Posted by Eugene Volokh:
Publishing Names of Accused Criminals Whom D.A. Declined to Prosecute =
Actionable Invasion of Privacy?
http://volokh.com/archives/archive_2009_08_09-2009_08_15.shtml#1250289163
So holds a [1]2-1 panel decision of the Texas Court of Appeals in
Freedom Communications, Inc. v. Coronado.
The case involved a political ad attacking an incumbent D.A. for
"st[anding] against children who have been sexually abused, sexually
assaulted, or physically injured, and st[anding] with those who would
commit such heinous crimes." The ad included the names of plaintiffs
as people accused of "sexual abuse of child" or "physical abuse of
child," and noted that the disposition in the cases was "declined at
intake."
The plaintiffs then sued both for defamation and for invasion of
privacy (on a "public disclosure of private facts" theory). The court
held that the defamation claim could go to trial, because in context,
the ad suggested that defendants were indeed guilty, and not just that
they had been accused. That might be sound (though the [2]dissent
disagreed), but in any case isn't my concern here.
But the trouble is that the court also held that the invasion of
privacy claim could also go forward. This claim does not require proof
of falsehood (this is a disclosure of private facts claim, not a false
light invasion of privacy claim); and the court's rationale would
apply equally to an accurate report:
In order to recover damages for this tort, the appellees must prove
that: (1) publicity was given to matters concerning the appellees'
private life [14]; (2) the matter publicized is not of legitimate
public concern; and (3) the publication of those matters would be
highly offensive to a reasonable person of ordinary sensibilities.
[Footnote 14:] The disclosure of facts that are a matter of public
record will not give rise to a public disclosure invasion of
privacy claim.
[Footnote 10 (moved):] [T]he appellees also note that the Case
Disposition Report contained "strictly confidential, non-public
information, which ... remains confidential when it is transmitted
to the CCCAC" and are "not public records at all." However, the
fair report privilege statute does not require that a government
report be "public" in order for the privilege to apply. We need not
determine whether the Case Disposition Report was in fact "strictly
confidential" because it has no bearing on the issue of whether the
fair report privilege applies.
Freedom argues that it conclusively negated all three of the
essential elements of the appellees' invasion of privacy claim.
First, it contends that it conclusively established that the
information included in the advertisements was of "legitimate
public concern" because it discussed "alleged criminal activity" in
Cameron County. "The determination whether a given matter is one of
legitimate public concern must be made in the factual context of
each particular case, considering the nature of the information and
the public's legitimate interest in its disclosure." Freedom notes
that the Fifth Circuit has held that "there is a legitimate public
interest in facts tending to support an allegation of criminal
activity, even if the prosecutor does not intend to pursue a
conviction." However, the advertisements at issue here did not
disclose any underlying facts that would support an allegation of
criminal activity against the appellees.
Rather, the advertisements stated only that such allegations were
in fact made against the appellees and were subsequently reported
to the District Attorney's office. While underlying facts
reflecting criminal activity can certainly be of legitimate public
interest, Freedom points to no authority, and we find none, holding
that the public has a legitimate interest in the mere fact that an
individual has been accused of a crime. [15] Absent such authority,
we cannot say that the information contained in the advertisement
was of "legitimate public concern" as a matter of law.
[Footnote 15:] In arguing that the subject matter of the
advertisements was "of legitimate public concern," the dissent
notes that "[p]rotection of children from abuse is of the utmost
importance in Texas" (citations omitted). By suggesting that the
Court's decision today is somehow at odds with the goal of
"[p]rotect[ing] children from abuse," the dissent has ironically --
but unsurprisingly -- employed the same type of moralistic
intimidation that Zavaletta used to tar his opponent as complicit
in child abuse. Of course, this Court agrees with the general
proposition that the protection of children from abuse is a supreme
public policy objective of this state. However, the dissent does
not explain how the publication of mere accusations of child abuse
without any supporting evidence, as is the case here, serves to
advance this cause. The dissent also fails to recognize that by
classifying a mere accusation of child abuse as an item "of
legitimate public concern," it is adopting the same misguided view
that the dissent derisively attributes to "many individuals ... in
our society" -- that is, it ignores "the ideal that an accused is
innocent until proven guilty."
This strikes me as a very dangerous result, because it undermines the
ability to report, even accurately, about accusations of crime. I've
generally criticized the disclosure tort even as to [3]other matters,
but it strikes me as especially unsound here: One can't decide whether
the prosecutor is operating properly in declining to prosecute cases
if one must face ruinous liability for even mentioning the name of a
person who is accused.
What's more, this result seems to me hard to reconcile with [4]Florida
Star v. B.J.F., which set aside a verdict for publishing the name of a
sex crime victim. There, as here, a newspaper was sued for publishing
names drawn from a government report. Even if the information in the
Case Disposition Report was supposed to be kept confidential, in
Florida Star the victim's name was also supposed to be kept
confidential (a police officer released the name in violation of
government policy).
But the Court correctly concluded, I think, that "[I]f a newspaper
lawfully obtains truthful information about a matter of public
significance then state officials may not constitutionally punish
publication of the information, absent a need to further a state
interest of the highest order." And no such need can be sufficiently
shown when the "sensitive information is in the government's custody,"
where the government has considerable "power to forestall or mitigate
the injury caused by [the] release [of the information]" by
"classify[ing] certain information, establish[ing] and enforc[ing]
procedures ensuring its redacted release, and extend[ing] 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."
Such a less drastic means may be imperfect (mistakes do happen), but
the Court concluded that the government must use that means, rather
than punishment of disclosure. And if, as the Florida Star court held,
the name of a crime victim may be published because it is sufficiently
relevant to a matter of "public significance" -- even before a trial
in which the fact of the crime has been officially proved -- then the
same should be true as to the name of the alleged criminal.
References
1.
http://www.13thcoa.courts.state.tx.us/opinions/PDFOpinion.asp?OpinionId=17905
2.
http://www.13thcoa.courts.state.tx.us/opinions/PDFOpinion.asp?OpinionId=17906
3. http://www.law.ucla.edu/volokh/privacy.htm
4.
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=491&invol=524
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