Protecting Investigative Journalism
![handle is hein.journals/gwlr67 and id is 1149 raw text is: Protecting Investigative Journalism
C. Thomas Dienes*
The early part of Professor Smolla's paper is somewhat depressing. It is
not the paper itself-it is excellent, interesting and thoughtful. It is the
message that he delivers. Professor Smolla vividly and accurately describes
both the vast assault on privacy in modern society and a plethora of proposed
responses to the problem.' We are experiencing what the futurist Alvin Tof-
fler calls the Third Wave, the movement from an industrial to an informa-
tion society.2 In such times, as more information about us becomes public,
societal concerns over personal privacy inevitably intensify. A natural re-
sponse is to enact new laws. But, as Professor Smolla recognizes, the prob-
lem with new legislation is that it is often an ill-conceived overreaction,
threatening other interests and values of equal or greater dimension.
The phenomenon brings to mind a comment of Justice Black, dissenting
in Griswold v. Connecticut3 I like my privacy as well as the next one, but I
am nevertheless compelled to admit that government has a right to invade it
unless prohibited by some specific constitutional provision.'4 While I do not
agree with Justice Black's rejection of constitutional privacy, I do like my
nonconstitutional right of privacy. It is an important, vital common law right
protecting individual dignity and personal autonomy. But informational pri-
vacy is not so sacred or preeminent that I would willingly sacrifice basic First
Amendment values of freedom of the press.
Yet Professor Smolla is almost certainly correct that there is a threat of a
cultural backlash such that our future laws and public policies on these
issues inevitably will be influenced by broader cultural movements regarding
privacy.5 Thus, as a practical matter, if the press has no respect for soci-
ety's interests in privacy[, it] may someday find itself in a society with no
respect for the press.'6 At the very least, therefore, the press would be wise
to think twice about pushing the envelope when it comes to newsgathering
* Patricia Roberts Harris Research Professor of Law, George Washington University Law
School; B.S., Loyola University, Chicago; J.D., Northwestern University; Ph.D., Northwestern
University. The author was General Counsel at U.S. News and World Report and continues to
serve as Legal Consultant to U.S. News, The Atlantic Monthly, and Fast Company Magazine.
I wish to thank Lee Levine of Levine, Sullivan & Koch, who assisted in the development of
this paper, and Professor Jerome Barron of The George Washington University Law School for
his usual helpful comments. I also wish to express my thanks to Jennifer A. Karmonick, a third-
year student at The George Washington University Law School, for her valuable research
assistance.
1 See Rodney A. Smolla, Privacy and the First Amendment Right to Gather News, 67 GEo.
WASH. L. REv. 1097, 1098-106 (1999).
2 See ALvIN TOFFLER, THm THIRD WAVE (1980).
3 381 U.S. 479 (1965) (recognizing a fundamental constitutional right of privacy extending
to the use of contraceptives by married persons).
4 Id. at 510 (Black, J., dissenting).
5 Smolla, supra note 1, at 1097, 1100.
6 Id. at 1138.
June/August 1999 Vol. 67 No. 516
1139](ViewImageLocal?handle=hein.journals/gwlr67&div=55&collection=&method=preview&ext=.png&size=3)
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Protecting Investigative Journalism
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