Privacy Torts: Disclosure

§ 652D Publicity Given to Private Life

Restatement of the Law, Second, Torts, § 652 Copyright (c) 1977, The American Law Institute

One who gives publicity to a matter concerning the private life of another is subject to liability to the other for invasion of his privacy, if the matter publicized is of a kind that

(a) would be highly offensive to a reasonable person, and

(b) is not of legitimate concern to the public.

Special Note on Relation of § 652D to the First Amendment to the Constitution. This Section provides for tort liability involving a judgment for damages for publicity given to true statements of fact. It has not been established with certainty that liability of this nature is consistent with the free-speech and free-press provisions of the First Amendment to the Constitution, as applied to state law through the Fourteenth Amendment. Since 1964, with the decision of New York Times Co. v. Sullivan, 376 U.S. 254, the Supreme Court has held that the First Amendment has placed a number of substantial restrictions on tort actions involving false and defamatory publications. These restrictions are treated in Division Five of this Restatement. See especially §§ 580A, 580B and 621.

The Supreme Court has rendered several decisions on invasion of the right of privacy involving this Section and § 652E. The case of Cox Broadcasting Co. v. Cohn (1975) 420 U.S. 469, holds that under the First Amendment there can be no recovery for disclosure of and publicity to facts that are a matter of public record. The case leaves open the question of whether liability can constitutionally be imposed for other private facts that would be highly offensive to a reasonable person and that are not of legitimate concern.

Pending further elucidation by the Supreme Court, this Section has been drafted in accordance with the current state of the common law of privacy and the constitutional restrictions on that law that have been recognized as applying.

Comments: a. Publicity. The form of invasion of the right of privacy covered in this Section depends upon publicity given to the private life of the individual. "Publicity," as it is used in this Section, differs from "publication," as that term is used in § 577 in connection with liability for defamation. "Publication," in that sense, is a word of art, which includes any communication by the defendant to a third person. "Publicity," on the other hand, means that the matter is made public, by communicating it to the public at large, or to so many persons that the matter must be regarded as substantially certain to become one of public knowledge. The difference is not one of the means of communication, which may be oral, written or by any other means. It is one of a communication that reaches, or is sure to reach, the public.

Thus it is not an invasion of the right of privacy, within the rule stated in this Section, to communicate a fact concerning the plaintiff's private life to a single person or even to a small group of persons. On the other hand, any publication in a newspaper or a magazine, even of small circulation, or in a handbill distributed to a large number of persons, or any broadcast over the radio, or statement made in an address to a large audience, is sufficient to give publicity within the meaning of the term as it is used in this Section. The distinction, in other words, is one between private and public communication.

Private: Gill v. Hearst Publishing

40 Cal. 2d 224; 253 P.2d 441; (Cal. 1953)

OPINION BY: SPENCE

[P]laintiffs, husband and wife, sought damages for an alleged invasion of their right of privacy...Plaintiffs' original complaint was predicated solely on the charge that in the October, 1947, issue of Harper's Bazaar, a magazine published and distributed by the corporate defendants, there appeared an unauthorized photograph of plaintiffs taken by defendants' employee while plaintiffs were seated in an affectionate pose at their place of business, a confectionery and ice cream concession in the Farmers' Market in Los Angeles. This photograph was used to illustrate an article entitled "And So the World Goes Round," a short commentary reaffirming "the poet's conviction that the world could not revolve without love," despite "vulgarization" of the sentiment by some, and that ballads may still be written about everyday people in love....

Plaintiffs ... amended their complaint to allege that the same photograph was republished with defendants' consent in the May, 1949, issue of the Ladies' Home Journal, a monthly magazine published and distributed by the Curtis Publishing Company. Specifically, it is here alleged that the "picture" was republished with the "knowledge, permission and consent" of defendants and that "credit" for the publication was given to and required by defendants; that the published photograph depicts plaintiffs in an "uncomplimentary" pose; that plaintiffs' right of privacy was thereby invaded and plaintiffs were subjected to humiliation and annoyance to their damage in the sum of $ 25,000. While the picture was used for illustration of an article entitled "Love", plaintiffs did not allege that defendants also consented to the publication of the article. However, a copy of the picture, with the accompanying article, is attached as an exhibit to the amended complaint. Defendants maintain that since plaintiffs failed to make the direct allegation that defendants consented to the publication of the article, plaintiffs' alleged cause of action must be deemed to rest solely on the publication of the photograph without reference to the accompanying text or caption under the picture.

mere publication of the photograph standing alone does not constitute an actionable invasion of plaintiffs' right of privacy. The right "to be let alone" and to be protected from undesired publicity is not absolute but must be balanced against the public interest in the dissemination of news and information consistent with the democratic processes under the constitutional guaranties of freedom of speech and of the press. The right of privacy may not be extended to prohibit any publication of matter which may be of public or general interest, but rather the "general object in view is to protect the privacy of private life, and to whatever degree and in whatever connection a man's life has ceased to be private, before the publication under consideration has been made, to that extent the protection is to be withdrawn." Moreover, the right of privacy is determined by the norm of the ordinary man; that is to say, the alleged objectionable publication must appear offensive in the light of "ordinary sensibilities." As has been said: ". . . liability exists only if the defendant's conduct was such that he should have realized that it would be offensive to persons of ordinary sensibilities. It is only where the intrusion has gone beyond the limits of decency that liability accrues. . . . It is only when the defendant should know that the plaintiff would be justified in feeling seriously hurt by the conduct that a cause of action exists." Whether there has been such an offensive invasion of privacy is "to some extent one of law."

The picture allegedly was taken at plaintiffs' "place of business," a confectionery and ice cream concession in the Farmers' Market, Los Angeles. It shows plaintiffs, a young man and young woman, seated at a counter near a cash register, the young woman apparently in intent thought, with a notebook and pencil in her hands, which rest on the counter. Plaintiffs are dressed informally and are in a romantic pose, the young man having one arm about the young woman. There are at least five other persons plainly visible in the photograph in positions in close proximity to plaintiffs as the central figures. Apparently the picture has no particular news value but is designed to serve the function of entertainment as a matter of legitimate public interest. However, the constitutional guaranties of freedom of expression apply with equal force to the publication whether it be a news report or an entertainment feature, and defendants' liability accrues only in the event that it can be said that there has been a wrongful invasion of plaintiffs' right of privacy.

In considering the nature of the picture in question, it is significant that it was not surreptitiously snapped on private grounds, but rather was taken of plaintiffs in a pose voluntarily assumed in a public market place. So distinguishable are cases such as Barber v. Time, Inc., 348 Mo. 119, where the picture showed plaintiff in her bed at a hospital, which circumstance was held to constitute an infringement of the right of privacy. Here plaintiffs, photographed at their concession allegedly "well known [***10] to persons and travelers throughout the world" as conducted for "many years" in the world-famed" Farmers' Market, had voluntarily exposed themselves to public gaze in a pose open to the view of any persons who might then be at or near their place of business. By their own voluntary action plaintiffs waived their right of privacy so far as this particular public pose was assumed, for "there can be no privacy in that which is already public." The photograph of plaintiffs merely permitted other members of the public, who were not at plaintiffs' place of business at the time it was taken, to see them as they had voluntarily exhibited themselves. Consistent with their own voluntary assumption of this particular pose in a public place, plaintiffs' right to privacy as to this photographed incident ceased and it in effect became a part of the public domain , as to which they could not later rescind their waiver in an attempt to assert a right of privacy. In short, the photograph did not disclose anything which until then had been private, but rather only extended knowledge of the particular incident to a somewhat larger public than had actually witnessed it at the time of occurrence.

Nor does there appear to be anything "uncomplimentary" or discreditable in the photograph itself, so that its publication might be objectionable as going "beyond the limits of decency" and reasonably indicate defendants' conduct to be such that they "should have realized it would be offensive to persons of ordinary sensibilities." Here the picture of plaintiffs, sitting romantically close to one another, the man with his arm around the woman, depicts no more than a portrayal of an incident which may be seen almost daily in ordinary life -- couples in a sentimental mood on public park benches, in railroad depots or hotel lobbies, at public games, the beaches, the theatres. Such situation is readily distinguishable from cases where the right of privacy has been enforced with regard to the publication of a picture which was shocking, revolting or indecent in its portrayal of the human body. In fact, here the photograph may very well be said to be complimentary and pleasing in its pictorial representation of plaintiffs.

Plaintiffs have failed to cite, and independent research has failed to reveal, any case where the publication of a mere photograph under the circumstances here prevailing -- a picture (1) taken in a pose voluntarily assumed in a public place and (2) portraying nothing to shock the ordinary sense of decency or propriety -- has been held an actionable invasion of the right of privacy. To so hold would mean that plaintiffs "under all conceivable circumstances had an absolute legal right to [prevent publication of] any photograph of them taken without their consent. If every person has such a right, no [periodical] could lawfully publish a photograph of a parade or a street scene. We are not prepared to sustain the assertion of such a right." In so concluding, it must be remembered that there is no contention here that the publication of plaintiffs' photograph was for advertising or trade purposes.

DISSENT CARTER, J. I concur in that part of the majority decision which reverses the judgment for refusal of the trial court to allow plaintiffs to amend. I dissent, however, from the holding that the publication of the photograph alone did not violate plaintiffs' right of privacy.

It is difficult to ascertain upon what ground the majority opinion rests as will hereafter appear. As outlined in Gill v. Curtis Pub. Co., 38 Cal.2d 273, and authorities there cited, there are two main questions involved in right of privacy cases: (1) Is the publication of a character which would offend the feelings and sensibilities of the ordinary person; and (2) if it does so offend, is there such a public interest in the subject matter of the publication with reference to its news or educational significance that it may be published with impunity. In the first instance the question [**446] is whether there has been any tort (violation of the right of privacy) committed, and in the second, having found the tort, is it privileged.

Referring to the second question first, it should be quite obvious that there is no news or educational value whatsoever in the photograph alone. It depicts two persons (plaintiffs) in an amorous pose. There is nothing to show whether they are or are not married. While some remote news significance might be attached to persons in such a pose on the theory that the public likes and is entitled to see persons in such a pose, there is no reason why the publisher need invade the privacy of John and Jane Doe for his purpose. He can employ models [***15] for that purpose and the portion of the public interested will never know the difference but its maudlin curiosity will be appeased.

For the same reasons the discussion in the majority opinion to the effect that plaintiffs consented to the publication because they assumed the pose in a public place is fallacious. But in addition, such a theory is completely at odds with the violation of the right of privacy. By plaintiffs' doing what they did in view of a tiny fraction of the public, does not mean that they consented to observation by the millions [*233] of readers of the defendant's magazine. In effect, the majority holding means that anything anyone does outside of his own home is with consent to the publication thereof, because, under those circumstances he waives his right of privacy even though there is no news value in the event. If such were the case, the blameless exposure of a portion of the naked body of a man or woman in a public place as the result of inefficient buttons, hooks or other clothes-holding devices could be freely photographed and widely published with complete immunity. The majority opinion confuses the situation, as have some of the other cases, with the question of newsworthiness. It has been said that when a person is involved in either a public or private event, voluntarily or involuntarily, of news value, he has waived his right of privacy. Plainly such is not the case where the event is involuntary such as the victim of a holdup. As we said in Gill v. Curtis Pub. Co., supra, 38 Cal.2d 273, 281: "It should be observed, that referring to the use of a person's likeness for a legitimate public interest as not actionable because it indicates a waiver by the person of his right, is of doubtful validity, for it has been applied whether the publication having news value arose out of an incident of his own making or involuntarily and without his fault thrust upon him." There is no basis for the conclusion that the second a person leaves the portals of his home he consents to have his photograph taken under all circumstances thereafter. There being no legitimate public interest, there is no excuse for the publication.

The first ground, that the picture would not offend the senses of an ordinary person, is equally untenable. It is alleged in plaintiffs' complaint, and admitted by the demurrer that it so offended them. It is then a matter of proof at the trial. Certainly reasonable men could view the picture as showing plaintiffs in a sultry or sensual pose. For this court to say as a matter of law that such portrayal would not seriously offend the feelings of an ordinary man is to take an extreme view, to say the least. The question is one for the trier of fact If it is in part a question of law it is so only to the extent that the right does not extend to "supersensitiveness or agoraphobia." An examination of the photograph shows that it would offend the feelings of persons other than oversensitive ones.

Finally, adding to the confusion of the precise ground upon which it rests, the majority opinion makes point of the fact that the picture was not used for advertising purposes, and that if it did not hold as it does, there would be liability for a person's picture appearing among others in a parade. Obviously the first has no bearing upon whether an ordinary man would be offended. The offense would exist or not exist regardless of whether it was used for advertising. The second adds nothing because the parade and those engaging in it are matters of public interest and the persons engaging therein are intentionally placing themselves on public display -- parade.

In announcing a rule of law defining the right of a private citizen to be left alone, and not have his photograph published to the four winds, especially when he is depicted in an uncomplimentary pose, courts should consider the effect of such publication upon the sensibility of the ordinary private citizen, and not upon the sensibility of those persons who seek and enjoy publicity and notoriety and seeing their pictures on public display, or those who are in the "public eye" such as public officials, clergymen, lecturers, actors and others whose professional careers bring them in constant contact with the public and in whom the public or some segment thereof is interested. Obviously anything the latter group may do or say has news or educational value -- such cannot be said of the persons engaged in private business or employment who constitute more than 90 per cent of our population. These private citizens, who desire to be left alone, should have and enjoy a right of privacy so long as they do nothing which can reasonably be said to have news value. Certainly this right is entitled to protection. It seems to me that the law should be so molded as to protect the right of the 90 per cent who do not desire publicity or notoriety and who may be offended by publications such as that here involved. And, when the right of privacy of such a person is violated, and redress is sought in the courts for the indignity suffered, the courts should apply the general rules applicable to the redress of wrongs and submit the issues of fact to a jury when demanded. But the majority of this court, following its present trend, has again seen fit to deny plaintiffs their constitutional right to a jury trial on the issues of fact here presented by arrogating to itself both the fact-finding and lawmaking power. To this holding I most emphatically dissent.

Publicity: Miller v. Motorola

560 N.E.2d 900; 1990 Ill. App.

OPINION BY: BUCKLEY

OPINION

Joy V. Miller (plaintiff) filed an action in the circuit court of Cook County against her employer, Motorola, Inc. (defendant), seeking recovery for damages resulting from defendant's disclosure of her mastectomy surgery to plaintiff's co-employees. Plaintiff appeals from the circuit court's order dismissing her complaint with prejudice pursuant to section 2-615 of the Code of Civil Procedure, contending that her pleadings support claims for the torts of public disclosure of private facts and unreasonable intrusion into the seclusion of another.

Considering first plaintiff's public disclosure claim, this cause of action is defined by the Restatement (Second) of Torts as follows:

"One who gives publicity to a matter concerning the private life of another is subject to liability to the other for invasion of privacy, if the matter publicized is of a kind that (a) would be highly offensive to a reasonable person, and (b) is not of a legitimate concern to the public." (Restatement (Second) of Torts, § 652D (1977).)

To state a cause of action for this tort, the plaintiff must plead and prove that (1) publicity was given to the disclosure of private facts; (2) the facts were private, and not public, facts; and (3) the matter made public was such as to be highly offensive to a reasonable person. The parties here dispute whether the first and third requirements have been adequately plead.

Plaintiff's complaint alleges that she consulted with defendant's resident nurse, Felicia Masters, relative to three leaves of absence taken by plaintiff from 1984 to 1986 to undergo mastectomy and reconstructive surgeries and that Masters advised her during those consultations that her medical information would be confidential. The complaint further alleges that plaintiff, who did not consent to the release of any of her medical information which was maintained at defendant's place of business, was told by a co-employee on or about October 1, 1987, that she had been informed of plaintiff's mastectomy. As a result of defendant's disclosure and plaintiff's belief of the awareness by numerous other employees of her condition, the complaint alleges that plaintiff suffered severe physical, mental and emotional distress and took an early retirement from her 23-year employment with defendant.

Defendant argues that these allegations are insufficient to show that any private facts were publicized because Illinois law requires the disclosure be widespread and that the communication be written. The sole Illinois authority cited by defendant to support its assertion is Midwest Glass Co. v. Stanford Development Co. (1975), , 339 N.E.2d 274, where the court found the plaintiff's allegations of defendant's oral and written communications to persons having an interest in certain condominium units regarding the plaintiff real estate company's failure to pay for mirrors installed by defendant in the units did not state a cause of action for the public disclosure of a private debt. Citing cases from other jurisdictions, the court noted that oral communications cannot be a basis for an invasion of privacy action involving attempts to collect debts. The court, after stating that the privacy right is subject to limitations where legitimate interests are involved and acknowledging the creditor's right to take reasonable action to persuade payment, further noted that the notices of indebtedness there were disseminated not to the general public but only to a limited number of persons who had a natural and proper interest in the ability and reputation of plaintiff to pay its debt.

We do not read Midwest as establishing the general elements asserted by defendant for meeting the publicity requirement in all public disclosure cases. Rather, the decision appears to be an attempt to reconcile a person's privacy rights with the legitimate interests of creditors and other interested parties to a person's indebtedness. As Illinois courts have not yet delved into the necessary elements to establish the "publicity" requirement in public disclosure cases, we will turn to other authorities to assist our determination here.

The comments to the Restatement (Second) of Torts states the following as to the publication requirement:

"[Public disclosure] * * * means that the matter is made public, by communicating it to the public at large, or to so many persons that the matter must be regarded as substantially certain to become one of public knowledge. * * *.

Thus it is not an invasion of the right of privacy * * *, to communicate a fact concerning the plaintiff's private life to a single person or even to a small group of persons. On the other hand, any publication in a newspaper or a magazine, even of small circulation, or in a handbill distributed to a large number of persons, or any broadcast over the radio, or statement made in an address to a large audience, is sufficient to give publicity [to a private fact]."

We agree with the Restatement's appreciation of the importance of a person's privacy with regard to oral communications as well as written communications and its recognition that it is the extent of the communication that is dispositive of whether the communication is publicized.

The Restatement indicates that the required communication must be more than that made to a small group; rather, the communication must be made to the public at large. In acknowledging this general requirement, however, some courts have recognized the need for flexibility in the application of the Restatement's theory to permit recovery for egregious conduct. These courts have realized that in circumstances where a special relationship exists between the plaintiff and the "public" to whom the information has been disclosed, the disclosure may be just as devastating to the person even though the disclosure was made to a limited number of people. The court in Beaumont explained:

" Communication of embarrassing facts about an individual to a public not concerned with that individual and with whom the individual is not concerned obviously is not a 'serious interference' with plaintiff's right to privacy, although it might be 'unnecessary' or 'unreasonable'. An invasion of a plaintiff's right to privacy is important if it exposes private facts to a public whose knowledge of those facts would be embarrassing to the plaintiff. Such a public might be the general public, if the person were a public figure, or a particular public such as fellow employees, club members, church members, family, or neighbors, if the person were not a public figure.”

We adopt the position of the above authorities that the public disclosure requirement may be satisfied by proof that the plaintiff has a special relationship with the "public" to whom the information is disclosed. Plaintiff's allegation that her medical condition was disclosed to her fellow employees sufficiently satisfies the requirement that publicity be given to the private fact.

Turning now to defendant's argument that the pleadings are insufficient to show that the matter disclosed would be objectionable or highly offensive to a reasonable person of ordinary sensibilities, we cannot say as a matter of law that the disclosure of an operation of such a personal nature would not be highly offensive to the reasonable person. Thus, the issue presents a question of fact for the jury to determine.

While we find that plaintiff's pleadings sufficiently state a cause of action for public disclosure of private facts, we do not believe the factual allegations fit into the second category of the privacy torts asserted by plaintiff. The Restatement (Second) of Torts describes HN6 the tort of the unreasonable intrusion upon the seclusion of another in the following manner:

"One who intentionally intrudes, physically or otherwise upon the solitude or seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the intrusion would be highly offensive to a reasonable person."

Illinois courts which have recognized such a cause of action have outlined the following elements necessary to be pled and proven by the plaintiff: (1) an unauthorized intrusion or prying into the plaintiff's seclusion; (2) the intrusion must be offensive or objectionable to a reasonable person; (3) the matter upon which the intrusion occurs must be private; and (4) the intrusion causes anguish and suffering. Plaintiff's factual allegations do not satisfy this action's unauthorized intrusion element. The alleged wrongful actions involve the dissemination or publication of information voluntarily provided to defendant by plaintiff, not defendant's unauthorized intrusion. Thus, without expressing a view as to the appellate court conflict regarding the recognition of this cause of action, we hold that the alleged actions here do not constitute an unreasonable intrusion into the seclusion of another.

Accordingly, we reverse the circuit court's order granting defendant's motion to dismiss with prejudice and remand the cause for further proceedings on plaintiff's complaint alleging the tort of public disclosure of private facts.

REVERSED AND REMANDED.

Newsworthiness: Sipple v. Chronicle Publishing Co.

OPINION BY: CALDECOTT

On September 22, 1975, Sara Jane Moore attempted to assassinate President Gerald R. Ford while the latter was visiting San Francisco, California. Plaintiff Oliver W. Sipple (hereafter appellant or Sipple) who was in the crowd at Union Square, San Francisco, grabbed or struck Moore's arm as the latter was about to fire the gun and shoot at the President. Although no one can be certain whether or not Sipple actually saved the President's life, the assassination attempt did not succeed and Sipple was considered a hero for his selfless action and was subject to significant publicity throughout the nation following the assassination attempt.

Among the many articles concerning the event was a column written by Herb Caen and published by the San Francisco Chronicle on September 24, 1975. The article read in part as follows: "One of the heroes of the day, Oliver 'Bill' Sipple, the ex-Marine who grabbed Sara Jane Moore's arm just as her gun was fired and thereby may have saved the President's life, was the center of midnight attention at the Red Lantern, a Golden Gate Ave. bar he favors. The Rev. Ray Broshears, head of Helping Hands, and Gay Politico, Harvey Milk, who claim to be among Sipple's close friends, describe themselves as 'proud -- maybe this will help break the stereotype'. Sipple is among the workers in Milk's campaign for Supervisor."

Thereafter, the Los Angeles Times and numerous out-of-state newspapers published articles which, referring to the primary source (i.e., the story published in the San Francisco Chronicle), mentioned both the heroic act shown by Sipple and the fact that he was a prominent [***3] member of the San Francisco gay community. Some of those articles speculated that President Ford's failure to promptly thank Sipple for his heroic act was a result of Sipple's sexual orientation. 1

FOOTNOTES

1 For example, the September 25, 1975, issue of the Los Angeles Times wrote inter alia as follows: "A husky ex-marine who was a hero in the attempted assassination of President Ford emerged Wednesday as a prominent figure in the gay community.

"And questions were raised in the gay community if Oliver (Bill) Sipple, 32, was being shunned by the White House because of his associations.

"Sipple, who lunged at Sara Jane Moore and deflected her revolver as she fired at the President, conceded that he is a member of the 'court' of Mike Caringi, who was elected 'emperor of San Francisco' by the gay community.

"A column item in a morning newspaper here strongly implied Wednesday that Sipple is gay.

". . . .

"Harvey Milk, a prominent member of this city's large homosexual community and a longtime friend of Sipple, speculated Wednesday that the absence of a phone call or telegram of gratitude from the White House might not be just an oversight."

Finding the articles offensive to his private life, on September 30, 1975, Sipple filed an action against the California defendants, the Chronicle Publishing Company, Charles de Young Thieriot, the publisher of the Chronicle, Herb Caen, a columnist for the Chronicle, the Times Mirror Company, the owner and publisher of the Los Angeles Times, Click for Enhanced Coverage Linking Searches and Otis Chandler (hereafter together respondents) and numerous out-of-state newspapers. The complaint was predicated upon the theory of invasion of privacy and alleged in essence that defendants without authorization and consent published private facts about plaintiff's life by disclosing that plaintiff was homosexual in his personal and private sexual orientation; that said publications were highly offensive to plaintiff inasmuch as his parents, brothers and sisters learned for the first time of his homosexual orientation; and that as a consequence of disclosure of private facts about his life plaintiff was abandoned by his family, exposed to contempt and ridicule causing him great mental anguish, embarrassment and humiliation. Plaintiff finally alleged that defendants' conduct amounted to malice and oppression calling for both compensatory and punitive damages.

[A]ppellant argues that the individual elements of the invasion of privacy (i.e., public disclosure of private facts; the offensiveness of the public disclosure; and the newsworthiness of the publication as an exception to tort liability) constituted a factual determination which could not be resolved or adjudicated by way of summary procedure.

Before discussing appellant's contentions on the merit, as an initial matter we set out the legal principles governing the case. CA(1)(1) It is well settled that HN1 there are three elements of a cause of action predicated on tortious invasion of privacy. First, the disclosure of the private facts must be a public disclosure Second, the facts disclosed must be private facts, and not public ones Third, the matter made public must be one which would be offensive and objectionable to a reasonable person of ordinary sensibilities. It is likewise recognized, however, that due to the supreme mandate of the constitutional protection of freedom of the press even a tortious invasion of one's privacy is exempt from liability if the publication of private facts is truthful and newsworthy. The latter proposition finds support primarily in Restatement Second of Torts section 652D which provides that " One who gives publicity to a matter concerning the private life of another is subject to liability to the other for invasion of his privacy, if the matter publicized is of a kind that (a) would be highly offensive to a reasonable person, and (b) is not of legitimate concern to the public."

In interpreting the cited section, the cases and authorities emphasize that HN3 the privilege to publicize newsworthy matters incorporated in section 652D is not only immunity accorded by the common law, but also one of constitutional dimension based upon the First Amendment of the United States Constitution. As tersely stated in comment d to section 652D: "When the subject-matter of the publicity is of legitimate public concern, there is no invasion of privacy. [para. ] This has now become a rule not just of common law of torts, but of the Federal Constitution as well."

As an additional preliminary matter, it also bears emphasis that a motion for summary judgment in First Amendment cases is an approved procedure because unnecessarily protracted litigation would have a chilling effect upon the exercise of First Amendment rights and because speedy resolution of cases involving [***9] free speech is desirable While the crucial test as to whether to grant a motion for summary judgment remains the same in free speech cases (i.e., whether there is a triable issue of fact presented in the case), the courts impose more stringent burdens on one who opposes the motion and require a showing of high probability that the plaintiff will ultimately prevail in the case. In the absence of such showing the courts are inclined to grant the motion and do not permit the case to proceed beyond the summary judgment stage

When viewed in light of the aforegoing principles, the summary judgment in this case must be upheld on two grounds. First, as appears from the record properly considered for the purposes of summary judgment, the facts disclosed by the articles were not private facts within the meaning of the law. Second, the record likewise reveals on its face that the publications in dispute were newsworthy and thus constituted a protective shield from liability based upon invasion of privacy.

(A) The facts published were not private.

As pointed out earlier, a crucial ingredient of the tort premised upon invasion of one's privacy is a public disclosure of private facts , that is, the unwarranted publication of intimate details of one's private life which are outside the realm of legitimate public interest. In elaborating on the notion, the cases explain that HN5 there can be no privacy with respect to a matter which is already public or which has previously become part of the "public domain". Moreover, it is equally underlined that there is no liability when the defendant merely gives further publicity to information about the plaintiff which is already public or when the further publicity relates to matters which the plaintiff leaves open to the public eye .

The case at bench falls within the aforestated rules. The undisputed facts reveal that prior to the publication of the newspaper articles in question appellant's homosexual orientation and participation in gay community activities had been known by hundreds of people in a variety of cities, including New York, Dallas, Houston, San Diego, Los Angeles and San Francisco. Thus, appellant's deposition shows that prior to the assassination attempt appellant spent a lot of time in "Tenderloin" and "Castro," the well-known gay sections of San Francisco; that he frequented gay bars and other homosexual gatherings in both San Francisco and other cities; that he marched in gay parades on several occasions; that he supported the campaign of Mike Caringi for the election of "Emperor"; that he participated in the coronation of the "Emperor" and sat at Caringi's table on that occasion; that his friendship with Harvey Milk, another prominent gay, was well-known and publicized in gay newspapers; and that his homosexual association and name [*1048] had been reported in gay magazines (such as Data Boy, Pacific Coast Times, Male Express, etc.) several times before the publications in question. In fact, appellant quite candidly conceded that he did not make a secret of his being a homosexual and that if anyone would ask, he would frankly admit that he was gay. In short, since appellant's sexual orientation was already in public domain and since the articles in question did no more than to give further publicity to matters which appellant left open to the eye of the public, a vital element of the tort was missing rendering it vulnerable to summary disposal.

Although the conclusion reached above applies with equal force to all respondents, we cannot help observing that respondents Times Mirror and its editor are exempt from liability on the additional ground that the Los Angeles Times Click for Enhanced Coverage Linking Searchesonly republished the Chronicle article which implied that appellant was gay. It is, of course, axiomatic that no right of privacy attaches to a matter of general interest that has already been publicly released in a periodical or in a newspaper of local or regional circulation .

(B) The publication was newsworthy.

But even aside from the aforegoing considerations, the summary judgment dismissing the action against respondents was justified on the additional, independent basis that the publication contained in the articles in dispute was newsworthy.

As referred to above, our courts have recognized a broad privilege cloaking the truthful publication of all newsworthy matters. Thus, in Briscoe v. Reader's Digest Association, Inc., supra, 4 Cal.3d at page 541, our Supreme Court stated that a truthful publication is protected if (1) it is newsworthy and (2) it does not reveal facts so offensive as to shock the community notions of decency. While it has been said that the general criteria for determining newsworthiness are (a) the social value of the facts published; (b) the depth of the article's [***14] intrusion into ostensibly private affairs; and (c) the extent to which the individual voluntarily acceded to a position of public notoriety, the cases and authorities further explain that the paramount test of newsworthiness is whether the matter is of legitimate public interest which in turn must be determined according to the community mores. As pointed out in Virgil v. Time, Inc.,: " 'In determining what is a matter of legitimate public interest, account must be taken of the customs and conventions of the community; and in the last analysis what is proper becomes a matter of the community mores. The line is to be drawn when the publicity ceases to be the giving of information to which the public is entitled, and becomes a morbid and sensational prying into private lives for its own sake, with which a reasonable member of the public, with decent standards, would say that he had no concern.'"

In the case at bench the publication of appellant's homosexual orientation which had already been widely known by many people in a number of communities was not so offensive even at the time of the publication as to shock the community notions of decency. Moreover, and perhaps even more to the point, the record shows that the publications were not motivated by a morbid and sensational prying into appellant's private life but rather were prompted by legitimate political considerations, i.e., to dispel the false public opinion that gays were timid, weak and unheroic figures and to raise the equally important political question whether the President of the United States entertained a discriminatory attitude or bias against a minority group such as homosexuals. 2 Thus appellant's case squarely falls within the language of Kapellas in which the California Supreme Court emphasized that "HN9 when, [as here] the legitimate public interest in the published information is substantial, a much greater intrusion into an individual's private life will be sanctioned, especially if the individual willingly entered into the public sphere."

FOOTNOTES

2 For example, the Los Angeles Times reporters explained the newsworthiness of the publication in the following language: "First, since Sipple publicly performed a heroic act of national and international significance, reporting his connections to the gay community presented information contrary to the stereotype of homosexuals as lacking vigor -- a concept apparently much desired to be reported by activist members of the San Francisco gay community.

"Second, the intimation that the President of the United States had refrained from expressing normal gratitude to an individual who perhaps had saved his life raised significant political and social issues as to whether the President entertained discriminatory attitudes toward a minority group, namely, homosexuals."

Appellant's contention that by saving the President's life he did not intend to enter into the limelight and become a public figure can be easily answered. In elaborating on involuntary public figures, Restatement Second of Torts section 652D, comment f, sets out in part as follows: "There are other individuals who have not sought publicity or consented to it, but through their own conduct or otherwise have become a legitimate subject of public interest. They have, in other words, become 'news.' . . . These persons are regarded as properly subject to the public interest, and publishers are permitted to satisfy the curiosity of the public as to its heroes, leaders, villains and victims, and those who are closely associated with [*1050] them. As in the case of the voluntary public figure, the authorized publicity is not limited to the event that itself arouses the public interest, and to some reasonable extent includes publicity given to facts about the individual that would otherwise be purely private."

In summary, appellant's assertion notwithstanding, the trial court could determine as a matter of law that the facts contained in the articles were not private facts within the purview of the law and also that the publications relative to the appellant were newsworthy. Since the record thus fails [***18] to present any triable issue of fact, the trial court was justified (if not mandated) in granting summary judgment and dismiss the case against respondents by way of summary procedure.

The purported appeal from the order denying a motion for new trial is dismissed as the order is not an appealable order.

The judgment is affirmed.

Newsworthiness: Shulman v. Group W Prods.

[U] under California common law the dissemination of truthful, newsworthy material is not actionable as a publication of private facts. If the contents of a broadcast or publication are of legitimate public concern, the plaintiff cannot establish a necessary element of the tort action, the lack of newsworthiness. To so state, however, is merely to begin the necessary legal inquiry, not to end it. It is in the determination of newsworthiness--in deciding whether published or broadcast material is of legitimate public concern--that courts must struggle most directly to accommodate the conflicting interests of individual privacy and press freedom.

Although we speak of the lack of newsworthiness as an element of the private facts tort, newsworthiness is at the same time a constitutional defense to, or privilege against, liability for publication of truthful information. Indeed, the danger of interference with constitutionally protected press freedom has been and remains an ever-present consideration for courts and commentators struggling to set the tort's parameters, and the requirements of tort law and the Constitution have generally been assumed to be congruent. Little is to be gained, therefore, in attempting to keep rigorously separate the tort and constitutional issues as regards newsworthiness, and we have not attempted to do so here. Tort liability, obviously, can extend no further than the First Amendment allows; conversely we see no reason or authority for fashioning the newsworthiness element of the private facts tort to preclude liability where the Constitution would allow it.

...

Newsworthiness--constitutional or common law--is also difficult to define because it may be used as either a descriptive or a normative term. "Is the term 'newsworthy' a descriptive predicate, intended to refer to the fact there is widespread public interest? Or is it a value predicate, intended to indicate that the publication is a meritorious contribution and that the public's interest is praiseworthy?" A position at either extreme has unpalatable consequences. If "newsworthiness" is completely descriptive--if all coverage that sells papers or boosts ratings is deemed newsworthy--it would seem to swallow the publication of private facts tort, for "it would be difficult to suppose that publishers were in the habit of reporting occurrences of little interest." ( Id. at p. 734.) At the other extreme, if newsworthiness is viewed [*219] as a purely normative concept, the courts could become to an unacceptable degree editors of the news and self-appointed guardians of public taste.

The difficulty of finding a workable standard in the middle ground between the extremes of normative and descriptive analysis, and the variety of factual circumstances in which the issue has been presented, have led to considerable variation in judicial descriptions of the newsworthiness concept. As one commentator has noted, the newsworthiness test "bears an enormous social pressure, and it is not surprising to find that the common law is deeply confused and ambivalent about its application." Without attempting an exhaustive survey, and with particular focus on California decisions, we review some of these attempts below.

In the first California privacy case, Melvin v. Reid, supra, 112 Cal. App.. 285, the defendants, using the plaintiff's true maiden name, had produced and exhibited a motion picture based on events of the plaintiff's life, including her having been a prostitute many years earlier. ( Id. at pp. 286-287.) The appellate court held the use of the plaintiff's true name "was unnecessary and indelicate, and a willful and wanton disregard of that charity which should actuate us in our social intercourse." ( Id. at p. 291.) In short, such use was "not justified by any standard of morals or ethics known to us." ( Id. at p. 292.)

This court took a similar, albeit less overtly moralistic, approach in Gill v. Curtis Publishing Co., supra, 38 Cal. 2d 273 (Gill v. Curtis), involving a Ladies Home Journal article entitled Love that used a photograph of the plaintiffs embracing to illustrate the "wrong" kind of love, "founded upon 100 per cent sex attraction." ( Id. at p. 275.) As the Court of Appeal had done in Melvin v. Reid, supra, 112 Cal. App.. 285, we attempted to distinguish a disclosure of private facts that was closely connected to the newsworthiness of the publication from one that superfluously exposed the subject's private life to public view. Assuming the article's contents "to be within the range of public interest in dissemination of news, information or education," still "the public interest did not require the use of any particular person's likeness nor that of plaintiffs without their consent." ( Gill v. Curtis, supra, at p. 279.) Although we therefore did not need to decide on a general standard of newsworthiness, we noted that "[f]actors deserving consideration may include the medium of publication, the extent of the use, the public interest served by the publication, and the seriousness of the interference with the person's privacy." ( Id. at pp. 278-279.)

A year later, without explicitly overruling Gill v. Curtis, we reached a seemingly inconsistent conclusion in another case involving the same publication. We held no action for invasion of privacy would lie solely for publication of the photograph of the plaintiffs embracing. The photograph itself, we reasoned, enjoyed some measure of constitutional protection despite its slight or nonexistent informational value. "Apparently the picture has no particular news value but is designed to serve the function of entertainment as a matter of legitimate public interest. [Citation.] However, the constitutional guarantees of freedom of expression apply with equal force to the publication whether it be a news report or an entertainment feature . . . ." ( Id . at p. 229.) 5 The author of Gill v. Curtis dissented from this portion of Gill v. Hearst, arguing, "it should be quite obvious that there is no news or educational value whatsoever in the photograph alone. It depicts two persons (plaintiffs) in an amorous pose. . . . While some remote news significance might be attached to persons in such a pose on the theory that the public likes and is entitled to see persons in such a pose, there is no reason why the publisher need invade the privacy of John and Jane Doe for his purpose. He can employ models for that purpose and the portion of the public interested will never know the difference but its maudlin curiosity will be appeased."

FOOTNOTES

5 We went on to hold that publication of the photograph, taken at the plaintiffs' ice cream booth in the Los Angeles Farmers' Market, "did not disclose anything which until then had been private," nor was the depiction of the plaintiffs objectionable or offensive to a reasonable person. ( Gill v. Hearst, supra, 40 Cal. 2d at pp. 230-231.)

This court next addressed the question in Kapellas v. Kofman, supra, 1 Cal. 3d 20 (Kapellas), involving a newspaper editorial that allegedly violated the privacy rights of the children of a woman running for public office by revealing certain juvenile offenses and peccadilloes for which the children had been arrested or detained. Drawing from academic comment and the two Gill decisions, we attempted a general analysis involving the balancing of three factors: "In determining whether a particular incident is 'newsworthy' and thus whether the privilege shields its truthful publication from liability, the courts consider a variety of factors, including the social value of the facts published, the depth of the article's intrusion into ostensibly private affairs, and the extent to which the party voluntarily acceded to a position of public notoriety." (Kapellas, supra, at p. 36.) Applying these factors, we articulated a general rule favoring dissemination of relevant information regarding candidates for public office, including at least some information about their families: "Generally, courts will be most reluctant to impede the free flow of any truthful information that may be relevant to a candidate's qualifications for office. Although the conduct of a candidate's children in many cases may not appear particularly relevant to his qualifications for office, normally the public should be permitted to determine the importance or relevance of the [*221] reported facts for itself. If the publication does not proceed widely beyond the bounds of propriety and reason in disclosing facts about those closely related to an aspirant for public office, the compelling public interest in the unfettered dissemination of information will outweigh society's interest in preserving such individuals' rights to privacy." ( Id. at pp. 37-38, fn. omitted.) Following the articulated principle, we held the information disclosed, if true, was absolutely privileged. ( Id. at p. 39.)

We employed the Kapellas factors in Briscoe v. Reader's Digest Association, Inc., supra, 4 Cal. 3d 529 (Briscoe). A magazine article on truck hijacking included a description of such a crime the plaintiff had committed 11 years earlier, using the plaintiff's true name. Conceding that "reports of the facts of past crimes are newsworthy" ( id. at p. 537), we nonetheless concluded a jury could reasonably find the plaintiff's identity as a former hijacker to be nonnewsworthy. The identification of a rehabilitated person as a former criminal was, under the circumstances, of "minimal social value" ( id. at p. 541), would tend to interfere with the state's interest in rehabilitating criminals and returning them to society, and could be regarded as a serious intrusion on private matters ( id. at p. 542). 6

FOOTNOTES

6 Our discussion in Briscoe largely reflects the correct view that newsworthiness is a complete bar against liability for publication of truthful private facts. In one passage, however, we articulated the possibly different view that "a truthful publication is constitutionally protected if (1) it is newsworthy and (2) it does not reveal facts so offensive as to shock the community's notions of decency."We derived this dual standard from a dictum in Time, Inc. v. Hill, supra, 385 U.S. at page 383, footnote 7 [87 S. Ct. at pages 539-540]. The Time footnote, however, concerned newsworthiness as a defense to liability under a New York statute and merely suggested that such a defense may not exist when the publication is " 'so intimate and so unwarranted . . . as to outrage the community's notions of decency.' " (Ibid.) Rather than establishing a requirement separate from newsworthiness, the Time dictum appears to fit within the analysis of newsworthiness as a balancing of intrusion against justification that we adopted in Kapellas and applied in Briscoe.

In Briscoe, while employing Kapellas's analysis of competing interests, we also recognized the strong constitutional policy against fact-dependent balancing of First Amendment rights against other interests. "Because the categories with which we deal--private and public, newsworthy and nonnewsworthy--have no clear profile, there is a temptation to balance interests in ad hoc fashion in each case. Yet history teaches us that such a process leads too often to discounting society's stake in First Amendment rights. [Citation.] We therefore strive for as much predictability as possible within our system of case-by-case adjudication, lest we unwittingly chill First Amendment freedoms." (Briscoe, supra, 4 Cal. 3d at pp. 542-543, fn. 18.) We believed, however, the danger of chilling future expression by our holding in Briscoe was slight because the facts of the case clearly negated protection. [*222] (Ibid.) Our holding of possible liability in that case, moreover, was expressly limited to narrow circumstances to be established at trial: that the plaintiff, having been punished for his past crime, was now "a rehabilitated member of society"; that identification of him as a former criminal was not only highly offensive but "injurious" to his efforts at leading an ordinary law-abiding life; that the publication was made with reckless disregard for its offensiveness; and that the defendant had no "independent justification" for printing plaintiff's identity. (Id. at p. 543.)

In the most recent of this court's decisions on publication of private facts, we applied the same general analysis of newsworthiness as in Briscoe but distinguished that case on its facts. ( Forsher v. Bugliosi, supra, 26 Cal. 3d at pp. 809-813 (Forsher).) We held the defendant's book, Helter-Skelter, did not invade the plaintiff's privacy by mentioning his name in connection with the disappearance of an attorney who had represented a defendant in the highly publicized Tate-LaBianca killings. Briscoe, we observed, was "an exception to the more general rule that 'once a man has become a public figure, or news, he remains a matter of legitimate recall to the public mind to the end of his days.' " (Forsher, supra, at p. 811.) As the exceptional reasons for protecting Briscoe's identity did not apply to Forsher, we concluded the identification of Forsher in connection with the death of an attorney formerly involved in the case was of continuing public concern at the time of publication. ( Id. at p. 813.)

Our prior decisions have not explicitly addressed the type of privacy invasion alleged in this case: the broadcast of embarrassing pictures and speech of a person who, while generally not a public figure, has become involuntarily involved in an event or activity of legitimate public concern. We nonetheless draw guidance from those decisions, in that they articulate HN7 the competing interests to be balanced. First, the analysis of newsworthiness does involve courts to some degree in a normative assessment of the "social value" of a publication. (Kapellas, supra, 1 Cal. 3d at p. 36.) All material that might attract readers or viewers is not, simply by [**484] [***858] virtue of its attractiveness, of legitimate public interest. Second, the evaluation of newsworthiness depends on the degree of intrusion and the extent to which the plaintiff played an important role in public events (ibid.), and thus on a comparison between the information revealed and the nature of the activity or event that brought the plaintiff to public attention. "Some reasonable proportion is . . . to be maintained between the events or activity that makes the individual a public figure and the private facts to which publicity is given. Revelations that may properly be made concerning a murderer or the President of the United States would not be privileged if they were to be made concerning [*223] one who is merely injured in an automobile accident." ( Rest.2d Torts, § 652D, com. h, p. 391.) 7

FOOTNOTES

7 Justice Brown, in her concurring and dissenting opinion, argues the lawfulness or offensiveness of the news media's conduct, discussed in part II of this opinion (post, at p. 230 et seq.), is "clearly relevant" not only to the tort of intrusion into private places, conversations or other matters, but also to whether the material published is "newsworthy." (Conc. & dis. opn. of Brown, J., post, at p. 252, fn. 2.) Citing no other authority, Justice Brown attempts to find support for her argument in Kapellas, supra, 1 Cal. 3d at page 36. The court in Kapellas, however, did not mention or address any issue arising from the legality of the manner in which information had been gathered. Indeed, the facts published in Kapellas were presumed by the court "already [to] have been matters of public record." (Id. at p. 38.)

Courts balancing these interests in cases similar to this have recognized that, when a person is involuntarily involved in a newsworthy incident, not all aspects of the person's life, and not everything the person says or does, is thereby rendered newsworthy. "Most persons are connected with some activity, vocational or avocational, as to which the public can be said as a matter of law to have a legitimate interest or curiosity. To hold as a matter of law that private facts as to such persons are also within the area of legitimate public interest could indirectly expose everyone's private life to public view." ( Virgil v. Time, Inc., supra, 527 F.2d at p. 1131; accord, Gilbert v. Medical Economics Co., supra, 665 F.2d at p. 308 (Gilbert).) This principle is illustrated in the decisions holding that, while a particular event was newsworthy, identification of the plaintiff as the person involved, or use of the plaintiff's identifiable image, added nothing of significance to the story and was therefore an unnecessary invasion of privacy. For the same reason, a college student's candidacy for president of the student body did not render newsworthy a newspaper's revelation that the student was a transsexual, where the court could find "little if any connection between the information disclosed and [the student's] fitness for office." Similarly, a mother's private words over the body of her slain son as it lay in a hospital room were held nonnewsworthy despite undisputed legitimate public interest in the subjects of gang violence and murder.

Consistent with the above, courts have generally protected the privacy of otherwise private individuals involved in events of public interest "by requiring that a logical nexus exist between the complaining individual and the matter of legitimate public interest." The contents of the publication or broadcast are protected only if they have "some substantial relevance to a matter of legitimate public interest." Thus, recent decisions have generally tested newsworthiness with regard to such individuals by assessing the logical relationship or nexus, or the lack thereof, between the events or activities that brought the person into the public eye and the particular facts disclosed. … This approach accords with our own prior decisions, in that it balances the public's right to know against the plaintiff's privacy interest by drawing a protective line at the point the material revealed ceases to have any substantial connection to the subject matter of the newsworthy report. ( This approach also echoes the Restatement commentators' widely quoted and cited view that legitimate public interest does not include "a morbid and sensational prying into private lives for its own sake . . . ." ( Rest.2d Torts, § 652D, com. h, p. 391, italics added; see, e.g., Sipple v. Chronicle Publishing Co. (1984) 154 Cal. App. 3d 1040, 1048-1049 [201 Cal. Rptr. 665]; Virgil v. Time, Inc., supra, 527 F.2d at p. 1129; Gilbert, supra, 665 F.2d at pp. 307-308; see also Haynes v. Alfred A. Knopf, Inc., supra, 8 F.3d at p. 1232 [private facts not newsworthy "when the community has no interest in them beyond the voyeuristic thrill of penetrating the wall of privacy that surrounds a stranger"].)

An analysis measuring newsworthiness of facts about an otherwise private person involuntarily involved in an event of public interest by their relevance to a newsworthy subject matter incorporates considerable deference to reporters and editors, avoiding the likelihood of unconstitutional interference with the freedom of the press to report truthfully on matters of [*225] legitimate public interest. 8 In general, it is not for a court or jury to say how a particular story is best covered. The constitutional privilege to publish truthful material "ceases to operate only when an editor abuses his broad discretion to publish matters that are of legitimate public interest." (Gilbert, supra, 665 F.2d at p. 308.) By confining our interference to extreme cases, the courts "avoid[] unduly limiting . . . the exercise of effective editorial judgment." Nor is newsworthiness governed by the tastes or limited interests of an individual judge or juror; a publication is newsworthy if some reasonable members of the community could entertain a legitimate interest in it. Our analysis thus does not purport to distinguish among the various legitimate purposes that may be served by truthful publications and broadcasts. As we said in Gill v. Hearst, supra, 40 Cal. 2d at page 229, HN11 "the constitutional guarantees of freedom of expression apply with equal force to the publication whether it be a news report or an entertainment feature . . . ." Thus, newsworthiness is not limited to "news" in the narrow sense of reports of current events. "It extends also to the use of names, likenesses or facts in giving information to the public for purposes of education, amusement or enlightenment, when the public may reasonably be expected to have a legitimate interest in what is published."

FOOTNOTES

8 Although we therefore believe our conclusions in this case accord with the dictates of the federal Constitution, we cannot be sure without clearer guidance from the United States Supreme Court. Unless we abandon the private facts tort completely, we appear to be at a theoretical risk of creating unconstitutional liability, since the high court has thus far declined to decide "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. . . ." (Cox Broadcasting Corp., supra, 420 U.S. at p. 491 [95 S. Ct. at p. 1044]; see also Florida Star, supra, 491 U.S. at p. 533 [109 S. Ct. at p. 2609] [again declining to answer that question]; Time, Inc. v. Hill, supra, 385 U.S. at p. 383, fn. 7 [87 S. Ct. at pp. 539-540] [in false light privacy case, reserving question whether truthful publication of offensive private facts may constitutionally be punished, and noting a commentator's view that newsworthiness privilege may be so " 'overpowering as virtually to swallow the [privacy] tort' "].)

Finally, an analysis focusing on relevance allows courts and juries to decide most cases involving persons involuntarily involved in events of public interest without "balanc[ing] interests in ad hoc fashion in each case" (Briscoe, supra, 4 Cal. 3d at p. 542, fn. 18). The articulation of standards that do not require "ad hoc resolution of the competing interest in each . . . [*226] case" ( Gertz v. Robert Welch, Inc. (1974) 418 U.S. 323, 343 [94 S. Ct. 2997, 3009, 41 L. Ed. 2d 789]) is favored in areas affecting First Amendment rights, because the relative predictability of results reached under such standards minimizes the inadvertent chilling of protected speech, and because standards that can be applied objectively provide a stronger shield against the unconstitutional punishment of unpopular speech. (Ibid.; Nimmer, The Right to Speak from Times to Time: First Amendment Theory Applied to Libel and Misapplied to Privacy (1968) 56 Cal.L.Rev. 935, 938-945 (hereafter Nimmer); see also Reno v. American Civil Liberties Union (1997) 521 U.S. 844 [117 S. Ct. 2329, 2341, 2344-2345, 138 L. Ed. 2d 874] [Internet speech prohibitions employing undefined term "indecent" and appealing to "community standards" of what is "patently offensive" are, absent further narrowing of prohibitions, unconstitutionally vague and uncertain.].)

On the other hand, HN13 no mode of analyzing newsworthiness can be applied mechanically or without consideration of its proper boundaries. To observe that the newsworthiness of private facts about a person involuntarily thrust into the public eye depends, in the ordinary case, on the existence of a logical nexus between the newsworthy event or activity and the facts revealed is not to deny that the balance of free press and privacy interests may require a different conclusion when the intrusiveness of the revelation is greatly disproportionate to its relevance. Intensely personal or intimate revelations might not, in a given case, be considered newsworthy, especially where they bear only slight relevance to a topic of legitimate public concern. (See Kapellas, supra, 1 Cal. 3d at pp. 37-38 [public interest in free flow of information will outweigh interest in individual privacy "[i]f the publication does not proceed widely beyond the bounds of propriety and reason in disclosing facts about those closely related to an aspirant for public office . . ."]; Haynes v. Alfred A. Knopf, Inc., supra, 8 F.3d at pp. 1234-1235 [although personal facts revealed in book at issue were newsworthy because germane to the book's subject matter, that protection may not extend to publication of "intimate physical details the publicizing of which would be not merely embarrassing and painful but deeply shocking to the average person"].) 9

FOOTNOTES

9 Contrary to Justice Brown's characterization of the foregoing test for newsworthiness as a "radical departure" from Kapellas, supra, 1 Cal. 3d 20 (conc. & dis. opn. of Brown, J., post, at p. 251), the stated test is a natural adaptation of Kapellas to a different kind of situation, one involving a private figure involuntarily caught up in a newsworthy event. (Cf. Forsher, supra, 26 Cal. 3d at p. 812 [applying both the Kapellas factors and additional relevant considerations].) To track the language of Kapellas, supra, 1 Cal. 3d at page 36, the "incident" in this case--i.e., the accident and rescue--concededly is of legitimate public concern. Viewing, therefore, the "facts published" in the context of the whole, the broadcast's intrusion into Ruth's private life is minimal as against the substantial relevance the facts bear to the subject matter, in particular the various aspects of the rescue and Nurse Carnahan's responsibilities in connection therewith. That Ruth did not "voluntarily accede[] to a position of public notoriety" is not determinative, but only one of a "variety of factors" to be weighed. (Ibid.)

A few words are in order at this point regarding the right of privacy secured by article I, section 1 of the California Constitution. The Court of Appeal, citing Hill v. National Collegiate Athletic Assn., supra, 7 Cal. 4th at pages 37-38 (Hill), equated the judicial balancing undertaken in delineation of the common law right of privacy to the balancing of interests this court has prescribed for evaluating claims raised under our state's constitutional right of privacy. Defendants attack the Court of Appeal's adoption of Hill's balancing test in the common law tort context, arguing that under the federal Constitution newsworthiness is a complete bar to liability, rather than merely an interest to be balanced against private or state-protected interests.

We agree with defendants that HN14 the publication of truthful, lawfully obtained material of legitimate public concern is constitutionally privileged and does not create liability under the private facts tort. As discussed above, however, a certain amount of interest-balancing does occur in deciding whether material is of legitimate public concern, or in formulating rules for that decision. To that extent, the Court of Appeal's analogy to Hill was not in error.

In Hill, we held, inter alia, that HN15 article I, section 1 of the California Constitution protects Californians against invasions of privacy by nongovernmental as well as governmental parties. (Hill, supra, 7 Cal. 4th at pp. 15-20.) Decisions concerning the tort actions for invasion of privacy have, in addition, sometimes linked the plaintiffs' protected interest to that constitutional provision. The Hill court itself sought to "draw upon the one hundred years of legal experience surrounding the term 'privacy' " in formulating the correct analysis of claims brought under the state Constitution. (Hill, supra, 7 Cal. 4th at p. 27.) Thus, these two sources of protection for privacy--the common law and the state Constitution--are not unrelated. Nothing in Hill or our more recent constitutional privacy cases, however, suggests that the conceptual framework developed for resolving privacy claims under the California Constitution was intended to supplant the common law tort analysis or preclude its independent development. Nor did we have occasion in those cases to address the analytical means by which a state-created privacy right, whether of constitutional or common law origin, may be accommodated to conflicting and superior demands of federal constitutional interests, as for example those protected by the First Amendment.

Turning now to the case at bar, we consider whether the possibly private facts complained of here--broadly speaking, Ruth's appearance and words during the rescue and evacuation--were of legitimate public interest. If so, summary judgment was properly entered. CA(5a)(5a) "[HN16 B]ecause unnecessarily protracted litigation would have a chilling effect upon the exercise of First Amendment rights, speedy resolution of cases involving free speech is desirable. [Citation.] Therefore, summary judgment is a favored remedy [in such cases] . . . ." Nonetheless, the basic question raised on a defense motion for summary judgment, and on review of such judgment, is the same in a privacy action against media defendants as in other cases: Does the motion record demonstrate the existence of triable issues of fact, or was the defense entitled to judgment as a matter of law?

We agree at the outset with defendants that the subject matter of the broadcast as a whole was of legitimate public concern. Automobile accidents are by their nature of interest to that great portion of the public that travels frequently by automobile. The rescue and medical treatment of accident victims is also of legitimate concern to much of the public, involving as it does a critical service that any member of the public may someday need. The story of Ruth's difficult extrication from the crushed car, the medical attention given her at the scene, and her evacuation by helicopter was of particular interest because it highlighted some of the challenges facing emergency workers dealing with serious accidents.

The more difficult question is whether Ruth's appearance and words as she was extricated from the overturned car, placed in the helicopter and transported to the hospital were of legitimate public concern. Pursuant to the analysis outlined earlier, we conclude the disputed material was newsworthy as a matter of law. One of the dramatic and interesting aspects of the story as a whole is its focus on flight nurse Carnahan, who appears to be in charge of communications with other emergency workers, the hospital base and Ruth, and who leads the medical assistance to Ruth at the scene. Her work is portrayed as demanding and important and as involving a measure of personal risk (e.g., in crawling under the car to aid Ruth despite warnings that gasoline may be dripping from the car). The broadcast segment makes apparent that this type of emergency care requires not only medical knowledge, concentration and courage, but an ability to talk and listen to severely traumatized patients. One of the challenges Carnahan faces in assisting Ruth is the confusion, pain and fear that Ruth understandably feels in the aftermath of the accident. For that reason the broadcast video depicting Ruth's injured physical state (which was not luridly shown) and audio showing her disorientation and despair were substantially relevant to the segment's newsworthy subject matter.

Plaintiffs argue that showing Ruth's "intimate private, medical facts and her suffering was not necessary to enable the public to understand the significance of the accident or the rescue as a public event." The standard, however, is not necessity. That the broadcast could have been edited to exclude some of Ruth's words and images and still excite a minimum degree of viewer interest is not determinative. Nor is the possibility that the members of this or another court, or a jury, might find a differently edited broadcast more to their taste or even more interesting. The courts do not, and constitutionally could not, sit as superior editors of the press....