The Ethics of Freedom of the Press

On the face of it, this is a non-issue in the way that only an aspect of Constitutional Law can be. The Right to Freedom of the Press cannot be abridged in any fashion anywhere in the United States, and probably shouldn’t be. Certainly, there don’t appear to be any historical examples of government-sponsored censorship, or government controlled media, that turned out to be a good thing. But in a world where almost any information that is released in any fashion can be made accessible to anyone with a computer in a matter of seconds, the question becomes more one of ethics than law anyway. I thought we should take a closer look…

To begin with, despite the things that some people like to claim on the Internet, you can’t really say or print anything you want. The First Amendment protections were never intended to shield anyone from the consequences of actual crimes or of tortious acts. Claiming that an object you are selling is valuable when it isn’t is still fraud, and claiming that someone has defrauded you when they haven’t is still slander, or libel if you publish it. Similarly, the use or distribution of material somebody else wrote, drew, photographed, filmed or otherwise created without their permission is a copyright violation, and generally regarded as theft. But what about a case where there is no law preventing the use of some material, and no practical chance of a civil suit, but the possibility still exists of causing harm – physical, monetary or emotional – to another party?

Consider, if you will, any of the cases where crime scene photos, or pictures taken after an automobile accident, have been leaked or sold and then posted online. There was another one of these in Montana this past week, but you can find similar examples in California and several other states. Depending on the jurisdiction and the appropriate state law, there may or may not be any legal prohibition against releasing these images to the public, or distributing them on the air or over the Internet. One could argue that the people who run television stations and news websites have a fiduciary responsibility to generate revenue for their owners, and that if displaying legally-obtained images increases viewership or site traffic they have a duty to display those images. One could also argue that as journalists they have a duty to inform the public of newsworthy events occurring in their community, even if those events are tragic. But I personally would not want to be the one assigned to explain those principles to a grieving family who had first learned of the loss of a loved one when they saw the footage on the 6:00 news…

I’m quite sure I don’t need to tell anyone reading this post (assuming I have readers) how problematic it would be to have officials at any level of government – or worse, private citizens with “influence” over those officials – decide what information should be available to the public. The potential for abuse in product liability cases alone would be monumental. But at the same time, relying on the conscience, discretion or human decency of those managers in charge of the news media does not appear to be working. All of which brings me to the question:

At what point does the right of the public to know about the conditions, hazards, risks, or misfortunes befalling their community outweigh the right of family, friends, or victims of a tragedy to privacy? Does our answer change depending on how much time has passed since the tragic events, or on how much of a threat the underlying cause of that tragedy poses to the public at large? And even assuming that it was possible to identify such a point, can we trust anyone outside of the media companies themselves to make such a judgement? Or are should we just leave those laws as they stand and hope for the best?

It’s worth thinking about…