Opinion
Docket No. 25162.
Filed: August 2, 2000. Rehearing denied October 2, 2000.
Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada County. Hon. D. Duff McKee, District Judge.
Summary judgment dismissing action for invasion of privacy and infliction of emotional distress, affirmed.
John L. Runft, Boise, for appellant.
Givens Pursley, LLC, Boise, for respondent. Debora K. Kristensen argued.
In 1995, The Idaho Statesman, a daily newspaper published in Boise, printed an article that included a photograph of a nearly forty-year-old handwritten statement given to police by an individual who was then under investigation. The statement named plaintiff Fred Uranga as a party to homosexual activity. Uranga sued the newspaper's publisher, Federated Publications, Inc. (hereinafter referred to as the Statesman), claiming that the publication of these allegations about him constituted a tortious invasion of privacy and intentional or reckless infliction of emotional distress. The district court granted summary judgment to the Statesman after determining that the First Amendment of the United States Constitution protected the newspaper from liability. Uranga appeals from that decision.
I. BACKGROUND
In late 1955, three men were arrested by Boise police for participating in sexual acts involving boys. These arrests began the so-called "Boys of Boise" investigation, during which 1,500 witness interrogations and sixteen arrests took place. One of the men questioned by police was Melvin Dir. During his questioning, Dir wrote a statement implicating F.J., the teenage son of a Boise city councilman, in alleged homosexual acts. The Dir statement described a sexual encounter between Dir and F.J. and a subsequent conversation in which F.J. allegedly mentioned an affair that he had with his cousin, Fred Uranga. Dir ultimately was convicted of the infamous crime against nature. However, neither Uranga nor F.J. was ever charged with any crime in connection with the Boys of Boise investigation.
The term "Boys of Boise" derives from the title to a book about the events written by John Gerassi and published in 1966.
Nearly forty years later, the Statesman published a multi-page article about the Boys of Boise episode and the destructive impact that the anti-homosexual sentiment had had on F.J.'s life. The article was published during the course of public debate on a proposed ballot initiative that would have limited the rights of homosexuals in Idaho. The article described the Boys of Boise investigation as "one of the nation's most infamous homosexual witch hunts" and was presented as a reminder of "the damage done to innocent people in a climate of mob rule and fear." According to the Statesman, the article was published as "a cautionary tale."
F.J. was expelled from West Point Academy after the allegations surfaced. Several years later, he committed suicide.
In doing research for the article, a reporter found the original, handwritten Dir statement in a court file related to Dir's prosecution. The Statesman article itself did not refer to Uranga by name. Nonetheless, the story included a photograph of Dir's handwritten statement in which Dir's allegation about Uranga could be read.
According to the Statesman, this was not unintentional or an oversight; newspaper staff printed the photograph of the Dir statement with awareness that Uranga's name would be decipherable.
Two weeks after publication of the article, Uranga wrote a letter to the Statesman denying the allegations of the Dir statement and requesting that the newspaper correct the alleged misstatement. The Statesman declined to do so but instead offered to publish Uranga's comments in a "Speaker's Corner" feature on the editorial page. In the alternative, the Statesman told Uranga that it would publish an explanation regarding the Dir statement along with a statement that the newspaper did not have an opinion as to the veracity of the Dir allegations. Uranga did not accept either offer.
Uranga subsequently filed a complaint alleging that through publication of the photo of the Dir statement, the newspaper had invaded his privacy and intentionally or recklessly inflicted emotional distress. The Statesman moved for summary judgment on the ground that it was sheltered from liability by the First Amendment's guarantee of freedom of the press. The district court granted the Statesman's motion, relying upon a United States Supreme Court decision, Cox Broadcasting Corp. v. Cohn, 420 U.S. 469 (1975), which applied a First Amendment privilege to the publication of information derived from court documents.
In this appeal, Uranga contends that the district court made an overbroad application of Cox Broadcasting and that the publication of which he complains was not protected by the First Amendment because the Dir statement was not utilized in an official proceeding, was not true, and through the passage of time had become unnewsworthy.
II. ANALYSIS
In an appeal from a summary judgment, we apply the same standard of review utilized by the district judge when ruling on the motion. Friel v. Boise City Hous. Auth., 126 Idaho 484, 485, 887 P.2d 29, 30 (1994). Summary judgment may be entered only when "the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Idaho Rule of Civil Procedure 56(c). In this case, it is not contended that there are material factual issues; the sole issue presented by the motion is one of law. Therefore, we exercise free review. Friel, supra; Farm Credit Bank of Spokane v. Stevenson, 125 Idaho 270, 272, 869 P.2d 1365, 1367 (1994).
We consider first Uranga's claim of invasion of privacy. Idaho has long recognized a cause of action in tort for invasion of privacy, which encompasses four categories:
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 which places the plaintiff in a false light in the public eye.
4. Appropriation, for the defendant's advantage, of the plaintiff's name and likeness.
Hoskins v. Howard, 132 Idaho 311, 316, 971 P.2d 1135, 1140 (1998); Baker v. Burlington N., Inc., 99 Idaho 688, 691, 587 P.2d 829, 832 (1978); Peterson v. Idaho First Nat'l Bank, 83 Idaho 578, 367 P.2d 284 (1961). Uranga has asserted claims under the first three of these categories. The issue presented by the Statesman's summary judgment motion was not whether Uranga could sustain his burden to prove the elements of one or more of these common law causes of action but whether, even assuming that he could sustain his burden of proof under state law, the Statesman is nonetheless immune from liability by operation of the First Amendment, which is applied to the states through the Fourteenth Amendment.
In Cox Broadcasting, the United States Supreme Court held that First Amendment rights were implicated in a privacy action brought by the family of a deceased rape victim against a television station that had broadcast the victim's name. The Supreme Court weighed the privacy interests of the plaintiffs against the public interest in freedom of the press, particularly focusing on the media's role in subjecting the judicial process to public scrutiny. 420 U.S. at 491-93. In balancing these interests, the Supreme Court stated:
. . . The commission of crime, prosecutions resulting from it, and judicial proceedings arising from the prosecutions . . . 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.
. . . .
. . . [E]ven 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.
. . . .
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.
Id. at 492-95. Accordingly, the Court held that the First and Fourteenth Amendments barred the imposition of liability upon the television station for publishing information that was found in court records.
The Idaho Supreme Court subsequently applied Cox Broadcasting in Baker, supra, to preclude an action for invasion of privacy that was based upon the disclosure of information which could be found in public records. In Baker, the plaintiff alleged that his right to privacy was violated by his employer's disclosure of his previous criminal record. The defendant railroad discharged Baker after it discovered that he had a criminal record, contrary to the information he had provided on his employment application. The letter of discharge was forwarded to a number of individuals, including management personnel at the railroad, the Idaho Department of Employment, and Baker's union. The Idaho Supreme Court held that the disclosure was not actionable as an invasion of privacy because the publication "was merely a recitation of a public record of Baker's recent criminal activity." 99 Idaho at 692, 587 P.2d at 833.
Uranga argues that the Dir statement published by the Statesman does not fall within the reach of the Cox Broadcasting and Baker rules for a number of reasons. First, he contends that Dir's handwritten statement was never offered or accepted as evidence in a judicial proceeding or otherwise used for an official purpose, and hence it does not qualify as a "public" document.
Uranga's position cannot be sustained. Melvin Dir was the subject of a criminal investigation at the time the statement was given to police, and the statement remained in a criminal case file, stored in the court clerk's office. Although the record before this Court does not reveal why or how the unsworn statement became part of the court file, it is undisputed that it was in the file and that the file was available for public inspection. As disclosed in the above quote from Cox Broadcasting, the United States Supreme Court held that the First Amendment protection extends to the publication of information already available to the public through court records. The rule suggested by Uranga — requiring the press to determine whether a particular document in a court file has been introduced into evidence or otherwise "used" in an official proceeding before publishing a story about it — would impose an arduous burden on the press that would be inimical to the public interest. Such a 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." Cox Broadcasting, 420 U.S. at 496.
Instead of placing the burden and risk upon the press to make such distinctions, Cox Broadcasting held that the burden lies upon the government to properly maintain court files, allowing only appropriate documents to be preserved there for public viewing. "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." Cox Broadcasting, 420 U.S. at 496. Hence, it was the Dir statement's presence in a court file, not the extent of its use in judicial proceedings, that cloaked its later publication with the constitutional privilege.
This was reiterated in Florida Star v. B.J.F., 491 U.S. 524, 534 (1989), where the Court commented:
To the extent sensitive information is in the government's custody, it has . . . power to forestall or mitigate the injury caused by its release. The government may classify certain information, establish and enforce procedures ensuring its redacted release, and extend a damages remedy against the government or its officials where the government's mishandling of sensitive information leads to its dissemination. Where information is entrusted to the government, a less drastic means than punishing truthful publication almost always exists for guarding against the dissemination of private facts.
Id. at 534.
Uranga next argues that the First Amendment privilege attaches only to the publication of truthful information contained in a court document. He argues that because the information about him in the Dir statement was false, the Statesman cannot avoid liability by invoking Cox Broadcasting. He directs us to language such as the following from that opinion: "[T]he 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," 420 U.S. at 495 (emphasis added), and "Once true information is disclosed in public court documents open to public inspection, the press cannot be sanctioned for publishing it." Id. at 496 (emphasis added).
We are able to find other language in the Cox Broadcasting opinion which, contrary to Uranga's argument, seems to focus upon the accuracy of the report rather than the truthfulness of the court file's contents, e.g., "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." Id. at 496. Nonetheless, we think it clear that the Supreme Court in Cox Broadcasting did not intend to address whether the First Amendment shield extended to accurate reports of untruthful information contained in public records. The Court emphasized that its opinion was narrow in scope, limited to the issue raised by the particular facts before it, which involved the accurate publication of true information derived from judicial records open to the public. Id. at 491. The United States Supreme Court's more recent decisions in this arena, Florida Star v. B.J.F., 491 U.S. 524 (1989); Smith v. Daily Mail Publ'g Co., 443 U.S. 97 (1979); Oklahoma Publ'g Co. v. Oklahoma County Dist. Court, 430 U.S. 308 (1977), also involved the publication of truthful information obtained from public sources and therefore do not directly resolve the issue raised by Uranga.
Subsequent Supreme Court decisions have not been consistent in their characterization of the Cox Broadcasting holding. Compare Connick v. Myers, 461 U.S. 138, 143 n. 5 (1983) (describing Cox Broadcasting as holding that an "action for invasion of privacy cannot be maintained when the subject matter of the publicity is matter of public record.") and Nixon v. Warner Communications, 435 U.S. 589, 609 (1978) (commenting that Cox Broadcasting "affirmed the right of the press to publish accurately information contained in court records open to the public.") with New York v. Ferber, 458 U.S. 747, 759 n. 10 (1982) (saying Cox Broadcasting and Smith "only stand for the proposition that if a newspaper lawfully obtains truthful information about a matter of public significance then state officials may not constitutionally punish publication of the information. . . .").
In our view, however, the underlying policy expressed in Cox Broadcasting and its progeny calls for a rejection of Uranga's contention that the press may be subject to liability for accurately reporting the untruthful content of court records. A rule that the press must independently verify all allegations found in a court record before publishing the information would create the sort of chilling effect on press coverage that the United States Supreme Court has consistently admonished against. The press's role to keep the public apprised of the court system's operations includes notifying the public of criminal charges made against members of the community. By following the accused through the criminal process, the press offers the general public a window into the justice system, a window from which the community can track the law enforcement, prosecutorial and judicial operations, through the ultimate disposition of the charges. If only truthful information were protected, the press would risk liability for reporting that a person had been accused of a crime, as the truth of the accusation would not be known until after trial.
Uranga also seeks to distinguish Cox Broadcasting on the basis of the age and newsworthiness of the information in the court record. He argues that even if information is initially public because of its inclusion in a court file, it can return to private status with the passage of time. Uranga maintains that the lapse of nearly forty years between the filing of the Dir statement and its publication in the Statesman dissipated any possible newsworthiness and effectively removed the information about him from the public domain.
In support of his position, Uranga relies upon a line of California cases, including Briscoe v. Reader's Digest Ass'n, Inc., 483 P.2d 34 (Cal. 1971) and Melvin v. Reid, 297 P. 91 (Cal. 1931). In these cases, when addressing claims for invasion of privacy based upon the publication of historic information about an individual, the California courts engaged in a "newsworthiness" test. This test focuses upon the social value of the facts published, the depth of the intrusion into the plaintiff's private affairs, the extent to which the party voluntarily acceded to a position of public notoriety, the nature of the state's interest in preventing the disclosure, and whether the information is a matter of public record.
We note, however, that a number of other courts have questioned the continued viability of the Briscoe and Melvin line of cases because they pre-dated Cox Broadcasting. See, e.g., Rawlins v. Hutchinson Publ'g Co., 543 P.2d 988, 995 (Kan. 1975) ("Cox, as we read it, would surely dictate a different result in both Melvin and Briscoe."); Montesano v. Donrey Media Group, 668 P.2d 1081, 1088 (Nev. 1983) (noting that Briscoe was issued before Cox Broadcasting); Romaine v. Kallinger, 537 A.2d 284, 295 (N.J. 1988) ("[W]e do not believe that Briscoe can endure as a viable precedent in light of the absolute privilege to report matters in public court records determined in Cox Broadcasting. . . ."). See also Shulman v. Group W. Prod., Inc., 955 P.2d 469, 500 (Cal. 1998) (Kennard, J., concurring) ("I doubt that the holding of [Briscoe] . . . survived the high court's holding in Cox Broadcasting. . . . I do question whether the publication of private facts can be prohibited on the basis of the perceived newsworthiness of the facts without creating a conflict with current First Amendment doctrine.").
In Montesano, the question of applying a newsworthiness standard arose because the action was based upon a newspaper article about a hit-and-run accident twenty years earlier in which a police officer had been killed. The article identified Montesano as a passenger in the automobile that collided with the officer's motorcycle. It noted that Montesano, as well as the driver of the car, had fled the scene of the accident, and that Montesano was adjudicated as a juvenile delinquent. The reference to the incident was part of a story recounting the history of law enforcement officers who had lost their lives in the line of duty. The story related the specifics of Montesano's involvement in the hit-and-run as well as his later conviction for possession of marijuana. The Nevada Supreme Court rejected Montesano's argument that even though the information from the story was drawn from court records, the lapse of twenty years between the incident and the publication eroded the public nature of those facts. The Court concluded that because all the information disclosed was contained in public records, the First Amendment protected the publisher from liability even though the publication occurred twenty years after the reported incident. Montesano, 668 P.2d at 1088.
In Romaine, an invasion of privacy action was brought against the author and publisher of a book detailing an eight-year-old criminal episode in which the plaintiffs were victims. The plaintiffs contended that the defendants should not be entitled to claim a privilege because of the lapse of time between the crimes and the publication. The Supreme Court of New Jersey disagreed, noting that Cox Broadcasting does not suggest that the privilege to publish matters contained in public records is limited if the events are not contemporaneous or recent. Romaine, 537 A.2d at 293.
We likewise conclude that a rule allowing liability for the publication of a court record, based solely upon the passage of time, would not be consistent with Cox Broadcasting where the Supreme Court said:
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. . . . 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.
Cox Broadcasting, 420 U.S. at 496.
We are not without sympathy for Uranga's position. A price has been visited upon him for the Statesman's exercise of its First Amendment rights. The notion of a newsworthiness or staleness test is appealing to permit redress for truly gratuitous intrusions on individual privacy. The flaw in that notion, however, is that such a standard could only be applied on a case-by-case basis with outcome uncertainty and would result in the sort of self-censorship by the press that Cox Broadcasting sought to prevent. We are reminded of the words of Chief Justice Berger in Miami Herald Publ'g Co. v. Tornillo, 418 U.S. 241, 256 (1974), "A responsible press is an undoubtedly desirable goal, but press responsibility is not mandated by the Constitution and like many other virtues it cannot be legislated."
As his final issue on appeal, Uranga argues that even if his invasion of privacy claims cannot stand, summary judgment should not have been granted on his claim for intentional or reckless infliction of emotional distress. We conclude, however, that a privileged publication by the press retains its protected status, regardless of the label selected by the plaintiff for his cause of action. See Dworkin v. Hustler Magazine, Inc., 867 F.2d 1188, 1193 (9th Cir. 1989). Accordingly, Uranga's claim for infliction of emotional distress was subject to dismissal on the same basis as the claims for invasion of privacy.
III. CONCLUSION
The imposition of liability upon the Statesman for publication of the Dir statement, which was found in a public court file, would be violative of the First Amendment. Accordingly, the district court's order of summary judgment, dismissing Uranga's action, is affirmed. Costs on appeal are awarded to respondent pursuant to I.A.R. 40.
Chief Judge PERRY and Judge SCHWARTZMAN CONCUR.