The First Amendment; Martin Linsky: Privacy

State radio in cooperation with the Institute for democratic communication at Boston University now presents the First Amendment and a free people and examination of civil liberties and the media. In the 1970s and now here is the director of the Institute for democratic communication Dr. Bernard Rubin. On this edition of The First Amendment and a free people a subject is privacy. The limits of privacy under the First Amendment and the guarantees of privacy under the First Amendment I'm absolutely delighted to have as my guest Martin Linsky who was educated at Williams College in the Harvard Law School and as most of you know was state representative from Brookline Between 1967 in 1972. He also had a wide career in you know writing and editorial work he's been editorial writer for The Boston Globe and consultant to the Ford Foundation in law and media problems. Presently He's the editor of The Real paper which is one of the more significant newspapers in our you know our area.

Marty if I may I'd like to open up this discussion of privacy by throwing a definition out getting getting a standardized you going first. There was a report of the Office of Science and Technology dealing with privacy and behavioral research and this was a definition given to privacy and I'm going to quote the right to privacy is the right of the individual to decide for himself how much he will share with others his thoughts his feelings and the facts of his personal life. You know Marty how do you square that with the obligation of the press to dig out stories which always concern individuals. Well I think the short answer is it's not easy. There is a terrific tension between. What I as an editor perceive as my responsibility is to the readers and the public's right to know things and what individuals perceive is their right

as articulated in that definition to be left alone. We run into this conflict all the time with the real paper and as I started also when I worked for The Boston Globe How much do you report about an individual particular an individual who's not himself or herself in public life. Even if we can accept the fact that the standards are ought to be different for people in public life. We also as an editor also look at let's say the chief executive officer of Stop and Shop and not to take him or her personally but generically and realize I think that the person who holds that position has as much impact over the lives of average people as the person who holds a position in the state legislature or the head of a major department or agency in the city government. So I have a responsibility to hold that person accountable to and that gets us into this tricky

area of dealing with private people in their private lives. Well there is a. Some standards that have been applied to to privacy in regard to journalism and by the way this are the issue of privacy goes back in its present form to 1892 an article in The Harvard Law Review one of whose authors was Justice Brandeis and many people think that it would have been better had Brandeis and his colleague never written that article where privacy is not specifically mentioned in the Constitution and is a bogus issue. Actually it is not. It was rather innovative for them to deal with it. But today we look upon true privacy for example in an article entitled privacy the right that failed in the Columbia Journalism Review of the spring of 1969 an article by Donald L. Smith. Among other things he reminds us are some of the things our privacy must deal with intrusion upon a plaintive seclusion or solitude or

into his private affairs. Public disclosure of embarrassing private facts about a plane to regard to a legal contest publicity that places a plaintive in a false light in the Public Garden. Now recently some cameraman went into a restaurant in New York. In July 972 they wanted to get a story about the restaurant which had been cited for unsanitary conditions by the Board of Health. After the violation have been corrected the TV crew burst in. At lunchtime enjoyed 972 in film the persons over the proprietor's objections he asked him to go very very recently. The jury in the New York State Supreme Court awarded the restaurant two hundred fifty thousand dollars in punitive damages involving such questions as whether or not the TV crew had left when requested and so on. Now this is a leading case it seems to me because when you cross the

line and invade a person's privacy or a group's privacy. The media must be amenable to the law as well as the private person. But how do you cross the line without bringing censorship to us all. Well see I distinguish that case because that case seems to me if you pardon the reference to the McLuhan case because there you have a TV station and you can't put pictures of health reports on a television screen. If you and I were running this radio station and we wanted to do that story we wouldn't have any problem in not invading the privacy of that restaurant but the dictates of the medium force force that station to produce a picture to get a photograph to get something that they could show to their viewers and that puts a special kind of pressure on the well I don't know the facts of that case well enough to comment specifically on it but it does seem to me that the television

cameras have escalated the issue. We saw it for instance in the if you remember in the Arthur Bremner case when or shortly after George Wallace was shot I think it's quite clear now that the CBS gained entrance into Bremner's apartment was in Milwaukee Minneapolis I don't quite remember where we said we were witnessed on the TV screen. His report cards from school a lot of his personal effects the inside of his apartment. Well that was journalistically a hell of a story but from a point of view of personal liberties it was an incredible invasion of that person's privacy. Something for which an average person could have been put in jail probably whether the details of how they got in there are not quite clear but they got in they're illicitly anyway since only Bremner had legal access and Berner obviously did not authorize them. So I think television has introduced a whole new element in that sphere as

opposed to the editor of The Real paper Suppose you said to take a similar case I want you to get a story now done out of the restaurant and the man says I don't want you in here and you start interviewing patients students or whatever it might be. I think you'd be in much the same position. Well that may be true although there are easy ways to accommodate that you know to not be of NOCs are no ways to get a picture unless you're there and getting a picture are easy ways to interview people outside of a restaurant as they come out. You know there was a comment we had an interesting situation let me let me take an analogous case and I think we ought to separate the discussion of the morality of these issues in the writings from the from the law right. The law is devolving and we want the law to be what we think we ought to focus on that first one that they can take the view of a civil libertarian. The Boston Globe during the period of time that I was there did a series of pieces on the financial condition of various candidates for public office. Now there were two.

Causes for concern. In one case in the case of former governor Sargent the globe had taken a picture of his house on the Cape. Which he and his wife considered to be their private domain did not want people to know which house it was and what it looked like and certainly didn't want the address printed because they didn't want to be harassed there. Now the group took the position and we can pass for a moment the question of whether the globe trespassed in order to take the picture. The Globe took the position that they were public office holders with all their financial whole holdings were a matter of public scrutiny and ought to be there. That was a very tough issue and there were some quite poignant conversations I think between the sergeants and the people at the Globe about whether this was necessary and was not an invasion of privacy. I do find that one a tough one because I think when someone

runs for public office one of the things they give up is the degree of privacy which in our society we want to accord to the private individual. Are there limits to what they give up Sure there are some limits to what they give up. But there are very many. I was in public life and I was in elective office and I think that's one of the things that people have to accept when they run for public office that they're dealing with with really high trust and degree of accountability with other people don't happen on the other hand you have to stand back and look at politicians and their private lives and realize the kind of pressures on them anyway and say gee do we do we really have to go that far do we really have to mess people up like that when Joan Kennedy was arrested for driving under the influence in Washington about a year ago a year and a half ago. That was a prominent story in The Washington Post. If you or I were arrested in the same

circumstances or our supposes would have made the newspaper was unnecessary that have to be done it was new. Sure. It's news when we get arrested. It had a public interest. Are there limits. Should there be limits if there are and there should be and I think maybe the John Kennedy case that's one that I was an editor would have said hey that's something we have to deal with who want to dictate those limits ought to be done by a court by an individual journalist by an editor by hand distinguished citizens. Is that something that the national news Council for example would deem sufficiently important to deal with. Let us take that particular Kennedy situation. She never ran for public office she is merely the wife of a public official She is an intensely private person she is well known to her personal difficulties. Most of the people in the world have. She should have been given some privacy and not everything she does is an extension of the work of her husband especially if you believe in

the Equal Rights Amendment She is a person in her own right. Is that something that you would recommend to the national news Council to deal with. Well it's certainly not an area that they've entered into very comfortably they've tried to take cases where the controversy was much more explicit. I think it's as a personal matter and as a professional matter as paper I feel a great deal of sensitivity toward invasion of people's private lives that I like to use a standard which is that unless the private conduct of an individual affects the public performance of their duties then I'm not particularly interested in printing it. There isn't an intense curiosity about the private lives of our public figures it's a human thing I think it's a little salacious than maybe even a passing kind of experience but you look at for instance the success of People magazine as an obvious example.

People want to read about the old Confidential magazine right sort of people want to read about that kind of stuff and yet I'm sure the Washington Post didn't sell newspapers that day because on page 15 or 13 there was a four five inch story about Joan Kennedy. I would. Who printed that thing. I don't think on the other hand I'm sure the people at the post felt that that she is a public figure in her own right. She bears public scrutiny and that her actions particularly where they come into contact with the law as in that case have to be treated as if she was an elected office holder. It's a very tough one. You know those men we went through that period of the 16 late 60s where public office holders as soon as children were getting involved in drug busts you know very difficult issue to deal with. You know it is new and it is significant and maybe even it

says something about the character of civil rights played it both ways. For example for many many years the press knew. Items about presidents of the United States about their personal lives which they didn't play out because their editors and publishers and reporters clandestinely if you will kept kept that in their pocket. Well we're in the if you pardon the expression post Watergate era everything goes well it's brought with it you know everybody wants to be would steam you know. And I think that the press is in danger frankly of going too far in this area. And the result of going too far will be that courts and legislatures will find ways constitutionally to put some reins on what the press can do. I think there are some real serious. Risks in pushing the limits of invading people's privacy and its subject matter that people in the press are not discussing enough in my judgment to try to

figure out what those limits ought to be in the process is very much concerned as indeed it should be commended for invasions of privacy via data banks and insurance companies and the government having all sorts of data but when it comes to matters of their own access to that room for instance we're going to take this whole question of sealing the records of criminals. Good Liberal civil libertarians are all for it because they believe in the principle of Christian redemption they're all for sealing the records of people have been convicted of crimes minor crimes after one period of time. You're wearing your hat as a person in the press. You want to have access to that those are public records or they were public records. There are violations of law. Why shouldn't the press have access to those records. That's a very tough tension you know and it there's no there's no area of accommodation either you're going to come out on one side or you're going to come on the other. My own feeling is that the press has not been very sent. In the last five years to the private rights of

individuals and I think the costs of that may be very high. Well individuals haven't because of publicity which are so much arraigned against them. I haven't dared to fight back the idea of fighting back is a new idea. When you're clobbered by the press because an invasion of privacy or some kind of personal entrapment the better course especially in politics people have said in the past is just to withdraw. But if they didn't withdraw for example if they said taking the converse ever since Hildy Johnson and and plays like the front page reporters I've been well known drunks at least some of them reporters have been. Licentious in one way or another at least some of them according to the imagery of the press that the press itself likes to in Kochi they always go to the bar when they finish a story. We don't ask a publisher to give us the background of the man who is being so moral about the politician. Maybe maybe there's 2

edges to this phone. Well I respectfully think that's a red herring. I mean that is I don't think that was the issue came up for instance and when the Globe did that series on the financial condition of the people seeking public office and some one of the politicians said that we want to know what the tailors haven't said or I don't. I don't think that follows First of all I think there's a distinction between people seeking public office and people holding if you will even a public trust by the nature of their private position. Stop and Shop the Boston Globe with other people and I think that stinks and still exist. But the tougher question I think for the press is whether they ought to either as individuals as an institution. Passion or guilt or whatever people want to think himself they ought to begin to develop some guidelines for when you print a story about a candidate's spouse and when you don't when you intrude into the personal lives in the private lives of people when you don't

what justifies making that intrusion. Under what circumstances is it OK what higher pretty even what is the. I don't think the president enough with what. What does the story mean. For example this story out in Utah which is rather current about the congressman who claims entrapment by two women on the police force. What does this story mean when that story broke. The first thing that happened was that the elders of the Mormon Church and senior politicians and a state senator and all the rest of it all came out and said in our opinion this man must must resign the only thing for him to do is resign the power block. So the story recognize it as a story B or story say is that he must go well then a little bit later he thought it over and he said well why should I just cast myself over the cliff so quickly. I claim this was entrapment without getting into the story. It's the duty of the press to pursue the facts even if they

are in the favor of the person who was condemned in the first story not everybody that is victimized by a biased story will say is a Fanny Fox calling into the Potomac motel but you get into the area of grand jury indictments you know everybody knows that a grand jury indictment is not does not mean conviction and does not mean anybody is guilty of anything but it's an awful tough thing to live with you know. Well it's the same thing I mean this Congress person is going to be stigmatized for the rest of his life even if he eventually proves entrapment. That's not going to take away the internet is not going to take away the public impression it's not going to take away the fact that it was a front page story for several days. Probably everybody in Utah knows about it. That's part of his baggage now that he will carry with him for the rest of his life. If

that case is not one in which I have a great which I have a great deal of sympathy and it seems to me the press treated that about the way it should have although I understand what you're saying and that is that the press probably should have pursued the case and continue to pursue the case more aggressively in an effort to find out whether his charge of entrapment is is valid. Well my my only point is I'm I'm in favor of an uncensored unfettered press in every way. But I want that present to realize what the story is that they're printing about a person on a given day or during a given week and then run the follow up that is necessary to protect that individual's rights now. You know another leading case if you remember Time Incorporated versus Hill this was decided in 1967. It originally goes back to the 50s but Mr. Hill and his family were trapped captured by some criminals invaded their their homes. They were not physically harmed they were intimidated they

were psychologically abused that sort of thing. But the play the desperate hours came out on it. And in the play the desperate hours things happen to the the fictional characters that didn't happen to the hills. And you know TIME magazine Life magazine ran a picture story about the desperate hours and. Title a true crime inspires tense play and said you know as it turned out that the play was a reenactment of the experiences of the James Hill family who were held captive in 1952 while Hill sued and won his case. Because when you do allege something that involves the privacy of an individual this case a family private individual a private individual you must be very circumspect about where you go with it. And so my point before was the press ought to go on with it even if it leads to the.

Even if it leads to the vindication of the accused party. Yeah well that's certainly true. Time time Hill case. The press was wrong you know. And I think the compelling part of that case is the duty of care that's required on the part of the press. I don't have much of a problem with the current efforts of the Supreme Court to force the press to exercise a high degree of care in particular in printing material that will be substantially damaging to private individuals. I don't think that's too much to ask you know. And I think you've got to go you've got to be able to show that you were not negligent that you weren't sloppy you know that you. Took the thing as seriously as it ought to be treated. That seems to me a responsibility that the press ought to be able to sustain. To say on the other hand that the press ought to as a matter of constitutional law be

forced out of covering areas of the private lives of people when there can be any case made that there's a public interest involved. I think really runs headlong into the First Amendment and something I would try to read the First Amendment is is rather interesting because it begins Congress shall make no law is appropriate Bishan against intrusions into certain areas freedom of press assembly religion petition and so on. And in understanding it it is based upon a moralistic interpretation of the rights of individuals or what we now call a civil libertarian approach rather than a legal mystic approach. The rule of reason I think is the most important rule of the process don't you. Well I think that is true and that's why I shudder when I hear people in the journalism business hiding under the First Amendment and saying you can't violate my First Amendment rights and it's the First Amendment I believe in the absolute

interpretation of first time and I think that's baloney and I think that attitude is one that's going to get and has gotten the press into a lot of trouble in the courts because courts and legislatures simply aren't going to. Except that that's a view that's taken not Hentoff for example as you as you know he considers himself an absolutist on the First Amendment. You say that's a very difficult position to hold. Well I think it's I think it's bad politics. I mean I think it's bad strategy. It is very close to my personal beliefs. But I think it's a mistake for the press to hide behind its tragic mistakes on those kinds of grounds you know and when because the public won't stand for it in legislatures will think of something and courts will think of something as a way to force the bad bad examples on the right track and in course of doing so they will by the very nature have to restrict the people who are doing their job responsibly and I think we're going to unless the press begins to take it upon

themselves not to use the First Amendment and excuse but to accept with the First Amendment rights their responsibilities. We will find ourselves five ten years from now with a less free press than we have today and I think that's what the risk is. Because you and I were brought up when the editor in the movies was usually in the West and it was usually Henry Hall and somebody always threw a burning something or other into his newspaper to burn him out but this didn't stop him because he believed not in the he believe in the privileges of the press not necessarily the responsibilities he felt there was a privilege to tell the people the facts and it was his responsibility in fact to get the press going again. But he didn't stand waving the Constitution he knew it as a matter of personal testament. Do you think there are sufficient editors that feel that way today in real life. That's a hard question certainly. To me the most compelling part of All The President's Men was the performance of been Bradley and was his willingness to stand

behind his reporters when they convinced him that they really had a story even though the risks were very substantial I think in Bradley's performance in that genre. On the other hand there are an awful lot of people who are editors of publications who are much more. Business people when they are journalists and they tend to look at their job in a very different light. And Bradley does or than did the guy who spent all night getting his press to work again. Of course the business of journalism though is people not corporate ledgers in the ultimate sense you could be a very successful financier in journalism and be a lousy publisher or or editor. Well that's true. Out of business journalists are doing very well. I'm absolutely delighted to have had this conversation with you is there anything that we have missed that you'd like to do it in a half a minute. Well there are hundreds of things that we could talk about but I just only thought I'd like to

leave is that the job is really the presses to try to figure out what those standards ought to be and what their limits ought to be and the risk of not doing so is substantial in First Amendment rights that the press is amenable to the law but also to common sense that we hope that common sense prevails. Thank you very much Marc Lynskey for joining us on this issue of First Amendment of people. V8 radio partner in cooperation with the Institute for democratic communicator and a Boston University had heard of the First Amendment and a paper on an examination of civil liberties and the media in the 1970s. This program was recorded in the studios of WGBH radio Boston.