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Protecting privacy protects free expression

Jon L. Mills is a professor of law at the University of Florida, a former speaker of the Florida House of Representatives and former dean of the Levin College of Law at UF. His new book, Privacy in the New Media Age, focuses on legal issues related to the balance of personal dignity and First Amendment concerns in an era when the law struggles to keep up with new technology.

Mills has himself litigated high-profile cases involving privacy; his clients have included Dale Earnhardt's widow. He will discuss his book at the Times Festival of Reading on Oct. 24.

Colette Bancroft, Times book editor

An excerpt from the introduction to Privacy in the New Media Age:

The media and personal privacy are inherently in conflict. Although the degree of conflict has changed over time, the media have always thrived on publicizing exciting information, a pursuit that often reveals intimate details of the lives of people who may not want that information disclosed. The new media today are no different. While the media provide a critical function in our democratic society, they also commit intrusions into private endeavors for the sake of information gathering and news making. We want politicians, government and other public figures and organizations to be subject to criticism, and we enjoy the satire that often ensues. We enjoy news. But when the new media overstep during the news-making process, real people suffer real harm.

A decade ago, we were a different kind of society. Now, many of us work and live constantly wired to the Internet, seeking perpetual information updates. In current times that seems normal and even necessary. These new conveniences come at a price. The Internet, an easily accessible means for distributing information globally, is the primary engine behind the news media and its perils. In the span of an hour or less, a blogger can unfairly ruin your life. On July 19, 2010, Shirley Sherrod expected a normal day of work. However, that morning, the late Andrew Breitbart, a well-known conservative blogger, posted a deceptively edited video of a speech by Sherrod on his blog. Sherrod, an African American official in the U.S. Department of Agriculture, was shown describing how she discriminated against white farmers. Soon a video depicting her as a racist was all over the Internet. From there, the story picked up steam. It was posted on the Fox News Channel website, and then followed by the New York City CBS affiliate and the website of the Atlanta Journal Constitution. The mainstream media quickly joined in. CNN and the New York Times reported the story. Even the National Association for the Advancement of Colored People publicly condemned Sherrod. The Department of Agriculture quietly sought her resignation, and within 24 hours she was fired.

Twenty-four hours later, everyone started apologizing. In the span of a day, it became clear that Breitbart had deceptively edited the video to make Sherrod appear to be a racist. A full viewing showed that depiction to be false; in fact, the full video showed Sherrod discussing her joy in helping a white farmer.

This saga is a perfect example of how the news media have created a situation that breeds the wide dissemination of untruths. A complete lie can travel worldwide and savage an innocent individual in less than a day. Reporters and media are not inherently evil, nor do the vast majority intend to defame anyone. But the new media have created a world in which fast delivery of information seems to have become more important than checking facts and being accurate. Being the first to get a story now requires the story to be broken in a matter of minutes or seconds, not hours. The media are hypercompetitive, and the motivation to be first is strong. Since the new media now include instant Tweets, thousands of blog posts and real-time, on-location video from citizen observers, a significant amount of information that we consider news is inaccurate — sometimes blatantly false. In the Sherrod case, some purveyors of information were malicious or negligent, while others just followed the pack. The savaging of Sherrod's reputation is a perfect example of how new media may cause harmful intrusions. Even the traditional media — more cautious from years of fact checking — were lured into making mistakes in the name of speed.

Basic and fundamental values such as personal autonomy, freedom, liberty and the ability to be an individual are threatened by modern technology and new media. Sometimes the modern media are a vehicle for freedom, as in the recent examples of social revolutions broadcast by "iReporters" who were able to capture the scene in a more honest light than their government-controlled press would have been capable of doing. At the same time, some aspects of the new media can rend and tear lives and reputations apart with all the forethought of a rabid animal. In these attacks there is no conscience, no reason and no noble purpose. These mindless intrusions do not represent the historic role of the press and should not be the ultimate by-product of the principles of free press and free speech.

Privacy and dignity matter. And although the law has identified them as protected rights, they suffer from the same disadvantage as other abstract assets like love and happiness. These concepts are hard to value using traditional metrics. When the values of privacy and free speech are pitted against each other, speech often wins in the name of freedom of expression. The United States has a well-established history of fighting against the chilling effect on speech that occurs by the mere threat of punishment. Yet, the current state of the law does not explicitly protect against the same chilling effect on an individual's activities when his or her privacy is placed at risk. Particularly in the modern world, our society should have concerns about the chilling effect on a person's freedom of thought, freedom of choice and even freedom of speech that occurs by the stripping away of individual privacy rights. Because freedom and liberty are equally at risk when privacy is left unprotected, protecting personal privacy is part and parcel of protecting free expression.

Privacy in the New Media Age

By Jon L. Mills

University Press of Florida, 239 pages, $29.95

Meet the author

Jon L. Mills will be a featured author at the 23rd annual Tampa Bay Times Festival of Reading on Oct. 24 at the University of South Florida St. Petersburg. He will speak at 12:15 p.m. in the Naughton Pavilion of the Poynter Institute, 801 Third St. S, St. Petersburg. For festival information, go to

Protecting privacy protects free expression 10/08/15 [Last modified: Friday, October 9, 2015 5:48pm]
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