Sarah Palin posted a Facebook note Tuesday criticizing veteran journalist Joe McGinniss for moving into the house next door while researching and writing a book about her. Pro-Palin blogs have referred to McGinniss as a “stalker.” Could Palin get a restraining order against him?
No. Alaska criminal law defines a stalker as someone who “knowingly engages in a course of conduct that recklessly places another person in fear of death or physical injury.” Likewise, laws governing harassment generally require intent to cause emotional distress or fear for one’s safety. Moving in next door—even for the purpose of writing a harsh tell-all book—does not meet these standards. Nor would Palin likely win a lawsuit for invasion of privacy. State laws generally rest on the notion of a reasonable “expectation of privacy.” Peering into your neighbor’s yard from your porch might be creepy, but it’s not illegal, since reasonable people can’t expect their yards to be totally private.
Other than shield laws, which are designed to protect sources, journalists do not have any special legal privileges. For example, a reporter can’t trespass into someone’s house—or hack into their e-mail—and then claim he’s protected by the First Amendment. Courts do, however, take intent into account when deciding harassment cases. So, for example, it’s OK to pepper a politician with questions about her family for the purposes of newsgathering, but it’s not OK to demand the same information from random persons on the street simply to scare them.
Although it’s very rare for a public figure to successfully sue a journalist for invasion of privacy while gathering news, it does happen occasionally. Jacqueline Kennedy Onassis famously sued photographer Ron Galella in 1972 after he leapt out of a bush to take a picture of her with her son. A court prohibited him from coming within 25 feet of her. In 1996, a health care executive in Pennsylvania sued reporters after they used a zoom lens and a shotgun microphone to try to record conversations inside his family’s lakeside house from a boat anchored offshore. The court found that the reporters had engaged in “hounding, harassing, intimidating, and frightening conduct in complete and blatant disregard of the Wolfsons’ ‘right to be let alone’ to enjoy the tranquility and solitude of their home.” Relatedly, in 2009, California passed an “anti-paparazzi law” making it illegal for photographers to take unauthorized pictures of celebrities engaged in “personal or familial activity.”
Explainer thanks Adam Goldstein of the Student Press Law Center, David Heller of the Media Law Resource Center, and Elizabeth McNamara of Davis Wright Tremaine.
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