Spring break catastrophe

Know your constitutional rights

By: Alexander Baron

Posted: 11/18/08

Meet Tessa Steckle, an upperclassman business major attending a Midwestern university. After a second semester midterm week full of sleepless nights fueled by energy drinks, iced coffees and a desire not to fail, she is ready for the spring break trip of a lifetime in Panama City.

Tessa quickly realizes that other than some sunny naps on the beach and bouts of unconsciousness starting after 6 a.m., she will have to catch up on sleep when she goes back home. Hey, it's spring break and she has always wanted to see if the MTV parties are as crazy as they look.

Near the end of the trip, she makes it to the biggest beach party she has seen. A few hours later, in an act fueled by an uninhibited atmosphere, insomnia and plenty of drinks, Miss Steckle lets the crowd get a good view of the shadow casters under her bikini top. Little did she know that a member of the crowd was a photographer from Maxim.

A few months later, her brother jokingly asks if it was her profile that he saw in the magazine. Shortly after, Tessa receives a letter stating that due to recent discoveries regarding her character, Big Money Inc. is revoking their job offer.

Tessa finds the issue her brother mentioned, and sees that her picture was published in an article titled "10 Reasons to Love Spring Break." She sues under invasion of privacy for intrusion as well as appropriation. How might the court rule?

It is important to first consider the origins of laws regarding privacy. In the late 1800s, two lawyers introduced the first official suggestion that laws protecting privacy should be created in America. Before this time, practically everyone, including the founding fathers, took privacy for granted due to the rural nature of the country and the technology of the time. The Constitution does not contain the word 'privacy.'

Since the lawyers made their suggestion, the Supreme Court has declared that privacy rights are inherent in the Bill of Rights. The First Amendment allows freedom of association, Third prevents the government's placement of soldiers in private homes, Fourth restricts unwarranted searches and the Fifth protects against self-incrimination.

However, the courts put a great deal of emphasis on freedom of speech and press. Because protecting privacy can mean restricting these freedoms, some requirements must be met to earn this indirect constitutional protection.

Back to Tessa's case. Intrusion lawsuits protect people from physical or intangible (such as long-range cameras or hidden recording devices) intrusion upon their seclusion or solitude. This aspect of law deals with how information is collected.

The main point for the plaintiff Steckle to prove is that she was in a place with an expectation of privacy when the photograph was taken. The judge would most likely rule that she expected no privacy because she was at a public place with many people who all had the same right to be there. The cameraman was simply a member of the public with the same view as anyone else, preserving the moment for others not lucky enough to be there at the time.

Tessa has a better chance at winning the appropriation lawsuit. This type of suit protects people from having their name or image used by someone else for trade purposes, advertising or commercial gain without permission.

The reasoning behind this type of law is that the overall look of an individual is unique to that person and can be considered their property. Another person should not be able to utilize this property for their own gain without consent.

Cases similar to Tessa's have been decided, such as when a teenage girl posed for the generally wholesome Young and Modern magazine. Her pictures were later published with a column titled "I got trashed and had sex with three guys." She lost her appropriation suit because the judge said the article was newsworthy and the photos were not advertising the magazine but were used simply to illustrate the article.

This rationale could apply to Tessa's case. The article was interesting to anyone who has a spring break. The pictures were contained only in the article and related directly to its content. They were neither used to snag people's attention and make them want to buy the magazine, nor were they suggesting that she endorses the magazine. On these grounds Tessa would not win her case. Her only hope would rest in the fact that the girl in the previous case initiated the photo session, while Tessa did not.

Please do not let this hypothetical situation discourage you from having fun on your spring break or any other time. Hopefully, it will make you more aware of when you should expect privacy. What you do in your home is almost always considered private, some of what you do at work or in buildings that require appointments is private, but almost nothing you do in places like restaurants, the street or any place for the public has any degree of privacy protection.

Parts of the Constitution could not exist without a fundamental idea of privacy, but other parts of it give people the right to share things about you. A general rule to consider is "if anyone can experience it, they can share the experience with anyone."