition of privacy or agreement on whose privacy is to be protected. Ranging from the newsroom to the bedroom, it’s a puzzle to reporters and editors.
Privacy in public life already was dying when the news media and historians finally wrote about the philandering of FDR and JFK and segregationist Sen. Strom Thurmond’s mixed-race child.
For public figures, any remaining privacy illusions died with the National Enquirer photo of beauty queen Dona Rice sitting on presidential aspirant Gary Hart’s lap while Mrs. Hart remained in Colorado.
In today’s hypersexualized and celebrity-crazed culture, no one under 60 can probably imagine the old newsroom admonition, “never question a woman’s virtue in print.” Today, unmarried celebrities advertise their affairs and brag in the news media about the fathers/mothers of their children.
At the same time, women face cameras to talk about being raped and men and women forgo anonymity when discussing how combat-related PTSD erodes their marriages.
However, in all of today’s controversies over “privacy,” there is little mention of the old bugaboo of intrusive news media. Maybe staff and budget cuts have left us less aggressive or many websites are more invasive. I don’t know, but the whole privacy business raises some questions: If privacy means “the right to be left alone,” then how do we explain millions using Facebook and young celebrities posting nude and/or compromising photos online or to iCloud or other sites?
If privacy means personal freedom from constant surveillance, why do we accept ubiquitous government and corporate closed circuit “security” cameras? If privacy means anything, why haven’t Americans taken to the streets over NSA saving every phone or email message or businesses tracking our online searches and credit/debit card purchases and then selling that information? With all of this snooping and exposure, why do we even have an expectation of privacy?
Or for many people, why even think they want to be left alone or fear they will be?
And I haven’t even gotten to idiotic teen and inexplicable adult sexting, or nasty “revenge porn”, where former spouses and/or lovers post compromising images.
Privacy is a modern idea. There was little human activity for millennia that lacked a village or intimate audience. That helps explain why there is no explicit right to privacy in the U.S. Constitution.
Rather, it developed from an influential 1890 Harvard Law Review article, “The Right to Privacy,” co-authored by Louis Brandeis. Brandeis said laws against trespass, libel, etc., didn’t protect people from the “too-enterprising press, the photographer, or the possessor of any other modern device for rewording or reproducing scenes or sounds.”
For him, fellow elites needed protection against scandal-mongering journalists.
By 1928, Brandeis, then a U.S. Supreme Court justice, expanded his privacy theory to cope with new technology: wiretapping. He described “the right to be left alone” as “the most comprehensive of rights, and the right most valued by a free people.”
Technology again is at the heart of the current debate and Jennifer Lawrence and Edward Snowden can take much of the credit for making us rethink privacy.
Lawrence is enough of a star to draw media attention to her embarrassment after hackers posted her cloud-based photos for all to see. Invoking copyright law persuaded some sites to take down her images but there was no protection in privacy law.
Snowden’s on the run after using government documents to show how NSA spies on us and allies abroad. He’s a modern Man Without A Country but his revelations in the news media moved cell phone makers to add powerful encryption software to their latest models to frustrate snoops.
I’m amused at how this put our intelligence agencies in a tizzy; they couldn’t protect their own secrets but they still want to know ours.
So I’m left with a shrinking private realm and reduced expectation of privacy when I leave it: a public building, a shopping mall, an airport terminal. Meanwhile, I’m free to ponder how reporters used to protect what then was private.
When cancer was a disease that dared not speak its name, obits said victims died of a “long illness.” By the time President Nixon announced the “war on cancer” in 1971, a more modern understanding of privacy was taking hold and cancer became “cancer.” Now, cancers seem to be diseases du jour with a ribbon, walk or run.
Suicide evokes mixed reactions. We interview people who abandon privacy to talk about planning their deaths and when facts and circumstances are newsworthy, we write about “self-inflicted” fatal wounds. But a stigma still affects our coverage of suicide victims and their families. It reflects belief that life belongs to God and suicide usurps God’s power over life and death.
In some groups, a suicide cannot be buried in hallowed ground. Sensitive to that, reporters sometimes embrace the euphemism “died suddenly” without identifying any cause. Journalists also can be complicit with compassionate clergy who assert the victim was “not of sound mind” and, therefore, free of the taint of sin. Exceptions tend to involve youngsters who kill themselves during autoerotic asphyxiation or because of bullying, an inability to cope with addiction, etc. Often, families ask us to write explicitly to warn others.
Rape is a vexing challenge to journalists’ concern for privacy. For decades, “criminal assault” was the euphemism and no one would publish the name of a rape victim; many women said identification would be a second assault.
That was clear after Patricia Bowman accused William Kennedy Smith of rape at Uncle Ted’s Palm Beach estate. Within hours, she was under siege. Beyond going to police, she did not identify herself publicly. I don’t know who made her name public but it was a journalists’ frenzy.
Not to be bested by tabloids, the New York Times did a long, deeply reported hatchet job on the reputations of Bowman and her mother. It was a brutal and unjustified assault on their privacy.
Would it happen again? Recall the furor after a female entertainer accused Duke University lacrosse players of gang rape at a private party where she perfomed. The consensus after investigations is that she lied. But her life, her family, her work, everything, became fair game for reporters.
At the same time, young women increasingly are going public to protest their rapes and official indifference. Their targets include college officials who dissuade women from pressing charges or going public by telling them about the additional pain of losing their privacy.
Some high profile cases - often involving athletes - demonstrate to accusers how they surrender any privacy. If an accuser or victim wants to go public, reporters will often accommodate them. Coincidentally, there is a growing practice of reporting the names or other identifiers of women and men who claim sexual harassment or assault short of rape.
Meanwhile, courts say there is a privacy realm where the government has no compelling interest: the bedroom. A 1965 U.S. Supreme Court decision created a constitutional right to privacy as well as striking down state laws against contraception and information about birth control. Privacy remains an issue, however; at what age can a girl or woman buy birth control and whether she can do so anonymously? A woman’s right to privacy also was protected in the 1973 Roe v. Wade decision granting a right to abortion. In a battle rich in religious symbolism - life belongs to God - Americans have not resolved questions of access to abortion and a woman’s right to privacy in seeking and having an abortion. All of these changes and contradictions leave the news media to puzzle over when to respect privacy and when the violation of privacy can be justified.

Curmudgeon notes:

• Editors who know better often grab something off the Internet and use it without credit. It’s an adult version of students using online material without attribution. We call it plagiarism. But a new and knowing evil twist was added by the far-right Britain First and Australian Sen. Jacqui Lambie in their separate campaigns to ban the burqa. They are using a 2005 photo of Lt. Col. Malalai Kakar, a pioneering Afghan police woman, disguised in a burqa as an example of Islamist extremism. That Kakar was assassinated by Taliban gunmen doesn’t bother Britain First and Lambie; they continue to use the photo to illustrate the opposite of what it showed.

• I don’t go to many movies but I want to see Kill the Messenger. It’s based on Gary Webb’s troubled life after he wrote that the CIA financed Nicaraguan Contras by distributing crack in LA ghettos. The series, Dark Alliance, appeared in the San Jose Mercury News.
Webb was from the Cincinnati area and went to school here. In the film, Jeremy Renner plays Webb. Here’s what the Daily Beast said in a longer interview with Renner: “Despite winning a Pulitzer, Webb’s series ignited a media war, with numerous other outlets like The Washington Post and the Los Angeles Times - with the help of the CIA - aiming to discredit his reporting. He was demoted at the Mercury News, and left the paper in 1997. Seven years later, he was found dead with two gunshot wounds to the head in what was ruled a suicide.”

• Moody’s Investors Service is “negative” for papers and magazines for at least the coming year. summarized the report, saying gains for digital subscriptions will plateau quickly and growth will slow. Moreover, the newspaper and magazine share of ads will continue to decline as we turn to search engines, social media and digital video.
Finally, jimromenesko wrote, “Overall, Moody’s sees little evidence that the US newspaper and magazine industry will generate sufficient income from digital subscriber fees, nonprint advertising or marketing services over the new year to offset stress on print volumes and pricing.”
To which I’d add, this continues a scary trend. Traditional print media are finding how little they can charge advertisers compared to what they charged by the column inch or page. Colleagues tell me online ads yield about 10% of what print does/did. That’s long been an estimate generally of online revenue. Scarier still is the seeming shift at the Cincinnati Enquirer away from print to emphasize online “products.” I hope the daily survives long enough to capture the under 40s profitably while we print fans expire and take our subscriptions into the hereafter.

• Years ago, under a Republican president, the USEPA in Cincinnati appeared under orders to hide anything positive about environmental regulation/protection. One man called about his son-in-law getting a national agency award but Cincinnati officials wouldn’t tell reporters. It seems Obama isn’t much better. has been reporting on USEPA inaction where Texas regulators ignore air pollution from fracking. described USEPA obfuscation this way: “A journalist calls the press office to schedule an interview but instead is told to submit written questions. Once these are in, a press officer gets answers from scientists or other officials and then crafts a written response. In most cases, nobody involved in the process—not even the EPA press officers—will agree to be quoted by name. Journalists object to this policy because clarity and accuracy are easily compromised when they're forced to discuss complex issues through intermediaries who aren't subject-matter experts. To ask follow-up questions, the laborious process must begin all over again, with no opportunity for the natural give-and-take of a conversation.”

• What an era to be an infectious disease specialist: swine flu, Asian bird flu, SARS, resurgent measles, long-suppressed polio erupting in Muslim countries, and now, Ebola. Meanwhile, the news media tire of images of Africa - how many moon suits and corpses can they show - and we get stand ups by American TV reporters in front of U.S. hospitals that have an Ebola patient or announce they are ready to take Ebola patients in their medical isolation wards.
By and large, the news media have done a pretty good job on Ebola. It is awful but not yet in this country. It is hard to share; the virus hasn’t mutated yet into an airborne killer. That makes reasoned coverage easier. Publicity given to screwups at the Dallas hospital where a Liberian visitor, Thomas E. Duncan, was taken, quickly alerted hospitals all over the country: vital - as in potentially lethal - information can fail to reach teams caring for an Ebola patient.
No one paid attention to intake information during Duncan’s first ER visit. It would have told them he arrived from Libeia, sort of Ebola central in West Africa. He was sent home with some pills. On his second visit, the medical team didn’t get that information immediately. Then there was the delay in moving his host family out of their contaminated apartment and at least four days to find anyone to clean up the apartment. That kind of news coverage is reporting at its best. If someone is embarrassed, good. Meanwhile, I have questions: how long is the Ebola virus lethal on sheets, sinks, floors, mattresses, etc.? What kind of incineration kills the virus when contaminated clothing and furnishing are burned?

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