| This piece was written in 1978. In the
intervening years, the law has evolved. Alice Marie Beard THE RIGHT TO
PRIVACY vs. THE FIRST AMENDMENT: INTRODUCTION In 1951, Mississippi sheriff Sale Martin thought the right to privacy meant that he had the right to commit assault and battery against a photographer who took a photograph of the sheriff against his wishes.1 The judge in the case did not agree with Martin's understanding of privacy. The judge's understanding was somewhat more conventional. Four areas of the right to privacy are recognized: (1) intrusion upon the plaintiff's seclusion or solitude, or into his private affairs; (2) public disclosure of embarrassing private facts about the plaintiff; (3) publicity that places the plaintiff in a false light in the public eye, and (4) appropriation, for the defendant's advantage, of the plaintiff's name or likeness.2 This paper will deal with the second right: public disclosure of embarrassing private facts. According to William Prosser, author of Law of Torts, the limits of the tort of public disclosure of private facts are fairly well defined. First, the disclosure of the private facts must be a public disclosure, not a private one. Second, the facts disclosed to the public must be private facts, not public. And third, the matter made public must be one that would be offensive and objectionable to a reasonable man of ordinary sensibilities.3 "The interest protected is that of reputation, with the same overtones of mental distress that are present in libel and slander. It is in reality an extension of defamation ... with the elimination of the defense of truth," according to Prosser.4 By 1974, the right of privacy was recognized in 39 states and the District of Columbia. After 1973, five states had privacy statutes: California, New York, Oklahoma, Utah, and Virginia. States with no privacy statute but with common law recognition of the right of privacy include Alabama, Alaska, Arizona, Arkansas, Colorado, Connecticut, Delaware, Florida, Georgia, Hawaii, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maryland, Michigan, Mississippi, Missouri, Montana, Nevada, New Hampshire, New Jersey, New Mexico, North Carolina, Ohio, Oregon, Pennsylvania, South Carolina, South Dakota, Tennessee, Texas, and West Virginia.5 In seven states, the right has not been addressed judicially or legislatively: Idaho, Maine, Massachusetts, Minnesota, North Dakota, Washington, and Wyoming. The status of the right in Vermont is also uncertain. In three states, the courts have specifically refused to recognize the right: Nebraska, Rhode Island, and Wisconsin.6 [NOTE: by 1978, Wisconsin recognized the right by statute.] For journalists, a major problem with this is that "(t)ruth, while a defense in an action for libel or slander, is not a defense to an action for invasion of the right of privacy. Nor is the absence of malice a defense."7 Or, as David B. Roe writes in a Yale Law Journal note, "The public disclosure tort ... presents a true conceptual novelty: the idea that mere publication of accurate data about a person might cause him legal injury."8 Journalism professor Don R. Pember sees the right of privacy conflicting "with many fundamental precepts of our legal, political and economic systems."9 As Roe adds, "The right of privacy quite obviously collides head-on with freedom of the press."10 The implications of the public disclosure aspect of the right of privacy should not be ignored by any journalist. This paper will deal with the origins of the right of privacy, the major views and theories concerning that right, and the major cases affecting the public disclosure tort. It will also consider briefly what the trend in future court decisions might be. INTRODUCTION OF
PUBLIC DISCLOSURE CONCEPT The grandfather of the public disclosure concept and the right of privacy was a December 1890 Harvard Law Review article. The authors, Louis D. Brandeis and Samuel D. Warren, were new law partners who had been first and second in the Harvard Law School class of 1877.11 Brandeis later became an associate justice of the United States Supreme Court, 1916-1939. The tort was not considered before the Brandeis/Warren article, but since that article most cases and law review articles dealing with the right of privacy and the public disclosure tort have cited the Brandeis/Warren article as seminal. According to Prosser, the article was the result of Warren's displeasure with the newspapers having had a "field day on the occasion of the wedding of a daughter."12 Pember disagrees, saying that the first of Warren's daughters to marry married 15 years after the article was published.13 Whatever the cause, the thrust of the Brandeis/Warren piece was that the press was overstepping its rights in printing gossip, even if true, about private people. The article contended that such disclosure of private facts should be viewed as an actionable tort. They argued that the right was arrived at through common law and through the natural extension of existing recognized torts.14 The article referred to what Judge Thomas M. Cooley called in 1888 the right "to be let alone."15 However, it should be noted that Brandeis and Warren were likely using Judge Cooley's phrase out of context. According to American Jurisprudence 2d, Cooley's statement, "The right to one's person may be said to be a right of complete immunity: to be let alone," appeared to be in connection with a discussion of liability for assault. The statement apparently relates to the right to be free from threats or attempts of physical violence.16 No matter. Brandeis and Warren set out to establish their own meaning for the right "to be let alone." Because the Brandeis/Warren piece is at the bottom of the right of privacy, the thread of their argument will be presented here: They argued that the right to life had come to mean the right to enjoy life -- which they saw as meaning the right to be let alone; that "(p)olitical, social, and economic changes entail the recognition of new rights, and the common law, in its eternal youth, grows to meet the demands of society."17 They reasoned that the action of battery grew out of assault, the law of nuisance developed, and the concept of reputation helped to develop of the law of slander and libel, and there developed the legal concept of man's family relations. Their argument looked at the growth of the idea of intangible property -- literature, art, goodwill, trade secrets, and trademarks -- from the legal concept of property rights. They offered the right of privacy as "the next step which must be taken for the protection of the person, and for securing to the individual...the right 'to be let alone.'"18 Brandeis and Warren saw the press of their day in less than a positive light. They spoke of "the evil of the invasion of privacy by the newspapers,"19 and added,
Brandeis and Warren said that, although the right of privacy bears a "superficial resemblance" to the law of slander and libel, the wrongs recognized by slander and libel are material, while the wrongs recognized by the right of privacy are spiritual: damage to reputation and to feelings. They pointed out that there is a good deal of work and effort involved in maintaining a good reputation, and conducting a noble life. They next contended that "(t)he principle which protects personal writings and any other productions of the intellect or of the emotions is the right to privacy, and the law has no new principle to formulate when it extends this protection to the personal appearance, sayings, acts, and to personal relation, domestic or otherwise....The application of an existing principle to a new state of facts is not judicial legislation."21 The Brandeis/Warren article then offered guidelines for the right to privacy:
They did, however, make a distinction between public officials and candidates for public office on the one hand, and private masses of people on the other.
Their third guideline, because of the advent of radio and television, cannot hold quite as true as it might have in 1890:
The remedies suggested by Brandeis and Warren were an action of tort for damages and, in a limited class of cases, an injuction, "remedies ... suggested by those administered in the law of defamation and in the law of literary and artistic property."26 Journalists may well rue the newspaper gossip of the late 1800s which prompted the Brandeis/Warren law review article. The impact of that article is felt even today. BEGINNINGS OF
RECOGNITION Other aspects of the right to privacy were recognized before that of public disclosure, but the first real public disclosure case, according to Prosser's Law of Torts,27 came in a 1927 Kentucky case.28 A man to whom money was owed posted a notice in his garage window that said, "Dr. W. R. Morgan owes an account here of $49.67. And if promises would pay an account, this account would have been settled long ago. This account will be advertised as long as it remains unpaid." The court ruled that such a notice was against the debtor's right to privacy. However, the case that has served as a major precedent in the area of public disclosure is Melvin v. Reid, 297 P. 91 (Cal. App. 1931).29 In 1918 the plaintiff, then known by her maiden name of Gabrielle Darley, was a prostitute and was tried for murder. She was acquitted. In 1919 she married Bernard Melvin. Thereafter, she was known as Gabrielle Darley Melvin, and "she abandoned her life of shame and became entirely rehabilitated, ... assumed a place in respectable society, and made many friends who were not aware of the incidents of her earlier life."30 In 1925 the defendants, without her knowledge or permission, made and released a film titled "The Red Kimono." The film was shown throughout California and other states. It was advertised as a true story, and the plaintiff's maiden name was used. The court took a circuitous route to award the decision to the plaintiff. The judges were unable to find any law in California providing for the right of privacy tort, and they ruled that the use of the facts from the trial could not be actionable because the facts appeared in the records of the plaintiff's trial for murder. However, the judges ruled that the actual, true name of the woman should not have been used, even though it also appeared in those same court records. The judges justified this ruling by citing the California Constitution that provided for life, liberty, and pursuing happiness. They argued: "The right to pursue and obtain happiness is guaranteed to all by the fundamental law of our state. This right by its very nature includes the right to live free from the unwarranted attack of others upon one's liberty, property, and reputation. Any person living a life of rectitude has that right to happiness which includes a freedom from unnecessary attacks on his character, social standing, or reputation."31 (Pember and Teeter call this California's "social value test."32) The court reasoned that reform and rehabilitation are objectives of the penal system in our society and that members of society should not work to tear down or shame a member of society who has rehabilitated himself or herself. Althought journalists may have looked on in disbelief at these early decisions, "(t)he first amendment guarantees of free speech and press never have been held absolute by the United States Supreme Court. For example, the Court in 1919 developed the 'clear and present danger' doctrine, which allowed Congress to prohibit speech that reached a certain level of incitement of unlawful activity. The Court also has maintained consistently that obscene publications are not protected by the first amendment. The primary reason for this interpretation is undoubtedly the concept of the first amendment as a safeguard for the public's right to know, a right not served by all types of speech in all situations."33 PROS AND CONS Views for the Tort: In Griswold v. Connecticut, 381 U.S. 479 (1965),34 Justice William O. Douglas considered existing constitutional doctrines that in some way dealt with a protection of the right of privacy. He included the First (free speech, press), Third (no quartering of soldier, Fourth (search and seizure), Fifth (self incrimination), Ninth (rights not enumerated), and Fourteenth (due process and equal protection) Amendments and reasoned that their sum resulted in a constitutional interest in privacy in general. (Griswold dealt with state interferrence in the private use of contraceptives; as such, it was not a media case, but the identification of a right of privacy is well worth noting here. Also worth noting is the fact that the plaintiffs' lawyer was Thomas I. Emerson, author of Toward a General Theory of the First Amendment.35) Judge Shirley Hufstedler reasoned in 1971 that a broad constitutional protection of privacy should be derived from the Fourth Amendment prohibition of unreasonable searches and seizures. Hufstedler argued that the Fourth Amendment (and the Fifth, somewhat) was written with the intent of preventing penetrations of individual privacy, and that broad interpretation of the words "searches and seizures" is needed to reach that goal of individual privacy.36 Like Griswald, Hufstedler's idea is not directly related to the tort of public disclosure, but it relates in the general sense that such an interpretation would give constitutional recognition to the right to privacy. Another constitutional interpretation finding the basis for the right to privacy in the First Amendment is offered by Roe in his 1973 Yale Law Journal note.37 Roe argues,
Views against
the Tort:
Another view in opposition to the public disclosure tort is found in Time, Inc. v. Hill, 385 U.S. 374 (1967).40 The case involved publication of nondefamatory falsehoods. Although it was not a public disclosure case, the decision can be interpreted as bearing on the public disclosure tort. The Hill family lived in suburban Pennsylvania in September 1952 when three escaped convicts held the family hostage in the family home for 19 hours. The family -- husband, wife, and five children -- was the focus of many timely news stories that appeared across the country. A book, The Desperate Hours, was published in 1953 about the "Hilliard" family which had similar experiences. The book was described as fictional and was turned into a play. In 1955 Life magazine, owned by Time, Inc., ran a story on the stage production. The story included photographs of the actors posed in the Hill family's former house. The Life article said the play showed true events in the Hill family's life. As did the play, the Life article portrayed the son as being roughed up and the daughter as being subjected to verbal sexual insult. However, the play was about the "Hilliard" family and did not advertise that it was attempting to portray the Hill family. The Hill family argued that the incidents depicted in the Life story and attributed to the Hill family were false. They said that they had been treated well while held as hostages, and they sued for invasion of privacy in a false light case. Judge Brennan wrote the opinion for the Court which ruled that the Hills had lost a substantial part of their right to privacy when they became participants, even though unwilling, in a newsworthy event. The Court ruled that the constitutional protection of speech and press prohibited the use of a New York statute that allowed recovery for false reports of matters of public interest in absence of proof that that the defendant published the report in reckless disregard for the truth. Justice Douglas reasoned in his concurrence, "A fictionalized treatment of the event is as much in the public domain as would be a watercolor of the assassination of a public official." The court allowed without recovery an untrue statement about a newsworthy person. The question is, can the Court do less for a true statement? Of course the Court might rule that some future suit involves an unnewsworthy event. Since Time is a false light case, the court could reason that it does not apply in a public instrusion case. TRENDS AND RULINGS IN
CASES Cases opposing or limiting
the public disclosure tort:
Berg v. Minneapolis Star, 79 F. Supp. 957 (Minn. 1948), involved the alleged wrongful use of a photograph taken of plaintiff and published in defendant's newspaper.43 Plaintiff had divorced his wife and was battling in court to retain custody of their children. The photograph in question was of the plaintiff in the court room during the custody battle. The court ruled that, despite his previous quiet life, the plaintiff became something of a "quasi-public figure" as a result of the custody suit. In addition, Berg is distinguished by the fact that the court had found that fraud had been committed against the plaintiff's wife and against the court in the divorce action.44 The court reasoned,
The court ruled that, if the news was privileged, the photograph was also privileged. Estill v. Hearst Pub., 186 F.2d 1017 (7th Cir., 1951), involved the republication of facts 15 years after the original publication.46 As a result of the death of a member of the John Dillinger gang, the Chicago Herald-American (owned by Hearst) printed a series of six features about the Dillinger "career" and the lives of the people whom Dillinger had influenced. Included in the series was a photo that had been printed 15 years earlier showing the plaintiff, then a prosecutor in Lake County, IN, in a friendly pose with Dillinger while Dillinger was in jail in Indiana. The court ruled that, since Estill was a public figure when the photo was taken, its printing 15 years later was not an invasion of privacy. The issue in Jenkins v. Dell Pub. Co., 251 F.2d 447 (3rd Cir. 1958)47, was whether an invasion of privacy tort could be found actionable on the basis of the quality of the publication. In 1953 a man was kicked to death. A detective magazine purchased a photo of the widow and the children. With the family's permission, a newspaper photographer had taken the photo soon after the death of the husband/father. After using the photo, the newspaper sold it to a photo distributor. The detective magazine published the photo and printed the facts of the killing, briefly but accurately. The widow and children sued, arguing that they had not known the photo would ultimately appear in a detective magazine when they allowed themselves to be photographed. The court ruled that a jury should not be permitted to find an otherwise privileged publication to be tortious because it appears in a magazine that was not designed for the intellectual. Hubbard v. Journal Pub. Co., 368 P.2d 147 (NM 1962)48, involved the publication of facts from juvenile court records that told of a boy sexually assaulting his younger sister. The victim/plaintiff was the boy's only sister and was therefore identified through the story. The facts were printed in a "daily record" column in the newspaper and were a verbatim copy of official records of the juvenile court. According to New Mexico state statute, the records were public and open to inspection. The court found the news privileged for publication. Another oft cited case is Afro-American Pub. Co. v. Jaffe, 366 F.2d 649 (7th Cir. 1962).49 The case began with a white store owner who decided he did not like the views of the Afro-American newspaper and chose to no longer sell the paper in his business. The paper published an article about the white store owner in a black neighborhood who chose to no longer sell the Afro, and Jaffe sued. The court reasoned,
Kapellas v. Kofman, 459 P.2d 912 (Cal. 1969)51, involved the invasion of the privacy of the relatives of a candidate for public office. Mother of plaintiffs, all minor children, was seeking election to the city council. Two of her six children had had troubles on the wrong side of the law; the local newspaper ran an editorial saying that Mrs. Kapellas should be minding her children rather than seeking office. The facts mentioned in the editorial were on the police blotter and thus a matter of public record. According to the court,
A major case in the area of public disclosure is Cox Broadcasting v. Cohn, 420 U.S. 469 (1975).53 A woman was raped and murdered. Although Georgia state statute prohibited the publication of a rape victim's name, a reporter discovered her name during the trial of the accused rapist-murderer. The dead woman's name was broadcast during news coverage of the trial. The dead woman's father sued for invasion of his privacy. Cox wanted the court to hold 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 the reputation or individual sensibilities."54 The court refused to reach such a broad decision and decided for Cox on narrower grounds, that court records cannot be excluded from the public:
The Court might also have considered awarding the case to Cox on another ground. According to American Law Reports (ALR),
Cases
supporting the public disclosure tort: Trammell v. Citizens News Co., 148 SW.2d 708 (KY 1941)57, involved the publication of a just debt (similar to Brents). Plaintiff owed money on a grocery account; he was told by creditor that a notice would be published in the local newspaper if the account was not paid. Such notice was published even after plaintiff asked editor not to publish the notice. The court held that, even though the plaintiff acknowledged the notice as accurate and even though the publisher of the paper was not interested in coercing payment of the debt, both the publisher and the creditor were liable to the plaintiff on the ground tha the publication was an invasion of the plaintiff's right to privacy. The court held that the contents of the notice were not matters of public interest, and that the publisher knew that publication of such facts would tend to expose the plaintiff to public contempt, ridicule, or disgrace. Barber v. Time, Inc., 159 SW.2d 291 (Mo. 1942)58, involved the publishing of medical facts about a woman and the publishing of a photo that had been taken against her wishes as she lay sick in a hospital bed. The woman suffered from a rare condition that forced her to eat constantly, while all the time losing weight. According to the court,
In Cason v. Baskin, 30 So. 2d 635 (Fla. 1944)61, an established author published an autobiography (Cross Creek). The book included stories about people who lived in the area where she had grown up. Plaintiff, who did not like being written about in a book, sued. The defense argued that the book had been well received, that it was a work of art, and that the author was so well known that the public would want to read about the people who had influenced her writings. (Defendant also authored The Yearling.) The court held that
In Daily Times Democrat v. Graham, 162 So.2d 474 (Ala. 1964), the court held that just because a woman was in a public place when, because of no fault of her own, a gust of wind blew her skirt into the air and exposed her from the waist down with only her panties to cover her, a newspaper was not justified in printing the photo using the excuse that she was in a public place. The woman won the case.62 Another oft cited California Supreme Court case is Briscoe v. Reader's Digest Assoc., 483 P.2d 34 (Cal. 1971).63 In 1956 the plaintiff and another man hijacked a truck in Kentucky. Briscoe was arrested, charged, and found guilty of a crime. He then reformed and was never again arrested. In 1967, the Reader's Digest magazine published an article about hijacking and briefly mentioned Briscoe's name. Briscoe sued, contending that the new revelation of the old fact harmed him since his 11-year-old daughter had not known of the incident and many of his newly-made friends had no idea of his past. The court reasoned that although there was nothing wrong with printing the facts of a crime of long ago, there was a problem with printing the name of the reformed ex-criminal along with those facts:
This case decided only that in California state courts a common law cause of action for invasion of privacy was recognized for the publication of the circumstances of an 11-year-old criminal conviction; the court ruled that the case could go to the jury over the defense motion to dismiss. However, Briscoe ultimately lost. The case was removed from the California state court system to the United States federal court system. In a non-published opinion, the U.S. District Court for the Central District of California "granted a motion for summary judgment on behalf of the magazine."65 In Virgil v. Time, Inc., 527 F.2d 1122 (Cal. 1975)66, a California body surfer sued because of an article that appeared in Sports Illustrated magazine. Virgil initially consented to the interview, but he withdrew consent concerning some of what he had said after he learned what would be in the article. Virgil was not a public figure; he was a body surfer selected by the reporter as being representative of the sport. The court asked,
The court ordered that the case be retried under the guidelines offered in Virgil. However, when the case was retried,68 the lower court held that, based on the definitions of Virgil, the facts presented in the publication were not offensive to a degree of morbidity or sensationalism as would have precluded as unnewsworthy their publication in defendant's magazine. Nonetheless, the guidelines in Virgil stand, and Virgil has been cited in another case, Deaton v. Delta Democrat Pub. Co., 326 So.2d 471 (Miss. 1976).69 The newspaper published a story about special classes for retarded children in public schools. The story named the four Deaton children, showed photographs of them, and described them as "retarded" and "trainable mentally retarded." Deaton sued for his children, lost, and appealed. The court sent the case back for a new trial citing Virgil, arguing,
CONCLUSIONS As this time, one cannot speak of a trend in the public disclosure tort. Court decisions have been going both ways since the first decisions that recognized the tort. Pember and Teeter, of course, would like to weaken the tort and suggest that publication of private information "could become an element, perhaps, of the even newer tort of intentional infliction of mental distress."70 However, Pember and Teeter acknowledge that this is not likely to happen. The Supreme Court's only on-point rule has come from Cox, in which the Court ruled that "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." However, the fact that the Court refused to rule 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 the reputation or individual sensibilities," suggests that the Court could opt to slice and dice the word "truthfully." What is one person's "truth" may be something other than another person's "truth." If the Court speaks to this issue again, one option would be to accept Alexander Meiklejohn's two-tier theory of the First Amendment and hold that the press may say anything about the government, but that there may be limitations in other areas -- such as public disclosure -- under situations that warranted limitations. Allusions are made to this in a Roe's 1973 Yale Law Journal note (82 Yale L.J. 1462 (1973) at p. 1466). Another possibility would be an application of Thomas Emerson's theory in which public disclosure might be viewed as being actionable in cases when the court ruled that the disclosure was clearly offensive. A fear is that we might be returning to the concept of "the greater the truth, the greater the harm," the policy in practice for expressions about the government before the likes of John Peter Zenger. In light of the cases that have been decided, however, it is more likely that the courts will continue cautiously avoiding attempts at becoming editors and will award damaged only in the most offensive of cases dealing with strictly private persons. Almost 90 years after the publication of the Brandeis/Warren law review article, the piece is still noted and is gaining increasing acceptance. It appears the concept will remain and will be used selectively in deserving cases. The problem for a journalist, however, is one of a chilling effect: How can a journalist know which story will bring on a law suit? ________________________________________________ NOTES: 1. Martin v. Dorton, 50 So.2d 391 (Miss. 1951). 2. William L. Prosser, "Privacy," 48 Cal. L.R. 383 (1960), at 389. 3. William Prosser, Law of Torts, West Publishing Co., St. Paul, Minn., 4th ed., 1971; pp.810-811. 4. Prosser, 48 Cal. L.R. 383, at 398. 5. Don R. Pember and Dwight L. Teeter, Jr., "Privacy and the Press Since Time, Inc. v. Hill," 50 Wash. L.R. 57 (1974), at 57-58. 6. Pember, Teeter, 50 Wash. L.R. 57 7. Am. Jur., Privacy (1st ed., Sec. 13). 8. David B. Roe, "Privacy in the First Amendment," 82 Yale L.J. 1462 (1973), at 1473. 9. Pember & Teeter, at 58. 10. Pember & Teeter, at 59. 11. Prosser, 48 Cal. L.R. 383, at 383-384. 12. Id., at 383. 13. Pember & Teeter, at 69. 14. Louis D. Brandeis and Samuel D. Warren, "The Right to Privacy," 4 Harv. L.R. 193 (1890). 15. Cooley on Torts (1888), 2d ed., p. 29. 16. 62 Am. Jur. 2d, Privacy (Sec. 2, p. 678). 17. Brandeis/Warren, at 193. 18. Id., at 195. 19. Id., at 195. 20. Id., at 196. 21. Id., at 213. 22. Id., at 214. 23. Id., at 216. 24. Id., at 216. 25. Id., at 218. 26. Id., at 219. 27. Prosser, Law of Torts, p. 809. 28. Brents v. Morgan, 299 S.W. 867 (Ky. 1927). 29. Melvin v. Reid, 297 P. 91 (Cal. 1931). 30. Melvin at 91. 31. Melvin at 93. 32. Pember & Teeter, 50 Wash. L.R. 57, at 78. 33. William J. Rees, "Invasion of Privacy," 29 Vand. L.R. 870 (1976). 34. "Privacy in the First Amendment," 82 Yale L.J. 1462 (1973), at 1475. 35. 82 Yale L.J. 1462, at 1476. 36. 82 Yale L.J. 1462, at 1477, citing Judge Shirley Hufstedler, The Directions and Misdirections of a Constitutional Right of Privacy, 26 Record of N.Y.C.B.A. 546, 559, n. 59 (1971). 37. 82 Yale L.J. 1462. 38. Id., at 1464, 1466, 1468. 39. Pember & Teeter, 50 Wash. L.R. 57, at 59, 81, 91. 40. Time, Inc. v. Hill, 385 U.S. 374 (N.Y. 1967). 41. Sidis v. F-R Pub. Corp., 113 F.2d 806 (2d Cir. 1940). 42. Sidis, at 809. 43. Berg v. Minneapolis Star and Tribune Co., 79 F.Supp. 957 (Minn. 1948). 44. Id., at 959. 45. Id., at 959. 46. Estill v. Hearst Pub., 186 F.2d 1017 (7th Cir. 1951). 47. Jenkins v. Dell Pub. Co., Inc., 251 F.2d 447 (Penn. 1958). 48. Hubbard v. Journal Publishing Co., 368 P.2d 147 (N.M. 1962). 49. Afro-American Pub. Co. v. Jaffe, 366 F.2d 649 (D.C. Circuit 1966). 50. Id., at 654. 51. Kapellas v. Kofman, 459 P.2d 912 (Cal. 1969). 52. Id., at 923. 53. Cox Broadcasting Corp. v. Cohn, 420 U.S. 469 (Ga. 1975). 54. Id., at 489. 55.Cox Broadcasting Corp. v. Cohn, 95 S.Ct. 1029, at 1032. 56. 18 ALR 3rd, Sec. 2, Sec. 3, pp. 875, 876. 57. Trammell v. Citizens News Co., 148 S.W. 2d 708 (Ky. 1941). 58. Barber v. Time, Inc., 348 Mo 1199 (1942). 59. Id., at 1206, 1207. 60. Cason v. Baskin, 30 So.2d 635 (Fla 1947). 61. Id., at 638. 62. Daily Times Democrat v. Grahm, 162 So.2d 474 (Ala. 1964). 63. Briscoe v. Reader's Digest Assoc., 483 P.2d 34 (Cal. 1971). 64. Id., at 41. 65. Harold L. Nelson and Dwight L. Teeter, Jr., Law of Mass Communications, Foundation Press, Inc., Mineola, N.Y., 2d edition, 1973; p. 199. 66. Virgil v. Time, Inc., 527 F.2d 1122 (Cal. 1975). 67. Id., at 1128. 68. Virgil v. Sports Illustrated, 424 F.Supp. 1286 (S.D. Cal. 1976). 69. Deaton v. Delta Democrat Pub. Co., 326 So.2d 471 (Miss. 1976). 70. Pember & Teeter, 50 Wash. L.R. 57, at 91. Subsequent to this piece: James R. Beattie, Jr., Note, Privacy in the First Amendment: Private Facts and the Zone of Deliberation, 44 Vand. L. Rev. 899, 901 (1991). Clemens P. Work, Whose Privacy?, 55 Mont. L. Rev. 209 (1994). Florida Star v. B.J.F., 491 U.S. 524 (1989). [at 541 ("We do not hold that truthful publication is automatically constitutionally protected, or that there is no zone of personal privacy within which the State may protect the individual from intrusion by the press."). Justice White posited that if sexual assault victimization is not within the zone of personal privacy referred to in Florida Star, he would be hard-pressed to identify what was within the zone.] State v. Globe Communications Corp., 622 So. 2d 1066 (Fla. 4th DCA 1993). State v. Globe Communications Corp., 648 So. 2d 110 (Fla. 1994). Smith v. Daily Mail Publishing Co., 443 U.S. 97, 103 (1979). |