10 Unprotected Categories: Defamation and other Torts

Privacy Torts

In addition to intentional infliction of emotional damage torts, the Court has also had to consider how the First Amendment intersects with lawsuits regarding the invasion of privacy. The desire to be left alone or be free from scrutiny often conflicts with the press’s desire to publish information, particularly for famous or powerful individuals who are of great interest to the public. As with defamation, many states have a number of torts—some dating back to common law—which allows someone to sue if outsiders intrude into their private life or publish private facts about them. The set of concerns these lawsuits raise in the context of the First Amendment is not that different from cases involving defamation or emotional distress, as lawsuits alleging a violation of privacy could be used as a sword against the press as well as a shield for the individual.

Supreme Court doctrine regarding the proper balance between privacy and the free flow of information is less clear than that involving defamation or emotional distress lawsuits, but the cases that have emerged tend to favor the media’s right to publish over the individual’s right to be left alone, particularly when the publication involves matters of public concern. One of the more influential such cases is Cox Broadcasting Corp. v. Cohn (1975), which centered on a Georgia law that created a civil cause of action if the media published the name of a rape victim without their consent. Importantly, the case centered on a Cox reporter’s use of public records in naming Cohn’s daughter, who had been raped and murdered. Cohn successfully used the Georgia statute to sue Cox Broadcasting for damages, and Cox appealed to the federal courts after losing their state appeal.

Cox Broadcasting Corp v. Cohn

420 US 469 (1975)

Facts: Cohn’s daughter, a minor, was raped and killed. A local news reporter used the indictment documents to discover the victim’s identity during court proceedings, which was later broadcast on the local news. Cohn sued the station under a Georgia privacy statute that prohibited the media from publicizing the identity of rape victims. The trial court found for Cohn, and the Georgia Supreme Court found that the statute did not fall afoul of the First Amendment. Cox appealed to the Supreme Court.

Question: May Georgia authorize lawsuits that award damages following the publication of true information recovered from public documents?

Vote: No, 8-1

For the Court: Justice White

Concurring opinion: Justice Powell

Concurring opinion: Justice Douglas

Dissenting opinion: Justice Rehnquist

JUSTICE WHITE delivered the opinion of the Court.

The issue before us in this case is whether, consistently with the First and Fourteenth Amendments, a State may extend a cause of action for damages for invasion of privacy caused by the publication of the name of a deceased rape victim which was publicly revealed in connection with the prosecution of the crime.

I

In August, 1971, appellee’s 17-year-old daughter was the victim of a rape, and did not survive the incident. Six youths were soon indicted for murder and rape. Although there was substantial press coverage of the crime and of subsequent developments, the identity of the victim was not disclosed pending trial…

In the course of the proceedings that day, appellant Wassell, a reporter covering the incident for his employer, learned the name of the victim from an examination of the indictments which were made available for his inspection in the courtroom. That the name of the victim appears in the indictments, and that the indictments were public records available for inspection are not disputed. Later that day, Wassell broadcast over the facilities of station WSB-TV, a television station owned by appellant Cox Broadcasting Corp., a news report concerning the court proceedings. The report named the victim of the crime and was repeated the following day.

In May, 1972, appellee brought an action for money damages against appellants… claiming that his right to privacy had been invaded by the television broadcasts giving the name of his deceased daughter. Appellants admitted the broadcasts, but claimed that they were privileged under both state law and the First and Fourteenth Amendments. The trial court [rejected] appellants’ constitutional claims…

Upon motion for rehearing, the Georgia court countered the argument that the victim’s name was a matter of public interest … the court felt compelled to determine the constitutionality of the statute, and sustained it as a “legitimate limitation on the right of freedom of expression contained in the First Amendment.” The court could discern “no public interest or general concern about the identity of the victim of such a crime as will make the right to disclose the identity of the victim rise to the level of First Amendment protection.”

We postponed decision as to our jurisdiction over this appeal to the hearing on the merits. We conclude that the Court has jurisdiction, and reverse the judgment of the Georgia Supreme Court.

II

In light of the prior cases, we conclude that we have jurisdiction to review the judgment of the Georgia Supreme Court…

III

Georgia stoutly defends both § 29901 and the State’s common law privacy action challenged here. Its claims are not without force, for powerful arguments can be made, and have been made, that however it may be ultimately defined, there is a zone of privacy surrounding every individual, a zone within which the State may protect him from intrusion by the press, with all its attendant publicity…

… we should recognize that we do not have at issue here an action for the invasion of privacy involving the appropriation of one’s name or photograph, a physical or other tangible intrusion into a private area, or a publication of otherwise private information that is also false, although perhaps not defamatory. The version of the privacy tort now before us — termed in Georgia “the tort of public disclosure” — is that in which the plaintiff claims the right to be free from unwanted publicity about his private affairs, which, although wholly true, would be offensive to a person of ordinary sensibilities. Because the gravamen of the claimed injury is the publication of information, whether true or not, the dissemination of which is embarrassing or otherwise painful to an individual, it is here that claims of privacy most directly confront the constitutional freedoms of speech and press. The face-off is apparent, and the appellants urge upon us the broad holding that the press may not be made criminally or civilly liable for publishing information that is neither false nor misleading but absolutely accurate, however damaging it may be to reputation or individual sensibilities…

… In this sphere of collision between claims of privacy and those of the free press, the interests on both sides are plainly rooted in the traditions and significant concerns of our society. Rather than address the broader question whether truthful publications may ever be subjected to civil or criminal liability consistently with the First and Fourteenth Amendments, or, to put it another way, whether the State may ever define and protect an area of privacy free from unwanted publicity in the press, it is appropriate to focus on the narrower interface between press and privacy that this case presents, namely, whether the State may impose sanctions on the accurate publication of the name of a rape victim obtained from public records — more specifically, from judicial records which are maintained in connection with a public prosecution and which themselves are open to public inspection. We are convinced that the State may not do so.

In the first place, in a society in which each individual has but limited time and resources with which to observe at first hand the operations of his government, he relies necessarily upon the press to bring to him in convenient form the facts of those operations. Great responsibility is accordingly placed upon the news media to report fully and accurately the proceedings of government, and official records and documents open to the public are the basic data of governmental operations. Without the information provided by the press, most of us and many of our representatives would be unable to vote intelligently or to register opinions on the administration of government generally. With respect to judicial proceedings, in particular, the function of the press serves to guarantee the fairness of trials and to bring to bear the beneficial effects of public scrutiny upon the administration of justice.

Appellee has claimed in this litigation that the efforts of the press have infringed his right to privacy by broadcasting to the world the fact that his daughter was a rape victim. The commission of crime, prosecutions resulting from it, and judicial proceedings arising from the prosecutions, however, are, without question, events of legitimate concern to the public, and consequently fall within the responsibility of the press to report the operations of government.

The special protected nature of accurate reports of judicial proceedings has repeatedly been recognized. This Court, in an opinion written by JUSTICE DOUGLAS, has said: “A trial is a public event.”

The developing law surrounding the tort of invasion of privacy recognizes a privilege in the press to report the events of judicial proceedings… “There is no liability when the defendant merely gives further publicity to information about the plaintiff which is already public. Thus, there is no liability for giving publicity to facts about the plaintiff’s life which are matters of public record…”

Thus, even the prevailing law of invasion of privacy generally recognizes that the interests in privacy fade when the information involved already appears on the public record. The conclusion is compelling when viewed in terms of the First and Fourteenth Amendments and in light of the public interest in a vigorous press… The publication of truthful information available on the public record contains none of the indicia of those limited categories of expression, such as “fighting” words, which “are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.”

By placing the information in the public domain on official court records, the State must be presumed to have concluded that the public interest was thereby being served. Public records, by their very nature, are of interest to those concerned with the administration of government, and a public benefit is performed by the reporting of the true contents of the records by the media. The freedom of the press to publish that information appears to us to be of critical importance to our type of government, in which the citizenry is the final judge of the proper conduct of public business. In preserving that form of government, the First and Fourteenth Amendments command nothing less than that the States may not impose sanctions on the publication of truthful information contained in official court records open to public inspection.

We are reluctant to embark on a course that would make public records generally available to the media but forbid their publication if offensive to the sensibilities of the supposed reasonable man. Such a rule would make it very difficult for the media to inform citizens about the public business and yet stay within the law. The rule would invite timidity and self-censorship and very likely lead to the suppression of many items that would otherwise be published and that should be made available to the public. At the very least, the First and Fourteenth Amendments will not allow exposing the press to liability for truthfully publishing information released to the public in official court records. If there are privacy interests to be protected in judicial proceedings, the States must respond by means which avoid public documentation or other exposure of private information. Their political institutions must weigh the interests in privacy with the interests of the public to know and of the press to publish. Once true information is disclosed in public court documents open to public inspection, the press cannot be sanctioned for publishing it. In this instance, as in others, reliance must rest upon the judgment of those who decide what to publish or broadcast.

Appellant Wassell based his televised report upon notes taken during the court proceedings, and obtained the name of the victim from the indictments handed to him at his request during a recess in the hearing. Appellee has not contended that the name was obtained in an improper fashion, or that it was not on an official court document open to public inspection. Under these circumstances, the protection of freedom of the press provided by the First and Fourteenth Amendments bars the State of Georgia from making appellants’ broadcast the basis of civil liability.

JUSTICE POWELL, concurring.

… In Gertz, we held that the First Amendment prohibits the States from imposing strict liability for media publication of allegedly false statements that are claimed to defame a private individual. While providing the required “breathing space” for First Amendment freedoms, the Gertz standard affords the States substantial latitude in compensating private individuals for wrongful injury to reputation…

In some instances, State actions that are denominated actions in defamation may, in fact, seek to protect citizens from injuries that are quite different from the wrongful damage to reputation flowing from false statements of fact. In such cases, the Constitution may permit a different balance to be struck. And, as today’s opinion properly recognizes, causes of action grounded in a State’s desire to protect privacy generally implicate interests that are distinct from those protected by defamation actions. But in cases in which the interests sought to be protected are similar to those considered in Gertz, I view that opinion as requiring that the truth be recognized as a complete defense.

JUSTICE DOUGLAS, concurring in the judgment.

 … There is no power on the part of government to suppress or penalize the publication of “news of the day.”

… By its now-familiar process of balancing and accommodating First Amendment freedoms with state or individual interests, the Court raises a specter of liability which must inevitably induce self-censorship by the media, thereby inhibiting the rough-and-tumble discourse which the First Amendment so clearly protects.

JUSTICE REHNQUIST, dissenting.

Because I am of the opinion that the decision which is the subject of this appeal is not a “final” judgment or decree … I would dismiss this appeal for want of jurisdiction.