Privacy in a public space: Where are the boundaries?
**Also by Layton Dudley**
This post was originally published on my JN 499 class blog at The University of Alabama, a course dealing with journalism ethics: https://uajn499.wordpress.com/2015/12/08/privacy-in-a-public-space-where-are-the-boundaries/
Alec Lewis was a little late to the party on the day that changed the landscape of the University of Missouri forever.
On that morning, Monday, Nov. 9, then-University of Missouri system president Tim Wolfe stepped down from his position, presumably bringing an end to the student-led protests that called for his resignation over his handling of racial unrest at the university.
But while perhaps their biggest demand of all had finally been met months after their initial protests began and helped bring an end to one student’s weeklong hunger strike, it didn’t all just come to an immediate halt.
On Carnahan Quad, the primary site of the student protests located centrally on the Missouri campus, nothing much had changed despite having caught wind of the news of Wolfe’s resignation. Protests continued despite some open celebration elsewhere and reporters subsequently covered it as one might expect. For whatever reason, though, the latter became an issue for those being covered.
By the time Lewis arrived at the quad around noon, one particular noteworthy incident had already taken place, though it was not long until he found out the details and, later that same day, saw it all himself in a viral video of it captured and uploaded to YouTube.
It was there where Tim Tai, a student photographer covering the event as a freelancer for ESPN, was vehemently told by Concerned Student 1950 – the name of the student protest group whose moniker references the year the university admitted its first black student – along with a handful of Mizzou professors and other staffers that he needed to “back up” and “give them space.”
The biggest issue with that, though? It was all coming while on a public space, free and accessible to use for everyone equally – even for journalists neutral to the happenings.
“He was just taking pictures above everybody and he started getting yelled at,” said Lewis, an assistant sports editor for the Maneater, the school’s student newspaper, “which doesn’t really make sense in a way because you question why a group who wants to get their word out would not want their pictures to be taken.”
The legal perspective
Given that it occurred on a public space, Tai unquestionably had a right to be there, according to Dr. Matthew Bunker, a media law professor at The University of Alabama.
For Bunker, who received his Ph.D. from the University of Florida in 1993, it did not take long for him to conclude that Concerned Student 1950 had a weak argument against Tai’s presence there – at least legally speaking.
And while legally and ethically aren’t one in the same, they are related to some degree, where, at least in many cases, if there are no legal concerns, it’s likely that there shouldn’t be any ethical concerns, either.
“Typically in a public space like that, you have a right to be there, you have a right under the First Amendment,” Bunker said. “It’s a public university, and it’s an open space where they allow people to gather, so yeah, you would typically have a right to be there, just as a citizen much less as a member of the member of the press.”
In their defense in the nearly six-and-a-half-minute video shot by another student journalist, Mark Schierbecker, Concerned Student 1950 essentially told Tai he was invading their privacy and that of those in the tent encampment set up on the quad by the protesters, which were the focus of his desired photos. In other words, they claimed that this was a case of intrusion, a privacy tort that violates a person’s solitude or seclusion.
In a literal sense, it’s possible that Concerned Student 1950 may have had a point in their argument, but their defense, if they were to have taken it to court, would have never stood up, Bunker said.
“You don’t have a reasonable expectation of privacy in a public space like that,” he said. “So there wouldn’t be any kind of a tort-based thing that would work, presumably, because you have to have a reasonable expectation of privacy to have a legitimate intrusion claim.”
Hypothetically, Bunker said a best-case scenario in the event that a civil suit was brought forth by Concerned Student 1950 against Tai would have been if he had taken photos of students who were physically inside the tents despite their placement in a public space.
“I think it’s possible that a court might say, inside the tent, maybe you have some kind of expectation of privacy, I think that’s possible,” said Bunker, who believes a court could interpret the tents like that of a home, where full privacy is almost always permitted. “I think it’s possible that one goes the other way (in favor of Concerned Student 1950).”
According to a Columbia Journalism Review article explaining the rationale for why journalists “have the right to cover the University of Missouri protests,” if anything, Tai, who did go as far as to explain the First Amendment to a few protesters during the incident, could make a legitimate case against the present Mizzou employees, who are state actors, for violating his First Amendment rights. He could even potentially call them on third-degree assault under Missouri law, too, for their physical contact made against him.
But, as Tai told the article’s author, Dr. Jonathan Peters, a former University of Missouri professor who had Tai as a student in his media law class, he doesn’t feel the need to do that:
“I don’t have ill will toward the professors, staff, and students,” Tai said. “I think they had good intentions but were very passionate, and I wish we could both learn something from the encounter.”
The protest perspective
Though it does not explicitly state it, the Society of Professional Journalists’ code of ethics states that a journalist should act objectively in their reporting. Specifically, it also highlights how they should minimize harm, as well.
In order to that, though, it means empathizing with the subjects of a story and seeing things from their perspective, which Dr. Meredith Bagley isn’t sure was the case with Tai.
While she doesn’t deny that Tai acted well within his legal rights, Bagley, a communication studies professor at Alabama who teaches a course on the rhetoric of social protest, believes there’s more to the incident that took place when a journalist places themselves in the protesters’ shoes.
Bagley notes that just as Tai and other journalists have a right to be there as made clear in the First Amendment that same amendment protects the rights of the protesters. Yet, at the same time, if the media become overbearing with their own protected freedoms, the protest may not be able to go as they planned and desired.
“When you’re in change movements, it’s exhausting and you’re vulnerable and you’re in the spot all the time,” Bagley said. “So a movement might want to kind of have that recuperation space inside the tents and not have that be a public space.”
On top of that, she adds that it shouldn’t be lost on journalists that their presence at these events isn’t unavoidably necessary anymore, thanks to social media.
“One thing that has irrevocably changed, I think, for positive is that movements can put out their own message,” Bagley said. “They’re not reliant on the press showing up anymore.”
A Washington Post op-ed, however, takes a much more radical approach to that, going as far as to say they don’t “owe” Tai or any other journalist anything, even while agreeing that he acted within his legal rights to be there.
“They did not represent a government entity stonewalling access to public information,” wrote Terrell Jermaine Starr, a black New York City-based freelance journalist who writes about U.S. and Russian politics. “They were not public officials hiding from media questions. They were young people trying to build a community free not only of the racism that has recently wracked Mizzou’s campus but also of the insensitivity they encounter in the news media: Newspapers, Web sites and TV commentary had already been filled by punditry telling black students to ‘toughen up’ and “grow a pair.’”
Based on his own firsthand experiences with the Missouri protests as a whole, Lewis, while not present during Tai’s incident, picked up on the protesters’ fears Starr alluded to in his piece.
In one instance, while merely checking out a protest held earlier in the week at the university’s student center, another Maneater journalist, who was covering the event, advised Lewis that he should leave because the protesters didn’t know him and thus were distrusting of him, even though he had no intentions of doing any reporting at the time.
In another case, after finishing a phone interview with one of the 11 original founders of Concerned Student 1950, he was specifically told by the protester that he wanted everything in the story to be factual, though that’s usually seen as a given.
So, while he found it somewhat odd that they wanted no media at all in their “safe space,” a private area often in a public space designated to protect marginalized groups from hate speech, he understood there were concerns amongst them, even when looking at it from a journalist approach.
“They’re almost scared, I think, to slip up at times with the media there, so that’s why you see that kind of stuff happening,” said Lewis, a freshman.
Even when considering the situation from both perspectives, it remains difficult to pinpoint any blatant error made by Tai in the entirety of his since well documented incident with Concerned Student 1950.
Legally, most agree that they had no qualms with his presence there, and even many who thought he should have respectfully stayed out of their vicinity as they requested did not think he misbehaved in any way in his handling of the situation.
Still, that’s not to say ethical considerations don’t exist in these scenarios dealing with privacy.
While both sides make fair points, journalists, like Tai, shouldn’t so readily stake their claim, even if they are fully aware that they have a right to be there. Rather than come in with somewhat of a sense of entitlement, as Starr writes in his op-ed, journalists should first map out the situation as a whole before acting, even if it seems apparent that it’s a non-issue.
“Our press passes don’t give us the license to bully ourselves into any and all spaces where our presence is not appreciated,” he wrote. “It’s one thing to demand access to public lands; it’s another to demand access to people’s grieving.”
In Tai’s case, the red flags should have been fairly obvious, especially considering that one student was on a hunger strike there – a life or death situation.
“You got to be human about it almost, you just got to understand where you are, what you’re doing and ethics are the biggest thing in this kind of situation,” Lewis said.
Ultimately, the journalist’s decision comes down to their own individual judgment after (hopefully) thinking the matter through, though it might help, too, to simply work with the subjects of the desired story.
In Tai’s case, for example, it seems likely that he would have been denied even after respectfully asking if he could take their photos and photos of the tents right then and there or even later on that same day. Regardless, though, he does more for his part by acting transparently, another core pillar of the Society of Professional Journalists’ code of ethics, and it may, at least to some extent, calm their media fears, too, as it could help develop trust between both parties, too.
But, of course, while he should thoughtfully consider their requests even after hypothetically speaking to them, it’s more imperative that he balances it with all other factors first, such as the need to serve the greater public with the information he is assigned to gain.
Perhaps some of it comes in hindsight, but, for Tai, ethical considerations included, some privacy situations, when in a public space, just don’t allow for an absent media, as he told the Columbia Journalism Review.
“As a photojournalist, my job is often intrusive and uncomfortable,” Tai said. “I don’t take joy in that. …You take the scene as it presents itself, and you try to make impactful images that tell the story. … And sometimes you have to put down the camera. But national breaking news on a public lawn is not one of those times.”