Seek and Hide

November 1, 2021

In the midst of battles to keep Big Tech from exploiting personal data and journalists from revealing information politicians want kept quiet, Tulane law professor Gadja reminds us that the standoff between the individual's right to privacy and the public's right to know has been around for a long time. Until the advent of investigative reporting in the Sixties, she argues, the tendency was to seek protection for the rich from journalistic scourgings; here she argues for a necessary balance between personal and public need.

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January 24, 2022
This probing legal history documents the antagonism in American jurisprudence between freedom of the press and the right to keep information private. Journalist and Tulane law professor Gajda (The First Amendment Bubble) surveys landmarks in the parsing of First Amendment and privacy rights by the courts, which long held that journalists could be sued or jailed for reporting private information, including government malfeasance. (One editor was prosecuted by the Grover Cleveland administration for reporting on illegal fundraising and sexual harassment by a federal official.) The 20th century brought enormous expansion of the media’s right to divulge everything from Vietnam War documents to an individual’s sexual orientation, but anxiety about new surveillance technologies has recently sparked legal backlashes against revenge porn, doxing, and other privacy violations. Gajda gives full due to each side, showing how the right to be free from public scrutiny in intimate matters is as fundamental to liberty as press freedom, but can also shield the wrongdoing of the powerful. She also sets her analysis within a lively history of scandalmongering, including Thomas Jefferson and Alexander Hamilton’s attempts to use the press to accuse each other of sexual improprieties. This nuanced and entertaining study offers crucial perspective on the “tension between the right to privacy and the right to know the truth.” Agent: Carolyn Savarese, Kneerim & Williams.

February 15, 2022
The right to privacy is not a given, as this complicated legal history makes clear. As law professor Gajda writes, there has been tension between the right to privacy and the right of the free press to publish news since the Colonial era. Nonetheless, the modern period of privacy law begins, by her account, with a specific incident in the late 19th century when a risqu� dancer contested the publication of a photograph of her onstage act. The event coincided with the publication of an article by future Supreme Court Justice Louis Brandeis, whose firm did so brisk a business in privacy-related lawsuits that he felt comfortable turning down one such action by none other than Mark Twain. "The U.S. Supreme Court has never decided precisely when the right to privacy trumps a freedom to publish a truth," writes Gajda. Instead, the court has referred the matter to the states, which has resulted in a patchwork of laws that serve to highlight the tension even further: "Society needs [privacy], the law is there on which to build, and the only question is, which way do we as a society want to go, especially when the right to privacy is so often pitted against that other critical right, the freedom of expression?" Just as with the Supreme Court, American society seems torn, and the legal pendulum swings, sometimes weighing heavily in favor of the press (as with, for instance, the publication of the Pentagon Papers) and sometimes siding, by omission or commission, with those who claim the right to privacy--Donald Trump and his taxes, to name just one of the author's examples. Clearly, she concludes, the matter is legislative as much as judicial, such that Congress must weigh in on what constitutes, as one Supreme Court decision framed it, "a subject of legitimate news interest." Educative reading for lawyers, journalists, and others who must balance the right to make known with the right to conceal.

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February 4, 2022

With this stimulating, thoughtful work Gajda (Tulane Law Sch.; The First Amendment Bubble: How Privacy and Paparazzi Threaten a Free Press) argues that though the privilege of the press to print newsworthy information is a cornerstone of free speech, it has historically been tempered by privacy concerns. She opens with a quick primer on United States law for unfamiliar readers, then explores prominent court cases, dating back to the founding of the United States, that touch on privacy and the press. A common theme throughout is the balance between prominent individuals who want to protect their privacy preserved and the right of the public to be informed. Additionally, Gajda interrogates how evolving technologies influence popular perceptions of privacy. A large portion of the work centers on the seminal article "The Right to Privacy" (1890), written by Sam Warren and Louis Brandeis for the Harvard Law Review, on which many legal opinions are based. Further developments in journalism are also examined, including the development of an industry-wide code of ethics. Finally, Gajda considers modern privacy issues such as the "right to be forgotten," data collection, political figures, and surveillance. VERDICT A fascinating and thought-provoking analysis of the history of privacy issues that will be accessible to a general audience.--Rebekah Kati

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