Privacy Torts and the First Amendment
- In 1979, Dave Miller died of heart attack; his death was filmed and broadcast by a TV news crew doing a report on 911 emergency responders
- Miller's family sued, arguing its right to privacy had been violated
A Los Angeles TV station, responding to widespread complaints about the inefficiencies in the city's medical emergency response network, launched an extensive investigation. A news team interviewed city officials and emergency response professionals. It also arranged a ride-along with a team of paramedics. For two days in October 1979, a camera crew, news producer, and reporter recorded the challenges and heroics of these fast-acting medical professionals. They tracked their response time, they interviewed the team members and their families, and they filmed their work as they raced into people's homes trying to save lives. When the investigative series was broadcast, it won accolades from the community as a good example of what local journalism can do. The series shed light on local conditions and contributed to efforts to improve the city's medical emergency response network.15
On 30 October 1979, Dave and Brownie Miller, a retired Los Angeles couple, were settling down for the evening. Their busy day had included their daily telephone call to their five-year old grandson. Suddenly, Dave collapsed to the floor suffering an apparent heart attack. Brownie immediately called 911 and within moments police and a paramedic unit had arrived. Team members worked frantically to resuscitate Dave before loading him onto a gurney. Brownie watched half delirious—in their bedroom, crowded with people, she could barely see what was going on. By the time the ambulance drove off with her husband, Brownie's neighbors have arrived to help. They began calling the Millers' children while Brownie followed the ambulance to the hospital where Dave died.
Three weeks later, Dave and Brownie's daughter Marlene turned on the six o'clock news just in time to see her father die on television. It was several moments before she fully recognized what she was seeing—but there was her parents' bedroom, and that man being worked on by paramedics was her father. She could not see her father's face, but she could see his arm hanging from the gurney as he was taken to the ambulance, driven to the hospital, and carried into the emergency room.
The Right to Know vs. the Right to Privacy
- Family's right to privacy conflicted with news media's right to freedom of the press
A television news team's interest in covering an important story and a family's personal tragedy converged in these events. So also did two rights which we view as fundamental to our liberty—the right of the press to operate with few restrictions and the right of individuals to privacy. The courts would spend six years trying to sort out which right trumped the other in this situation.
Shortly after the television station aired its weeklong series on the city's emergency response network, the Miller family sued the station for violating its privacy. Marlene was not the only one to see the shocking newscast. The footage was repeated at least twice. Even Brownie, who after the first airing steered clear of the news, saw the footage when it was used as part of an ad for an upcoming news special.
The station was stunned by the suit. Its news team had followed the paramedics into at least ten other homes and no one had complained. Moreover, in the Millers' home, as station executives pointed out, no one had asked them to leave. The news team followed the paramedics right through the front door; they did not surreptitiously spy on the family from outside. Everyone could see that they were there. In fact, team members remembered that they had walked right by Brownie in the hall and she said nothing to them.
The station argued that, furthermore, the cameras and reporters did not interfere in any way with the care Dave had received, and the station made sure that his face was not shown during the segment. Even if the segment had caused some pain to the family, that should be weighed against the public good that the story provided. This was exactly the sort of journalism that the First Amendment should most rigorously protect, the station argued.
But the Millers responded that while the news crew had not been asked to leave, they had never been invited inside. Brownie Miller testified that in the terror of the moment she never even realized that the news crew was there. The room was filled with police, paramedics, and eventually neighbors, and she was frantic with worry. The last thing she expected when she called 911, or should have been prepared to deal with, was a batch of uninvited reporters.
As for the damage, the family claimed that a very private moment had been transformed by the media coverage. Any consoling memories of their father's peaceful death were now replaced by televised images of paramedics violently pounding on their father's chest in the Emergency Room. Moreover, these images were now part of the public arena. Millions of others had been brought into this very painful moment, nor was there any guarantee that the family would not have to relive it over and over again. The images already had been shown and re-shown several times. What protection did they have against this private pain being foisted upon them over and over again, every time they turned on the TV?
Privacy Torts: the Legal Options
- The Miller family sued the TV station for intrusion, one of four types of privacy torts
- The TV station sought to have the case dismissed before trial, but an appeals court ordered the case to be heard
- The family and the TV station settled the case before trial, leaving the question of law unsettled
Whatever intuitive appeal the Millers' case had, the law on privacy is fairly precise—that is, most laws dealing with privacy fall into one of just four categories. The Millers' case seemed to fit best into the "private facts" category; a private moment had been made public without the authorization of the individual exposed. But among the problems with this particular type of privacy complaint, or tort, was that generally only the individual directly violated can sue. The courts are not very receptive to people seeking damages when another person's privacy has been violated—even if that person is a family member.
The alternative left to the Millers was to sue for a different type of privacy violation—"intrusion." The courts have generally defined intrusion as the unwanted encroachment on a person's seclusion or solitude, or into a person's private affairs. This is the case that the Millers advanced. They argued that the TV crew had intruded on their privacy in two ways: first, by physically entering the privacy of the family home uninvited, and second, by repeatedly reentering their private space electronically by broadcasting the images of their dying father. This second argument represented a somewhat novel use of the intrusion tort. The courts had earlier agreed that an intrusion need not be physical to be a violation. For example, an unauthorized wiretap was a form of unprotected intrusion. But here the Millers were arguing for a different form of electronic intrusion via the repeated television broadcast of their father's death.
The station responded that the case should not even be allowed to go to trial. Perhaps its most powerful argument was that any action against them would have a "chilling effect" on the First Amendment. Even if unsuccessful, the Millers' case would encourage others to take potshots at the press, thereby inhibiting its ability and its willingness to pursue stories essential to the free flow of information.
But on 18 December 1986, an appellate court disagreed. The court did not buy the Millers' somewhat novel argument regarding electronic intrusion, but it did agree that the initial entry of the television cameras may have violated the family's rights. This did not mean that the Millers had won, it only meant that they could proceed to trial where a jury would be asked to decide the next question necessary to prevail in a suit of this sort—whether the intrusion was "highly offensive to an average person."
Before this ever happened, the Millers and the television station reached a settlement. Six years of litigation had taken a psychological and financial toll on both sides. Therefore, we will never know how a jury would have ruled. But this allows us to decide for ourselves. Was the Millers' privacy violated? Did the news crew overstep some boundary in pursuing the news? If so, where exactly did the news crew cross the line? Was there enough harm done to warrant some sort of punitive award to the family? Would a judgment on behalf of the family threaten the First Amendment? Must privacy rights take a back seat to the needs of the press?