In November 2006, a Texas prosecutor shot himself as police entered his home to arrest him on child sex solicitation charges. Waiting outside were reporters and crew from NBC’s To Catch a Predator investigative program, persons who had initially worked with police in the sting operation. In February 2008, a federal judge ruled that NBC’s behavior in covering the events preceding the suicide could be tortious, based in part on what the court decided very likely was a violation of journalism ethics, including provisions suggesting that reporters show good taste and invade privacy only in cases of overriding public need. The plaintiff had argued that her brother’s would-be arrest was not news at all, but a sensationalistic move by NBC to raise its ratings. The court, calling the event a “public spectacle,” effectively agreed.

Courts, John Marshall famously declared, must “say what the law is.” Increasingly, however, as the To Catch a Predator case shows, courts are also called upon to say what the news is. When subjects of unwanted publicity sue for invasion of privacy or other torts, journalists commonly defend on the ground that the challenged disclosures were privileged as newsworthy. Traditionally, courts minimized constitutional concerns by deferring heavily to journalists’ own sense of what qualified as news; that a story made the newspapers or the evening news was itself nearly conclusive that the topic was of legitimate public interest and therefore beyond the reach of tort law. Recently, however, courts have grown decidedly less tolerant. Driven by mounting anxiety over the loss of personal privacy generally and by declining respect for the press specifically, courts are increasingly willing to impose their own judgments about the proper boundaries of news coverage. Ironically,in the recent Texas case, an emerging tool used by courts to police news outlets is journalists’ own codes of professional ethics. By measuring editorial decisions against gauzy internal ethics standards, courts give the appearance of deference to the profession while aggressively scrutinizing editorial judgments. This Article demonstrates the growing threat to press freedom posed by these emerging trends. Part I places the conflict in historical context, showing how evolving legal understandings of privacy and press freedom set the two on course for a modern collision over “newsworthiness,” which was resolved initially by deferring to journalists’ editorial judgment. Part II explains how recent developments – including growing resort to journalists’ codes of professional ethics – have undermined judicial deference to journalism in defining the news. Part III examines the implications of the nascent resurgence of tort regulation of journalism, and Part IV concludes by suggesting that courts return to a more deferential approach in assessing “newsworthiness.” Specifically, it suggests that courts should have no power to punish truthful disclosures of private facts if journalists could reasonably disagree about the story’s legitimate news value.


Communications Law | Constitutional Law | Injury and Tort Law

Date of this Version

March 2008