Who Decides What is Newsworthy? Journalists vs. the Legal System

No one likes lawyers. My dad likes to joke that it’s a shame how 99 percent of lawyers give the rest of us a bad name. Not only am I lawyer, but I am also trained as a journalist, which arguably ranks even lower on the list of ill-reputed professions in the U.S. So what happens when these two maligned professions go head to head?

When a plaintiff files suit because private information about her was aired to the public, the judge must decide whether to defer to the journalist’s judgment that the information was newsworthy (in which case the claim is dismissed) or have the jury decide. Legal scholar Amy Gadja argues that judges in these situations are increasingly second-guessing publishing decisions by reporters and sending these cases to trial. Gadja sees this judicial scrutiny as a major impediment to press freedom, but I am not convinced.

If we believe privacy torts like public disclosure of private facts have a valid place in the law, then it must be the case that sometimes privacy values trump the public’s right to know. I do not believe there is any valid reason to think professional journalists are uniquely qualified to make that determination. While journalists routinely weigh these interests when making editorial judgments, their final decision on whether to publish information does not necessarily reflect the correct balance. In my opinion, these amorphous, highly-contextual legal determinations are particularly well-suited for juries.

One of the primary advantages of our jury system is that it ensures that the law is relatively consistent with social norms and popular notions of right and wrong. Now that ordinary citizens have the power to publish information to the world with the click of a button, it seems to me that social norms and values are an especially appropriate arbiter of conflicts between privacy interests and the First Amendment. Making journalistic ethics more consistent with social norms may even increase the legitimacy of the mainstream press in the eyes of the public, which could mean more people would pay attention to the news. Journalism should be antagonistic to power, but there is no good reason that the press must continue to have an adverse relationship with the citizenry.

The alternative is to give professional journalists special deference under the law, granting them power to determine the legal definition of newsworthiness for their own editorial judgments and for similar publishing decisions by citizen journalists and bloggers. At the risk of sounding too cynical, that would mean leaving the tricky balance of privacy interests and First Amendment values to a profession that has made editorial decisions in recent history largely based on whether the information would sell newspapers or increase ratings. Further, to the extent that editorial judgments by professional journalists are made on reasoned opinions about the public’s right to know, I see no reason to trust those judgments more than reasoned deliberation on the same issue by a blogger or an average jury member.

Believing that professional journalists are the only people who sufficiently comprehend the importance of freedom of speech or journalistic values seems to me to be rooted in the antiquated and idealized notion of an elite, all-knowing press. It is time to stop hanging on to a Woodward and Bernstein-inspired notion of the press and start embracing the democratization of news production, rather than lamenting it. In the digital age, anyone can be a journalist, and it makes sense for our legal system to reflect the realities of modern journalism instead of unnecessarily preserving the power of traditional news outlets.