How the First Amendment applies to Jennifer Lawrence

Amy Gajdas new book overstates the threat to press freedom in digital-age court rulings

The First Amendment Bubble: How Privacy and Paparazzi Threaten a Free Press By Amy Gajda

Harvard University Press 306 pages; $35

In late August, someone anonymously posted hacked nude photographs of the actress Jennifer Lawrence and other celebrities on an internet bulletin board. Celebrity blogger Perez Hilton posted the photos on his gossip website. Shortly afterward, buffeted by angry social-media responses and the specter of litigation, Hilton apologized and took them down.

Any second-year law student could concoct a legal defense to an invasion of privacy claim by Lawrence: These are truthful images of a public figure who has courted public attention worldwide. Hilton broke no laws; he simply showed images made public by others, heightening awareness of the important controversy over internet privacy.

Its not a good defense, though. I think a court could reject it without doing damage to the First Amendment. Amy Gajda, a former broadcast journalist turned law professor, would probably agree. But she also would worry that more cases like this one would, in time, erode freedoms for serious journalism.

The Lawrence flap occurred too late to be included in The First Amendment Bubble: How Privacy and Paparazzi Threaten a Free Press. The book begins with an account of a video posted on Gawker in 2012 of the professional wrestler Hulk Hogan in a private sexual encounter. A Florida state trial judge ordered Gawker to take it down, showing, in Gajdas words, a new willingness to limit public disclosure of truthful information.

The federal courts quickly stepped in to reverse this result, she notes; the Hogan tape, in all its glory, remains available online today. So the courts new willingness might more properly be called ambivalence. Gajda nonetheless believes that the new willingness is growing stronger, and that the obtuseness of mainstream media outlets runs the risk of making things worse. [T]here seems to be a modern-age shift back toward 1890s sensibilities, she writes. [C]ourts are signaling a new sensitivity to threats to privacy posed by evolving social and cultural conditions.

Gajda succumbs to the tendency to see even minor slights to press freedom as omens of onrushing dystopia.

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How the First Amendment applies to Jennifer Lawrence