The Justices and News Judgment: The Supreme Court as News Editor

In 2011, in Snyder v. Phelps, the military funeral protest case involving the Westboro Baptist Church, the United States Supreme Court again warned that courts needed to protect speech broadly, lest judges become what the Court called "inadvertent censors."1 In the opinion, the Court touched upon what might be appropriate news, though the case only tangentially involved journalism. In a paragraph that specifically mentioned newsworthiness, the Court reminded readers that a matter of public concern2 would be any matter that related to political, social, or other concerns of the community, regardless of its inappropriateness or controversial nature.3The Snyder opinion is filled with related citations to the Court's earlier, famous First Amendment jurisprudence upholding media rights to report or publish, including a case that refused to hold a newspaper liable for publishing the name of a rape victim,4 a case in which a magazine published a photo spread fictionalizing in part a family's terror at the hands of captors,5 and a case in which minister Jerry Falwell was parodied in a particularly tasteless way by Hustler magazine.6The Snyder case, therefore, was obviously not the first time the Justices had tried their hand at defining newsworthiness. They had been doing so for well more than a century, in fact, and long before those famous cited decisions, sometimes acting more directly as after-the-fact editors and sometimes mentioning news value in a dicta-like fashion. In this way, the Supreme Court has decades of experience acting as a kind of a super news editor.To better understand this role and why it matters, it is important to understand what non-judicial news editors do. Within any newsroom, news editors have tremendous power and responsibility. They ultimately decide what news and information is appropriate public fodder and what news and information, though true, is better left unwritten or unsaid.7 A news editor, for example, might decide that certain truthful information is too private or too embarrassing or too harmful to be part of a news story, even if the information might be relevant to some readers. A politician's affair, for example, might be withheld if reporters or editors ultimately decide that it has little to do with the politician's political life.8 Given the journalistic ethics standard for public persons, such information about a private person would likely never be published by a mainstream news source because, in any journalist's estimation, there would be nothing newsworthy for the public in the revelation.And this is where the judicial system comes in. Should similarly private information be published about a public or private figure, and should the person sue for a privacy invasion, courts and juries are ultimately left to decide whether the public value of the news item should trump the person's right to privacy. The Restatement, for example, describes the balance this way:One who gives publicity to a matter concerning the private life of another is subject to liability to the other for invasion of his privacy, if the matter publicized is of a kind that(a) would be highly offensive to a reasonable person, and(b) is not of legitimate concern to the public.9A definition for news, then, becomes highly relevant in privacy causes of action, among others, because a fact finder deciding a privacy claim is called upon to act as a news editor in deciding whether such information was of a type appropriate for public dissemination - whether it was "of legitimate public concern" or not. Legitimate public concern is not based upon any public need to know, however. The Restatement offers a broad definition, suggesting that matters of legitimate public concern include accidents, rare diseases, preteen pregnancy, and multiple other matters of "more or less deplorable, popular appeal."10I have suggested previously that lower courts have lately been more accepting of the publication of private-facts tort and related privacy-like causes of action. …