Scandal That's Fit to Print

By Thomas Griffith

Congressman Wayne Hays hasn't got much complaint about his private life becoming public, because he tried to mix the two. Since putting his girl friend on the public payroll raises questions about abuse of trust, a public interest exists in reporting these gossipy matters. Even if you concede that reporters as well as fellow Congressmen barely concealed their lip-smacking enjoyment over the embarrassment of an arrogant and sanctimonious man, no real issue of journalistic invasion of privacy arises. Recently a New York Times editor was asked whether in retrospect he regretted the news stories about Wilbur Mills and the Argentine stripteaser. His only regret, he replied, was not printing the story earlier: the public had a right to know about the drinking habits of the chairman of the most powerful committee in the House of Representatives.

The public's "right to know" is a phrase much bandied about these days, though it has a sketchy standing in a court of law. There is a greater legal right to know, for example, about the behavior of Government officials than about businessmen in general, though the conduct of one might just as surely affect the public's well-being or pocketbook as the other. A public official has had a hard time collecting damages for libel ever since the Supreme Court ruled in 1964 that the press could be excused for printing an erroneous story about an official so long as it was done without malice and after a reasonable attempt to ascertain the truth. Such freedom was necessary, the Supreme Court said, in order that public debate might be "uninhibited, robust and wide open." This reasoning was extended by the courts to cover reporting about any public "figure," but that is now under vigorous legal challenge.

Much of the liveliest reading in newspapers or magazines hardly deserves being defended as part of the public's right to know. Reader curiosity, a motive much less noble, is the real reason such stories appear. Because it depends on a subject's readiness to talk, a lot of the scandal that gets printed is not subject to court review. Those who live beneath publicity's strobe lights--athletes, politicians, entertainers and the like--naturally want it both ways; they want their privacy yet covet public attention. Preferring to be talked of rather than forgotten, fearing the displeasure of those who can mention or ignore them, they often make unhappy bargains with reporters or television interviewers. Their voluntary surrender of privacy--in a showboat, show-biz way--is often carried to exhibitionist extremes by freewheeling celebrities who casually acknowledge their informal sleeping arrangements as a way to celebrate their life-styles or show their scorn of bourgeois values. But even editors who turn a glazed eye on entertainers' infidelities (so what else is new?) believe that presidential or congressional liaisons, when flaunted, matter in an assessment of an officeholder's character. Publishing such news, they say, is both of interest and in the public interest.

As a young lawyer in the Victorian 1890s, Louis Brandeis wrote that "the press is overstepping in every direction the obvious bounds of propriety and of decency. Gossip is no longer the resource of the idle and of the vicious, but has become a trade, which is pursued with industry as well as effrontery." Many years later, as a Supreme Court Justice, Brandeis, in a famous dissent protesting the wiretapping of a bootlegger, sought to establish an individual's right to be let alone. This is a cause that has not gotten very far. Philip Kurland, the distinguished law professor at the University of Chicago, has concluded to his own dismay: "The constitutional right of privacy, in Brandeis' sense of a right to be let alone, will always be a minimal and never a major source in constitutional law." This is due, Kurland emphasized in a recent speech, "in no small part to the public commitment to voyeurism," a commitment made evident by what turns up in print.

Editors might hesitate to describe as voyeurism the public tastes they cater to, but they do constantly broaden their standards of what is fit to print. The direction is mostly downhill, or toward more freedom, depending on your point of view. After all, women--Congressmen's girl friends, Presidents' bedmates--now gleefully sign book contracts to describe conduct that once would have earned them a scarlet A as a branded adulteress.

One healthy form of editorial restraint seems to be emerging. This is to report scandal that a public figure such as Congressman Hays can be held responsible for, but not to record the misbehavior of those, like sons or daughters caught in drug arrests, whose only claim to special notice is their relationship to someone in the news. That distinction is not yet universal, but it should be.

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