Press Freedom vs. Privacy

A gossip site posts a celebrity sex tape and calls it news. A sports network tweets a star player's hospital chart. A website posts the mugshot of anyone arrested for anything. Most people assume that if something is true, the press can publish it. But the First Amendment does not protect every truthful publication, and courts are now deciding for themselves what counts as news.

In this TalksOnLaw interview, Joel Cohen sits down with Amy Gajda, then a professor at Tulane Law School and now the Jeffrey D. Forchelli Professor of Law at Brooklyn Law School, a former journalist and the author of The First Amendment Bubble, to examine where newsworthiness ends and privacy begins in an age when anyone can publish.

Everyone Is a Publisher

Gajda, who spent years as a television journalist, recalls that newsrooms once had several layers of review before anything aired. Someone would always ask whether a story might be defamatory or invade someone's privacy. Now anyone can publish to the world with the press of a button, and she sees courts responding by taking a second look at publications, especially on the internet. Most people know that false statements can lead to a defamation suit, she says, but few understand that even truthful information has limits. If a plaintiff can convince one judge or one jury that the information is private, a verdict can follow, even against mainstream media.

From Warren and Brandeis to Sullivan

Gajda traces the modern right to privacy to Samuel Warren and Louis Brandeis's 1890 law review article "The Right to Privacy." Warren, she explains, was motivated almost entirely by press coverage of his family's social life, and the article reads as strongly anti-media. Courts decided cases both ways in the 1920s and 1930s. After New York Times v. Sullivan gave the press strong protection in defamation cases in the 1960s, courts became far more deferential to media on privacy claims as well. She adds that journalists long declined to report on presidents' private lives, partly because of close relationships with the people they covered and partly because ethics codes treat even public figures as entitled to some privacy.

Three Views of Newsworthiness

The key claim, Gajda explains, is the tort of publication of private facts. A plaintiff must show that the information was private, that its disclosure would be highly offensive to a reasonable person, and that it was not of legitimate public concern. Newsworthiness therefore works as the publisher's defense. Sexual information and nudity have traditionally been protected, and the 1977 Restatement treats income tax information as private. Related claims include intrusion upon seclusion, the classic peeping-Tom case, and intentional or negligent infliction of emotional distress. She describes three different views of newsworthiness: the public's, which covers anything it finds interesting; journalists', which ethics codes temper with respect for privacy; and the law's, which is broader than journalism ethics but still has limits. A journalist might be legally free to report a politician's affair and still choose not to.

Privacy in Public Places

Being out in public does not always mean giving up privacy. Gajda notes that even in 1977, the Restatement's authors said that using binoculars to see into a second-story window could be an invasion of privacy, because technology revealed what the naked eye could not. A long-lens photograph of someone sunbathing nude on a seemingly deserted island could raise the same problem. She describes a New York case in which a photographer used a telephoto lens to photograph neighbors inside their apartments and exhibited the images as art. The neighbors lost because New York recognizes only a narrow statutory privacy claim for misappropriation of a person's identity, but she says the result could be different in states such as California or Texas.

The Hulk Hogan Case

Gajda says she had long told her students that a website would one day publish a celebrity sex tape and claim it was newsworthy. Gawker did exactly that with a secretly recorded video of Hulk Hogan, whose real name is Terry Bollea, and refused his request to take it down. She explains that whether he knew he was being filmed would not have mattered. What mattered was that he had not agreed to publication. Gawker argued that millions of views proved public interest and that Hogan had discussed his sex life on The Howard Stern Show. A Florida jury rejected those arguments and returned a verdict of about $140 million, and Gawker went bankrupt. She also discusses sportscaster Erin Andrews, who won a large verdict after a man secretly filmed her through a hotel-room peephole and posted the video online, and she wonders whether that verdict, which came shortly before Hogan's, influenced his jury.

Medical Charts and Sonograms

After Hogan's win, Gajda believes, plaintiffs' lawyers became bolder. When New York Giants player Jason Pierre-Paul lost a finger in a fireworks accident, ESPN tweeted an image of his medical chart. The court treated the amputation itself as newsworthy but let his private-facts claim proceed, pointing to HIPAA as evidence that society treats medical records as private. The case settled soon after. In a similar case, boxer Floyd Mayweather posted that his former fiancée had ended a pregnancy, along with a sonogram image. The court allowed the statement about the abortion as newsworthy but let the claim over the sonogram go forward. A celebrity's pregnancy is news, Gajda explains, but publishing a medical chart or sonogram to prove it may go too far.

Morbid Prying, Embarrassing Moments, and Children

The Restatement defines public concern broadly enough to include matters of "more or less deplorable" popular appeal, but it excludes "morbid and sensational prying" into private lives "for its own sake." Gajda says courts are only now learning where that line falls. News organizations usually decline to show dead bodies for ethical reasons, so courts rarely faced the issue. She describes a court allowing a mother's claim against a website that posted video of her son dying after being pulled from a car wreck, and a successful claim by a mother whose dead child's autopsy photo a prosecutor showed to a journalist. Embarrassing moments in public, like picking your nose or a coffee stain, are generally fair game, and meme cases have so far failed. But in a classic case, a woman whose skirt was blown up by an air jet as she left a county-fair fun house won her claim. Gajda says the next frontier may be children whose parents posted their mental-health diagnoses online and who later want that information removed.

Journalists and Quasi-Journalists

Gajda distinguishes journalists, who follow ethics codes and weigh privacy against news value every day, from what she calls "quasi-journalists," such as bloggers and YouTubers who often do not. In theory, she says, the Constitution protects both equally, but judges may be more willing to second-guess publishers who skip that ethical judgment. She believes a newsroom weighing Hogan's privacy against the tape's news value would not have published it, or would at least have blacked out the nudity. Her central concern is that decisions celebrating privacy against fringe publishers create precedent that later binds mainstream media as well.

Mugshots and the Right to Be Forgotten

Mugshots have long been treated as newsworthy, but Gajda recalls that her newsrooms requested them only for crimes they considered newsworthy. Some websites now post every booking photo, and some charge people to take them down. Because the United States has traditionally not recognized a right to be forgotten, those images stay online. Some legislatures have responded by barring police from releasing mugshots for certain low-level offenses. She also mentions a Pennsylvania trial court that ordered a website to remove a criminal history report from decades earlier as no longer newsworthy. The idea is an old one, she notes. The Restatement authors used Jean Valjean of Les Misérables to suggest that even once-public information about a person's past can become private again.

What to Know Now

Several of the cases Gajda discusses have since been resolved. The Hogan verdict, returned in March 2016, included $115 million in compensatory and $25 million in punitive damages. Gawker Media filed for bankruptcy, was sold to Univision, and settled with Hogan for $31 million in November 2016. Hogan died in July 2025. Erin Andrews's $55 million verdict, returned eleven days before Hogan's, was apportioned between the man who filmed her and the hotel's owner and operator. Pierre-Paul's case, in which a federal judge in Florida refused to dismiss his claim in August 2016, settled in January 2017. ESPN maintained that its reporting was newsworthy. In the Mayweather case, a California appeals court held in 2017 that the sonogram claim could proceed, and the parties settled in 2021. In Marsh v. County of San Diego (2012), the federal appeals court recognized a parent's constitutional right to control images of a deceased child, though the county and the former prosecutor were not held liable.

The law has also moved toward the protections Gajda describes. In May 2025, South Carolina became the last state to criminalize nonconsensual sharing of intimate images. That same month, the federal TAKE IT DOWN Act made it a crime to publish nonconsensual intimate images, including AI-generated deepfakes. Since May 2026, it has required covered platforms to remove such images within 48 hours of a valid request. California and several other states have restricted law-enforcement release of booking photos or regulated mugshot websites. The United States still has no general right to be forgotten comparable to the European Union's under Article 17 of the GDPR. The Supreme Court declined in March 2025 to reconsider New York Times v. Sullivan. The American Law Institute is drafting a Restatement (Third) of Torts on defamation and privacy. Its first defamation chapters were approved in 2026, and the privacy provisions remain in progress. Gajda's 2022 book, Seek and Hide: The Tangled History of the Right to Privacy, traces the long conflict between privacy and the press.