Privacy, Press, and the Right to Be Forgotten in the United States

When the European Court of Justice in effect accepted a Right to Be Forgotten in 2014, ruling that a man had a right to privacy in his past economic troubles, many suggested that a similar right would be neither welcomed nor constitutional in the United States given the Right’s impact on First Amendment-related freedoms. Even so, a number of state and federal courts have recently used language that embraces in a normative sense the appropriateness of such a Right. These court decisions protect an individual’s personal history in a press-relevant way: they balance individual privacy rights against the public value of older truthful information and decide at times that privacy should win out. In other words, they recognize that an individual whose embarrassing past has been revealed by another can sue for invasion of privacy in the United States, even when the historic information was once public. This Article explores Right to Be Forgotten-sensibilities in United States jurisprudence and suggests that such a Right has a foundation in historical case law and present-day statutes. It argues that the legal conception of privacy in one’s past may have some limited practical and important purposes but warns that any Right to Be Forgotten must be cabined effectively by presuming newsworthiness—a word defined similarly in law and journalism—in order to protect significant and competing First Amendment interests at a time when people in high places have vowed to curb press freedoms

Scandal! Early Supreme Court News Coverage and the Justice-Journalist Divide

In January of 1900, United States Supreme Court Associate Justice Henry Brown (author of Plessy v. Ferguson) had apparently just about had it with the press. He gave what was called [t]he principal address before members of the New York State Bar Association in Albany and focused not principally on law, but on what he called journalism\u27s sensationalistic methods.\u27 Ugly stories are told, he told the gathered attorneys, of spies put upon houses to unearth domestic scandals or upon the steps of public men to ferret out political secrets, including early reports of court decisions. The greatest of the cruelties done by journalists, in Justice Brown\u27s estimation, were their assaults upon private character. The worst of the publications, he complained, were those newspapers that published Sunday editions. This Essay explores some of that early press coverage of the Supreme Court, particularly of its Justices, and it attempts to explain what could have so provoked Justice Brown. The story is personal to Justice Brown, who was of some interest to journalists of the time, but it is also much broader. A Supreme Court press corps that had once been at least somewhat compliant and respectful of the Court became more critical of both the Justices and their decisions, and more interested in them as personalities. Ultimately, this Essay argues that such a history-one that began with at least partial quiet deference and turned distinctly toward sensationalism-laid the groundwork for Justice Brown\u27s anti- journalism speech and the distrust shown to media by today\u27s Justices