tv QA Author Amy Gajda on the Right to Privacy in the United States CSPAN October 30, 2022 11:00pm-12:02am EDT
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about this for wired magazine. there are several different questions attached to this. we know this is not enumerated in the constitution. how did our founders think about this concept of privacy? >> this suggests that there is no right to privacy. the ways the government can come in and tell us what we can and can't do in regard to personal decisions. the type of privacy i write about is the right to keep
personal information to ourselves. the right to not have others reveal that information. in this leaked opinion, justice alito suggests that there is a divergence. a different type of privacy. that is one of the problems in the u.s.. we do not use the word privacy in the constitution. that can lead to such confusion about it. i am talking about this privacy for private information. this started very early in the u.s.. even before the first amendment was ratified.
that act for the journalist involved or the publication, have you thought of that? prof. gajda: sure. that is a great question. and the question about whether or not criminal laws might come into play here. with regard to tort law, whether or not the publication politico could conceivably be liable for some sort of invasion of privacy, the answer is no. because even though justice alito wanted to keep this information secret, the law suggests when something is newsworthy, publications have the right to publish it. and certainly this draft opinion is decidedly newsworthy. so i doubt very much that justice alito would ever bring any sort of privacy claim against politico. but if he did, he would surely lose because there is news value. it tells us very likely that roe v. wade in a few weeks, no court would decide there was an invasion of privacy on these facts. susan: elon musk's acquisition
of twitter. we learn a lot about publishing in this digital age and elon musk is declaring he will make twitter an open forum. when you see all of this commentary that has thought about what he might do to twitter, what are you thinking about that? prof. gajda: one worry is that any open forum where anyone can say anything they like is that courts will come down even harder on media. when i say media i mean all forms, journalism to social media, including twitter and facebook. what has happened in the past is that when media published something private or when there are a social media posts that disdain individuals, courts will deal more slowly about changing the law to make it more responsive to plaintiffs in those cases.
so my worry is that if musk opens twitter to any sort of post, ultimately what will happen is that twitter itself will be harmed, as will then all media, conceivably. susan: ok. to that history. i encourage readers to look back in time farther than i will start, because there is much to learn on great stories about the early days of the republic. but i want to start with the men that authored the piece you referred to, sam warren and louis brandeis. louis brandeis is more familiar. who is sam warren? prof. gajda: he is very important in this essay. he was a lawyer from a very rich family.
he went to harvard law school, where he met louis brandeis. they went into practice together in boston. they had a law firm together. warren was of great interest to the media at the time. the reason why he was of such interest, and not louis brandeis, who was becoming more familiar as a lawyer, but sam warren, the reason why he was of such interest was because he was from a rich family. his family owns one of the largest paper mills in the country. they were millionaires. so the media was very interested in them.
but what really sparked media interest in sam warren was when he married the daughter of the secretary of state. politicians of the time were celebrities of the day. so when sam warren married the secretary of state's daughter, it caused headlines across the nation about the wedding. and then at that point sam warren in effect married into becoming a public figure and newspapers of the day were very interested in who he was, what parties he was having, what he was building on his property. so there was a lot of gossip in the paper at the time about the warrens. because his wife was the daughter of secretary of state,
he became good friends with president grover cleveland, who had his own interest in privacy and his own hatred of media because he had married, president cleveland had married a young woman who was his adopted daughter. her father had died. her father was cleveland's law partner. so he took care of her after her father's death. she had called him uncle. then when she turned 18 and he was nearing 50, they started to date. then she became mrs. grover cleveland when he was president.
and cleveland really despised media and really begged for privacy in his personal affairs, from what he considered his personal affairs. so it is pretty clear to me that grover cleveland had a lot to do with the arguments made in this essay titled the right to privacy. he did not like media, he had an awful lot to hide, not only regarding his relationship with what had been his adopted daughter, but the fact that there were allegations that he had a child before being married to anyone. so there was a great deal of gossip swirling about him and his private life. so he begs for privacy and he had sam warren, his lawyer, who could write about the importance of the right to privacy and how it is important to all of us, including politicians.
that point was made in the essay, the right to privacy. susan: you report that cleveland spoke at harvard and broke down in tears about the invasion of privacy and probably both the men witness that before writing the essay. this essay seems to be a real seminal point in your book. you come back to it throughout. what has the legacy been in the areas that you think about? prof. gajda: extraordinary. very often, courts and changemakers generally will refer to this 1890 law review article as starting the right to privacy in the united states. it's not really true, it was around for more than a century before, and yet a lot of people
believe that this is what started privacy. so it is referred to in cases of all sorts of privacy, from the type of privacy i write about to interests in autonomy, to search and seizure cases. any sort of privacy right, including access to government information, often refers to this law review article, even in 2022. so it remains this critically important piece that we still referred to today and people do not realize grover cleveland had a lot to do with it. susan: what happened to sam warren? prof. gajda: sadly, so louis brandeis became a very famous lawyer in the united states, even before joining the courts.
and he was the people's lawyer. so his star was certainly rising. and sam warren meantime was involved in the paper mill. he left law practice and ran his father's paper mill and some suggest that, his brother suggested that he had taken more money than he was due. his brother brought a claim in court and so that lawsuit was covered in media of the day, primarily in boston where the lawsuit was. sam warren was deeply concerned about the family revelations that might come out in media, and in 1910, he committed
suicide. so just as these headlines were being reported, he kills himself, conceivably over worries about what might come out in media. susan: before we leave the era, one of the points in your book is that the powerful often have more to hide and more recourses than everyday people. in the case of president cleveland, you are right that he weaponized privacy laws. prof. gajda: melvin chase was an important figure in journalism
in washington dc and he was called a bulldog. he was a black journalist and his newspaper was published to all, accredited by all, and he began an investigation into a cleveland appointee. grover cleveland did not like chase and believed that this investigation was wrong and when chase reported that the appointee had an effect sexually harassed women in the office, cleveland had chase arrested. and one of the arguments there was a privacy like argument, that if chase believed there was wrongdoing in the office, chase
should have gone to cleveland himself, and not have reported it in his newspaper, that the important thing was to reach grover cleveland, who could have then fired the appointee. a jury hears this argument and believes it. so a jury says they agree that chase went overboard by reporting it to the newspaper, he shouldn't have done it, even if true. so chase goes to jail for three months, hopes grover cleveland will set him free, and of course cleveland, who just despises media, refuses to and says in effect that chase will teach all journalists a lesson that they cannot report everything they want to without facing some sort of repressions. so that is the suggestion of privacy as a weapon.
the argument was that it was not everyone's business that the man had sexually harassed women in the office, that only the president had the right to know that information and that was improved by the fact that chase went to jail and cleveland went on to retire in princeton and live a fine life with his young wife. susan: you paint the picture of a pendulum swinging back and forth between the right to privacy and the right to publish. we went through the three point of the powerful having more secrets to hide. some other important points, technology frequently made
people more concerned about privacy rights throughout history as illustration, photographs, telegraphs during the civil war and on and on. as technology advanced, more publication, more concern. so i want to fast forward to the 20th century and talk about what happened to speech during world war i in this country. what was the attitude about people come up with all the concerns about infiltration, non-loyalists in the united states, what was happening in the legal sphere regarding privacy versus the right to publish? prof. gajda: in this tort sense, what had happened was there was, back in the early 1900s, one of the very first cases involving privacy looked to images of people using advertising.
so when warren and brandeis wrote the right to privacy, it focused on media and the right information. the first cases that were decided had to do with the use of images of people in advertising. and then very slowly throughout the early 1900s, the idea that we have the right to protect our private information grew in court. and back then, they were certainly reflected in case law and otherwise from this idea that we should all keep our mouth shut, that there is the potential to reveal certain information that should not get
out to the people who should not hear it. so those governmental interests often times inform how we think about privacy in a legal sense. susan: after world war i was over, louis brandeis was a justice on the supreme court and joins oliver wendell holmes. they together are first amendment legends and looks to throughout the rest of history as offering some of the most memorable phrases about the first amendment, cannot shout fire to a crowded theater. that phrase came from those justices. but you say it is very easy to pluck certain phrases out of their opinions and credit them with first amendment absolutism, but that it is actually more nuanced.
what should we know about their views of privacy versus the right to publish? prof. gajda: they very much embraced privacy in their personal lives and also in case law. as one example, when the court decided that certain letters should be accessible by government investigators, both holmes and brandeis disagreed and wrote a pretty impassioned opinion suggesting that privacy was much more important. so you see them as embracing first amendment rights, including a marketplace of ideas
concepts, and yet recognizing that privacy interests are very special interest and that they willy-nilly publisher would not be allowed to rent a stall in homes marketplace of ideas. the language sounds broad but if you go back and take a look at what they were about as individuals and the opinions they wrote, dissenting and otherwise, they embraced privacy and it is very clear they were not first amendment absolutists. susan: from a lasting legacy perspective, what have they left
in the legal system that is the most enduring? prof. gajda: i think that justice holmes and the marketplace of ideas concept is critically important. also if you think about louis brandeis and his impassioned plea for privacy and a criminal sense, so he did not believe the government should be able to wiretap phone lines for an example to listen in on conversations. he believed a warrant was necessary first. he wrote beautiful language making a plea for privacy and suggesting that police should need a warrant and that these are private moments that police might listen in on and that a warrant was appropriate in such cases and that is the way the law is today. so we think about those lasting legacies, that is certainly one that i think he would want to be
remembered for. susan: society is changing and you write about how journalism is changing and becoming a profession. how did that change the equation as professionalism seeped more and more into journalism? prof. gajda: my theory is that -- back in the day we had pulitzer and hearst and those sorts of publishers who often times published with very little
regard for any sort of privacy interests. so court began to embrace the idea of privacy and suggesting that publishers would be liable for publishing truthful information if that information was not newsworthy. so as one example, there was a journalist who took a picture of conjoined twins and published the image. very early, there was privacy in that image and the courts found that journalist would be liable for taking that picture and publishing it as he did. so court was distrustful of journalism. in the 1920's, a uniform code of ethics across the united states began and newspaper editors got
together and decided there would be one code of ethics for all journalists. that code of ethics included privacy provisions. the suggestion that some information was too private to be reported and that all journalists should respect that sort of privacy. so as journalism began becoming more ethical and pulitzer and hearst papers toned down in response to ethics concerns, courts became less comfortable second-guessing news decisions by journalists. they began to trust journalists. so my argument is that at that
point and later, you had courts backing off and effectively saying, who are we to second-guess what trained journalists have decided is newsworthy? so it started a golden era for journalism that in the 1890's, no one wanted to be a journalist, it was a distasteful profession, certainly for the elite. and then by the 1930's, mickey mouse started his own newsper. there is a book for kids suggesting as much, that if mickey mouse could be a
journalist, certainly all might want to be journalists because they are so ethics abiding and make good ethical decisions. so you see that reflected in the courts decisions of the day, suggesting that journalists had the right to report the news and courts were not comfortable second-guessing the decisions. susan: how long did that golden age of journalism last? prof. gajda: i would say it really began crumbling in the age of reality television. when news and entertainment merged, arguably. i do not necessarily buy that whole idea but for someone suggesting certain programs were
not really news, they were entertainment, you see that pushback in those decisions early, like in the late 1980's and certainly by the early 1990's, they called it media but by calling it media, they then could hamper what we consider journalism as well. susan: people that see polling today about public attitudes towards the press will be surprised that post-watergate, 72% of the public believed in and trusted the media. and the public's right to know was championed during that time. that is the pendulum swinging the other direction.
during that time there is a story in your book about a documentary film made that took 25 years of litigation to be shown. it was done by frederick reisman. what is important about this story, in your telling? prof. gajda: it's an example of a journalist going into a prison for the mentally ill and recording the abuse of prisoners there. so we would think that sort of truth should be celebrated, we should all be able to see what the government is doing to people in prison, especially those, but including the mentally ill. i do not know why frederick wiseman was allowed in the prison. but he puts together this documentary showing the abuse of
prisoners and premieres it at a film festival in new york. almost immediately, it was shut down by the government. the government argued there is the right to privacy, ultimately this was the government's argument, that the inmates in the documentary have a right to privacy and if they did not sign waivers, and some of them didn't, that the government needed to come in and protect the privacy of the inmates. so if you look at it in a legal sense, if i looked at it as a journalist, it is decidedly newsworthy.
it's true and shows the way the government is mistreating people and yet the government itself argued that the privacy of those people trump to our public interest in their treatment. it suggested the courts for more than two decades and yet a lot of people do not know about this documentary. they do not know about the suppression of truth, and it is decidedly troubling and it is of interest to me, and maybe it is because by the time it was released to everyone, people in certain areas could see it. people in psychology, lawyers could see it, but not the general public. so by the time it was released to the public, maybe it was old news. but it is very unusual because we do not discuss the
documentary that much but i think it is critically important to privacy, and how privacy can be used as a weapon to prevent the revelation of truth. susan: we have a short clip of it. 1967 and yet the public cannot see it until 1991. >> you are telling me that if i should go back, i should go back. obviously you know something i do not know. >> i have to leave you. >> [crosstalk]
susan: that is an exchange about a patient and doctor talking about his care. just an example of what the public would see. we have lots of history to cover and only 25 minutes to go so i am going to fast-forward. 1991 was the dawn of the internet age. how did that change the equation on these issues you write about? prof. gajda: one way is thinking back to ethics and how courts embrace the idea of journalistic ethics and trusted journalism more. anyone can publish anything on the internet. through social media and otherwise, publishing in an instant to the world as possible. many publishers are not ethical, as we all know. here i am thinking about websites and social media posts that might invade privacy or be
defamatory. because of reality television, courts were already questioning media and whether there might be rolled back of rights, despite the first amendment. then suddenly, the internet happens. everyone can be a publisher. so as you can imagine, the worry courts had about invasions of privacy and defamation and how they were much more interested suddenly in not giving media the amount of leeway they had back when 70% of the public trust of journalists. susan: congress got into the act in 1997 with a major overhaul of telecommunications. there was a provision in the act called section 230 championed by
a democrat and republican. ron wyden and chris cox. what was the intention with this and what were the consequences? prof. gajda: this is at the dawn of the internet, even during floor discussion about the provision there was the suggestion legislators did not really understand what the internet was. in 1996 there was the suggestion
in newspapers, newspapers would define the internet because people did not understand what it was. it was this giant file cabinet accessible to all of us was the way news stories described it. what happened in court was one of the websites had published a piece on a bulletin board. some member of the public had published a defamatory statement on a bulletin board. the person who was defamed sued the internet service provider. so in effect, the website owner. a court found all potential liability there. so congress is believing the growth of the internet was critically important to the nation's economy, decided to protect websites like prodigy
that ran bulletin boards. so the idea was by enacting a law that protected the websites, websites would be able to go in and edit information published by others, remove information published by others without being liable for privacy invading information. the idea behind section 230 was to grow the internet and the nation's economy and protect the entity's online that might otherwise be liable for
defamation or invasion of privacy under existing law. so it changes the way we treat electronic publishers. section 230 suggests, or mandates that if there is a publisher that accepts information from others, people out there who publish information to the website, the website will not be liable for it. that is why reddit exists, comments on newspaper column websites exist. they would not exist because they would be liable for anything posted by anyone. facebook would be liable for privacy invading comments. so it protects those sorts of websites from leaving up damaging information. susan: we have a clip of
clinton's signing the legislation in 1996 and trump, very unhappy with section 230, 30 years later. president clinton: today laws catch up with the future. we will help create an open marketplace for competition and innovation. [applause] trump: currently social media giants receive an unprecedented liability shield based on the idea that they are a neutral platform, which they are not. my executive order calls for deregulations under section 230 to make that social media
companies that engage in censoring will not be able to keep their liability shield. susan: what happened to section 230? prof. gajda: people began to realize that it was perhaps too protective of certain websites and i will exclude former president trump from the discussion for the moment. it is interesting that president clinton suggests that the open marketplace of ideas would thrive on the internet under section 230. certainly it is true but again, thinking back to the marketplace of ideas, maybe there should be
some sort of protection for privacy on the internet as well. and the reason why i say that is because of this protection, certain websites began, including revenge porn websites. they literally say, get revenge on your ex. send in nude photographs of them to humiliate them. under section 230, those websites thrive. they are not liable. the people posting the images would conceivably be liable, but the website would not be, under section 230. so you get a lot of people today suggesting section 230 needs to change. and former president trump
interest is very much in suggesting that section 230 is too protective of twitters choices to remove certain tweets and otherwise that he believes sensor one little bowl group. but on the other side of the aisle and in the republican, there are calls to limit section 230 as being too protective of certain websites i am talking about. so again it is the suggestion that it has been taken advantage of by certain publishers and that now maybe we need to rethink it and the level of protection, at the very least, or do away with it completely. susan: one last story from 2016,
wrestler hulk hogan taking media to court. prof. gajda: i have been teaching privacy for more than 20 years and i started almost -- a few years after section 230, and i have been telling my students that someday a website was going to publish a sex tape featuring a celebrity and it would create a clash of the right to privacy versus the freedom of the press, freedom of expression. so one of my students sent me an
email saying, you might be interested in the fact that the gawker website just published a sex tape featuring hulk hogan. so i clicked on the link and watched hulk hogan nude having sex with a woman on a bed with full sound, audio and video of him on the bed. hogan after that brought a claim for the right to privacy against gawker and argued that even though it is truthful, his level of privacy trumps the right of theirs to publish it. a jury agreed with him and i think a lot of people in the
u.s. were shocked at that because we understand so much about freedom of the press and truth and how truth will protect us and yet this was an instance of someone's privacy becoming more important, a jury decided, then the public right to know. something that has been part of law since the beginning of the united states but suddenly came on full force when they published the sex tape and brought it to court. susan: here is a clip with the outcome. >> this morning, a victory for hulk hogan's invasion of privacy
battle. the jury sided with the former wrestler on all counts, awarding him $115 million, fighting against gawker, the founder and editor in chief for posting a secretly recorded tape of hogan having sex. >> [indiscernible] susan: how does that case change the landscape for publishing on the internet? prof. gajda: it continues to have repercussions today. what has happened even beyond publishing on the internet was that number one, it may be individuals who publish generally understand that some information can be off-limits.
but second, and i think more importantly to journalism, is that when this decision came down, plaintiffs attorneys across the u.s. suddenly recognized that there will be times when they can win invasion of privacy cases against media and journalism. so i think that case emboldened them to bring claims they probably never would have in the past. one quick example. an nfl football player was injured in a fireworks accident and his finger needed to be amputated. espn tweeted out that information and also included the players medical chart. the nfl player brought an invasion of privacy claim against espn and a court decided the nfl player had a privacy claim that was valid. even though the amputation was
news, the medical chart was the player's personal information and should not have been published. a jury decided as much. so that shows you how the hogan case opened the door to an increasing number of these sorts of cases. and you see more of them today, almost 10 years later. susan: for the most part we have talked about aspects of the media. but today, it is not just what is published on websites like facebook and tiktok and instagram. it is data. cell phones track our every move and transactions with credit cards. it is all swept up into big data
and 80% of the public today says they are concerned about privacy. at the same time, many people publish every aspect of their lives online one way or the other. so where does the back-and-forth pendulum of concerns about privacy versus publishing and availability to the public of personal information stand? prof. gajda: right now, courts are anxious to find privacy in data bits. i think what is happening is that people do not understand the level of information that companies can access about them and use in some way by selling to other companies. the more we can get that information out, the less likely people will share online. in the meantime, u.s. judges understand and are finding privacy in data more often. what comes to mind is a court that recently suggested that
individuals, if they share information on the internet and they expect it to only reach their friends and family, there can still be privacy and that information. that's extraordinary. fewer than 10 years ago there was a suggestion that when we share information on the internet, it is public. but now courts are saying, if we intended it to only reach our friends and family, they will protect the information beyond that. so that is why i teach undergrad classes in media, so that we can all begin to understand the importance of keeping certain things private, not sharing them, because perhaps they can be used against us, but then also this idea, and california law allows it now and some companies today will want access
to this data, our ability to access the data companies have on us so that we can better understand how they think of us and how the data bits we enter online can become part of a compilation of who we are and how it can be used in troubling ways that we never suspected. then i eat my ice cream cone with four scoops. i think it insurance company would want to know that information. susan: you have an interesting story in the book that you applied for your own credit report and background check and came up with 200 pages of data on yourself, your family, and your associates as part of your report. were you shocked? prof. gajda: yes. i live a very uninteresting
life, which i guess i am glad for now. and yet there were 200 pages in my background check. and it included some information about my neighbors and their private information. it is deeply troubling that information is available for $150. and if you hire a private detective to do this for any reason, that's a lot of data you can get on someone else. that access to data allowed me to find out that amazon knows that i own a bulldog. so that is one data point that amazon knows about me. and there is a lot in addition that other companies have gathered. susan: and this is not information you chose to publish.
it is being swept up by your daily life. you compare the u.s. to europe in the book. europe has the right to be forgotten with information on the internet. do you anticipate there will be a debate at the national level here about similar legislation? prof. gajda: yes. if you speak with privacy officers in big companies today, many of them will suggest that it is just a matter of time before we have gdpr-like provisions here. it is difficult and cumbersome for them to carve out an exception for the united states. in the meantime, congress is not really taking action, but state legislatures are. so you see interest in legislation today, biometric privacy, and some state
legislatures have suggested a real push toward privacy. you see the same thing in courts. so there is an embrace of things like home addresses, the supreme court despite the leaked opinion in privacy for roe v. wade, have said the privacy interest in home addresses, and the revelation of people's home addresses and the suggestion that other people should go there and protest or worse, called doxxing, that there are privacy interests in home addresses. so you see a real push toward privacy in that sense as well. susan: the book is called "seek and hide."
amy joins us from tulane university where she is a legal scholar and expert and first amendment law. thank you so much for being with us. prof. gajda: thank you. it has been a delight. [captioning performed by the national captioning institute, which is responsible for its caption content and accuracy. visit ncicap.org] [captions copyright national cable satellite corp. 2021] ♪ >> all q&a programs are available on our website or on our c-span now app is a podcast. >> c-span is your unfiltered view of government.