Courts often engage in the practice of balancing the interests of an individual’s right to privacy with the right of the press to disseminate what may be newsworthy information about that individual, particularly when publicizing information pertaining to a public official.  In the second season premiere of the ABC’s hit television show Scandal, a Rhode Island congressman by the name of Jacob Shaw was changing the batteries to his desktop clock in his office when he discovered a hidden motion-activated camera.  The video contained footage of the congressman engaging in sexual activity.  The video footage was obtained unlawfully by an unknown source and subsequently leaked to a right wing website that planned on releasing the sex tape on the internet.   An effort to get an injunction to stop the release of the sex tape failed even though the congressman believed that allowing the release of this video footage violated his right to privacy.  Thus the issue at bar is why a court would refuse to grant an injunction thus allowing a media entity to release unlawfully acquired video footage of a public official’s private sexual conduct in the privacy of his own office.

The United States Supreme Court noted in Bantam Books, Inc. v. Sullivan that any prior restraint on speech, such as an injunction, bears a heavy presumption against its constitutional validity.  Thus an individual seeking a court injunction enjoining speech carries a heavy burden of showing justification for imposition of such restraint in addition to a showing that the individual will suffer irreparable harm if the injunction is denied.  Although public officials have a diminished expectation of privacy as it relates to matters of public concern, it surely could be argued there is justification for a court to enjoin the release, by the media, of an unlawfully obtained sex tape recorded in a place where one has a reasonable expectation of privacy and that a public official’s sex life is not a matter of public concern.  Thus, congressman Shaw could bring a cause of action for intrusion, one of the four tort elements under a breach of the right of privacy, where he could show that he had a reasonable expectation of privacy that was breached in a manner that is highly offensive to any reasonable person.  The problem Shaw faces is that the media entity planning the release the video footage took no part in any breach of his privacy.

It has been well established by the United States Supreme Court that the press has freedom to expose and criticize information regarding public officials as it relates to matters of public concern.  Thus the other side of the argument is that the private lives of public officials are indeed matters of public concern if citizens are to entrust them in running their government.  The effect of the media entity not having any part in the illegal conduct as it pertains to its acquisition of the tape is illustrated in Bartnicki v. Vopper, where the United States Supreme Court noted its consistency in holding that where a media defendant “lawfully obtains truthful information about a matter of public significance then state officials may not constitutionally punish publication of the information, absent a need … of the highest order.”  In Bartnicki, conversations between a teacher’s union and local school board attempting to negotiate contracts was intercepted by an unknown source.  The recorded conversation was leaked to a radio host who aired the tape on his radio show.  Even though the conversation had been illegally intercepted, and the radio host had knowledge the tape was a product of illegal conduct prior to airing it, the Court held a stranger’s illegal conduct does not remove the First Amendment shield from speech about a matter of public concern.  Where a media entity has taken no part in the illegal conduct used to obtain the information it seeks to disseminate a court will not grant an injunction, particularly where the information pertains to a public official on matters of legitimate public concern.

Thus it appears that even though congressman Shaw’s sex life was a private matter to him, this fact was not enough of a justification for the court to restrain the right of the press to disseminate information it obtained through no illegal conduct on its part as it pertains to the congressman’s conduct due to his status as a public official, and the implications this status has on what parts of his life are now a matter of public concern.