Rarely does a hilariously inept use of social media by a small-time politician present an opportunity for a broad discussion of the constitutional protections of speech and the press. But, seeing as how just such a teachable moment occurred last week, it’d be a shame to let it pass by without comment.

I am, of course, referring to hapless Frederick County (Md.) Council Member Kirby Delauter, who — in a Facebook post — threatened to sue a local reporter for, and I quote: “an unauthorized use of my name and my reference in her article.”

For a bit of context, the article in question was one that tackled the spine-tinglingly exciting topic of assigned parking spaces for council members at Frederick County headquarters. Kirby Delauter’s name was mentioned exactly twice, very near the end of the 1,088-word tour de force.

In the aftermath of the little incident, it’s become painfully clear that there is some bad blood between Kirby Delauter, who is a Republican, and this newspaper, the Frederick News-Post, which Kirby Delauter accuses of having a “liberal agenda.”

Kirby Delauter doesn’t like this newspaper, and he didn’t like being mentioned in an article in which he was whining about not having a reserved parking space. In such a scenario, Kirby Delauter basically had two options, the first of which was to behave like a sensible adult and accept that the laws of the United States do — on occasion — allow other people to do things without first obtaining the approval of Kirby Delauter.

Instead, Kirby Delauter selected Door No. 2, and his ill-conceived public rant against the Frederick News-Post reporter and this thing called the First Amendment went viral, attracting coverage by hundreds of media outlets, trending on news-sharing sites like Digg and Reddit, and being gleefully excoriated by bloggers and newspaper website commentators across every corner of the Interwebs. (Kirby Delauter has since apologized for being “wrong and inappropriate.”)

Not lost in all that was the irony that Kirby Delauter’s misguided effort to protect his name and reputation resulted in his name being publicized and his reputation being sullied far, far, far more than it ever would have had he simply kept his mouth shut.

As such, it’s been described as a textbook example of the “Streisand effect,” a reference to singer Barbara Streisand’s 2003 attempt to sue a photographer for taking a photograph of her beachfront home while documenting California coastal erosion. The lawsuit, unsurprisingly, ended up drawing much more attention to the photo than it would have gotten otherwise.

Now, as hilarious (and, yes, somewhat disturbing) as it is that an East Coast politician apparently believes he can take legal action against a journalist for writing his name, referencing his title and accurately describing things he said and did in his capacity as an elected official, I do not believe this is an isolated incident.

That is to say, in my experience, there is a lot of confusion in the general public about what the First Amendment does — and does not — protect, and how those protections extend to the media.

Just to give one example, last summer I walked out to the intersection of Highway 214 and Boones Ferry Road, and took a few pictures from the sidewalk for a news story. On my way back to my pickup, a car pulled over beside me and asked what I was doing.

I explained, after which the driver and her passenger proceeded to tell me, in no uncertain terms, that I was not to publish any pictures of their car in the newspaper. Because I’m such a polite fellow, I decided to simply smile and go on my merry way, rather than saying what I wanted to say, which is that I don’t actually need their permission to take and publish a photograph of traffic on a public street.

It’s true that the freedom of the press’ most common tug of war in the legal tradition is with the right to privacy, but the right to privacy does not extend nearly as far as folks like Kirby Delauter and this secretive motorist seem to think.

The right to privacy protects you from unwelcome intrusion onto your private property or into affairs or information that a reasonable person would deem private. Believe it or not, the right to privacy does not cover what you say or do in public.

What’s more, it’s generally recognized by our legal system that public figures (such as a public official, celebrity, business leader or anyone else pervasively involved with public affairs) have — due to their power, influence and/or their willing decision to step into the spotlight of public scrutiny — have less of a right to privacy then the average citizen.

Things that would not normally be any of my business, like your political views or a past felony conviction, may indeed be my business if you choose to declare yourself a candidate for public office.

As surprising as it might be to Kirby Delauter, we journalists have quite a few protections under the Constitution, laws and legal precedence of the United States, all in the hopeful interest of creating a strong, free, open and democratic society.

However, what I often tell people is the coolest thing about our rights as media professionals is that they really aren’t “our” rights. They’re your rights, too. For the most part, I have absolutely no more access to the workings of our government agencies than any private citizen.

This has been repeatedly backed up by the U.S. Supreme Court, which has consistently refused to afford greater First Amendment protection to institutional news media over any other speaker.

So, whether you are a reporter for The New York Times or a teenager with a Facebook account, you enjoy the same access to information, and the same freedom to say the name “Kirby Delauter” as often as you like.

Cross-posted with the Woodburn Independent.

One thought on “Kirby Delauter’s not the only one who doesn’t understand the First Amendment

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