First Amendment Lesson Plan: Newsgathering and Privacy
Appropriate academic subjects
Suitable for classes in government and civics.
Victor Dutton, a reporter for a newspaper in a small Midwestern city, hears reports of animal cruelty on a large hog farm outside town. Having some family farm experience, Dutton applies for a job as a farmhand and is hired. He sees firsthand how some hogs are mistreated by other employees.
When Dutton reports the abuse to the farm owner, Andrew McTeel, McTeel calls the behavior “just guys being guys” and says “the animals get over it – they don’t remember what happens to them.” Dutton secretly takes notes, snaps photographs, and video-records several instances of animal cruelty. He quits his job after three weeks and returns to his newspaper, the Farm City Tribune, to write a series of stories about his experiences. Photos appear with the articles in print and videos accompany the reports on the newspaper’s website. Although most of Dutton’s reporting centers on animal mistreatment, he includes a few details about dirt and disorder inside the McTeels’ home, and writes that while he was talking to McTeel, Mrs. McTeel “was sitting at the kitchen table, drinking gin in the middle of the day.”
When McTeel sees Dutton’s work, he is furious. He complains to the Farm City Tribune editor that his privacy has been violated and his private property trespassed upon, and files a lawsuit in county court under a new state “ag gag” law that makes it illegal for individuals to take jobs on farms for the purposes of exposing wrongdoing (often called “whistleblowing”). A second lawsuit alleges “intrusive and offensive” invasion of privacy in regard to Dutton’s statements about Mrs. McTeel and the family’s home.
Meanwhile, a federal court strikes down the state ag-gag law as an unconstitutional violation of the First Amendment freedom of the press. The court acknowledges that accepting a job under false pretenses constitutes fraud, and that secret recordings on private property are a form of trespassing. But it rules that the public benefit in exposing of animal cruelty outweighs the privacy and trespass concerns.
In light of the federal ruling, the county court finds no merit in McTeel’s lawsuit concerning “whistleblowing” on his farm, but allows the second lawsuit to proceed on the issue of invasion of privacy.
- The First Amendment protects the right of news reporters – and citizen journalists – to report on matters of public concern.
- Privacy, although not specifically established by name as an individual right in the Constitution, is recognized and protected by implication in the Bill of Rights. The bulk of legal protections for privacy stem from common law – that is, through court rulings on “tort” cases alleging wrongful violations of privacy.
- The four legal subcategories of privacy torts, or wrongs, are these:
- Intrusion upon physical seclusion (most common)
- False light (false portrayal of someone, similar to libel or defamation)
- Public disclosure of private facts (objectionably revealing personal information that’s of no public concern)
- Appropriation (using someone’s name or picture without permission)
- There is often a delicate balance that must be struck between reporting news of public concern and protecting people’s privacy.
One class session.
Discuss the situational facts.
Ask students to weigh the difference between (a.) paparazzi-like invasion of personal solitude or space, often with cameras or electronic bugging devices, and (b.) “trespassing” in order to expose crime or other wrongdoing that affects the public or that the public cares about.
Invite students to discuss reporter Victor Dutton’s approach to newsgathering, including his reporting of information from inside the McTeels’s home. Did he make mistakes? Could he have obtained information about animal cruelty a different way? If so, how?
Have students consider the kinds of societal wrongs that can occur or be committed on private property, especially businesses. Examples: air and water pollution in the form of airborne particles and toxic-waste runoff. Discuss how undercover investigative reporting might – or might not – be needed to bring undesirable practices to light. Possible questions: Should undercover reporting be done only as a last resort? Are trespassing and misrepresentation always wrong?
Research and consider real-life examples of journalistic/citizen investigative and undercover reporting involving trespassing or secret recordings:
- “Ten Days at the Mad-House: How Nellie Bly Posed as Insane in 1887 in Her Brave Exposé of Asylum Abuse”
- Jerry Thompson, Nashville Tennessean – “My Life With the Klan” undercover exposé
- James O’Keefe, Project Veritas – “Is it okay for James O’Keefe’s ‘investigative reporting’ to rely on deception?” by Paul Farhi, Washington Post
Assign a short paper asking for a synopsis of the principles and issues involved in weighing the public interest in news reporting against the legitimate values of individual privacy. Alternatively, ask students to write a short response defending and/or criticizing the hog-farm investigation as carried out by reporter Victor Dutton. A third possible assignment might be to have students think of a situation, real or invented, that endangers or otherwise affects the public, and how news reporting under a free press might best bring that situation to light.
Materials and readings
Resource: “Newsgathering and Privacy,” Digital Media Law Project (includes a video)
Reading: “Privacy and newsgathering," by David L. Hudson Jr.
Resource: “Liability for intrusive or harassing newsgathering activities,” Reporters Committee for Freedom of the Press
Resource: “Other newsgathering concerns – defenses,” Reporters Committee for Freedom of the Press
Resource: “Newsgathering and Drones: A Year in Review,” by Charles D. Tobin and Christine N. Walz
Reading: “Good news for farm animals and the First Amendment,” by Brian J. Buchanan
The Right to Privacy, by Ellen Alderman and Caroline Kennedy. Vintage, 1997.
The Ethical Journalist: Making Responsible Decisions in the Pursuit of News, by Gene Foreman, pp. 229-251. Wiley-Blackwell, 2009.