Smith v. Daily Mail Publishing Co.

Rights granted to the press in the Constitution are unique as the only rights granted to an institution rather than the individual. The Court must balance press freedom from government intervention on one hand, with public interest in privacy and confidentiality on the other, while ensuring the press serves its social role responsibly. Though the Court ruled in Smith that publication of truthful information gathered legally is protected by the Constitution, truthful information could be restricted in situations involving substantial state interest to restrict certain publication. In effect, the states find almost insurmountable standards in suppressing truthful information no matter how lawfully obtained. In Florida Star v. B. J. F. (1989) the casual mistakes by police clerks led to the continued endangerment of a crime victim because the press published the leaked information. Yet the Court ruled in favor of the press when the victim sued the press for damages. In Globe Newspaper Co. v. Superior Court for the County of Norfolk (1982) the Court ruled a state law unconstitutional that excluded the press and public from trials concerning sex offenses against juvenile victims. The Court ruled the restriction did not adequately serve the compelling interest of the state in protecting minors from additional trauma since the effects of press coverage would vary from case to case. Many believed the Court provided the press excessive access and authority to publish sensitive information.

A series of Court findings led to the creation of a rigid "lawfully obtained" standard regarding press publication rights. The standard posed major ramifications in the electronic information era that mushroomed in the 1990s with advanced computer technologies and vast databases. A source for just about any type of information can be discovered lawfully by a diligent reporter, and the Court has liberally judged almost everything as "newsworthy."

Legal scholars argued that more appropriate standards would involve whether the person was a public figure or private individual and a more strict interpretation of newsworthiness. Using these criteria for assessing the appropriateness of news publication could better serve public and privacy protection interests. Opponents to the "legally obtained" standard assert that some rare situations have occurred in which illegally obtained information was legally published for the benefit of the public as decided in the New York Times Company v. United States decision. Advocates for the press in support of the "lawfully obtained" standard believe that truth is the ultimate defense for publishing information. Variables, such as judgements regarding the appropriateness of material, they believe are subject to the changing values and personal tastes of judges. By the late 1990s, several bills aimed at restricting the flow of intimate personal data were considered.